Mr. Trump’s adversaries often look to the courts for relief, but there’s no remedy there for his tirades. The First Amendment protects all but the most explicit incitements to violence, so Mr. Trump has little reason to fear that prosecutors will bring charges against him for those remarks.
The most notorious moment of Mr. Trump’s presidency also demonstrated the limits of relying on the courts as a meaningful check on his own provocations. In his speech on the Ellipse on Jan. 6, 2021, Mr. Trump urged his supporters to “fight like hell,” and many did just that at the Capitol. But they paid a price, and he didn’t. In yet another example of Mr. Trump’s life without consequences, more than 1,000 people have been charged for their conduct on Jan. 6, and many if not most of them broke the law because they thought that’s what the president at the time wanted. Still, the special counsel Jack Smith refrained from charging Mr. Trump with inciting the violence, undoubtedly because of the Constitution’s broad protection for freedom of speech. Incitements like Mr. Trump’s, even if they are not crimes in themselves, can have dangerous consequences, as they did on Jan. 6.
Angry people, especially those predisposed toward violence, can be set off by encouragement that falls well short of the legal standard for criminal incitement. To see the consequences of such constitutionally protected provocation, one need only look to the case of Timothy McVeigh, who set off the bomb at the Alfred P. Murrah Federal Building in Oklahoma City that killed 168 people on April 19, 1995. More than a decade before the attack, when Mr. McVeigh was still in high school, he first read “The Turner Diaries,” a novel about a right-wing rebellion against the federal government. Earl Turner, the hero and narrator of the novel, ignites a civil war by setting off a truck bomb next to the F.B.I. building in Washington — the act that planted the idea for what Mr. McVeigh later did in Oklahoma City. But once Bill Clinton took office in 1993, McVeigh’s revulsion at the new president prompted him to move the idea from the back of his mind to a definite plan of attack.
Mr. McVeigh was specifically outraged at the F.B.I.’s raid on the Branch Davidian complex, near Waco, Texas, which led to the death of 82 Branch Davidians and four federal agents and ended on April 19, 1993, and at Mr. Clinton’s signing of a ban on assault weapons, which took place the following year.
Mr. McVeigh’s anger was boiling at a time of incendiary political language in the mid-1990s, when, for example, Newt Gingrich, who would go on to become speaker of the House in 1995, said: “People like me are what stand between us and Auschwitz. I see evil all around me every day.” In particular, on his long drives across the country, Mr. McVeigh became a dedicated listener to Rush Limbaugh, whose radio talk show was in its heyday. Mr. Limbaugh was saying things like, “The second violent American revolution is just about — I got my fingers about a quarter of an inch apart — is just about that far away.” Of course, all of this rhetoric, from the words of the novel to those of Mr. Gingrich and Mr. Limbaugh, was protected by the First Amendment.