Is Lindsey Graham’s ‘riots in the streets’ comment incitement? A UNC law expert weighs in
Lindsey Graham, a Republican senator from South Carolina, warned during an appearance on Fox News that there will be riots in the streets if former President Donald Trump is prosecuted by federal officials.
Graham’s comments are in reference to the Federal Bureau of Investigation’s search of Trump’s Mar-a-Lago property on Aug. 8 where classified documents were obtained as part of an investigation into mishandled information and obstruction of justice, CNBC reported.
The Justice Department released a redacted affidavit from the early August search of Trump’s home which revealed Trump had in his possession 184 different documents marked as classified, with 67 of them categorized as “confidential,” 92 of them categorized as “secret,” and 25 of them categorized as “top secret.”
In response to the raid, Sen. Graham told Fox News that the public will riot if President Trump is prosecuted.
“If they try to prosecute President Trump for mishandling classified information after Hillary Clinton set up a server in her basement, there literally will be riots in the street. I worry about our country,” he said.
The comments sparked debate on whether Graham incited violence with his remarks.
But, are his comments really considered “incitement” by the law’s standard?
Mary-Rose Papandrea, a professor at the University of North Carolina School of Law and constitutional law expert, says Graham is in the clear despite accusations of incitement.
“Senator Graham’s comments are definitely not incitement, at least not as that term is legally defined,” Papandrea told The Charlotte Observer. “To be considered incitement outside of the protections of the First Amendment, speech must expressly advocate unlawful conduct. In this statement, Senator Graham did not advocate for riots in the street — he merely predicted riots in the street.”
Even if Graham had outright said that people should riot in the street if Trump is prosecuted, that statement still would not be incitement because it does not meet the imminence standard required by the law’s “definition of incitement,” Papandrea said.
According to The Supreme Court’s 1969 decision in the landmark free speech case of Bradenburg v. Ohio, the government can’t prohibit those who advocate for violent or unlawful action “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
That means without a plan to organize riots and without any recent gatherings to link his comments to, Sen. Graham cannot be charged with incitement.
According to North Carolina law, a gathering must meet the following standards to be considered a riot:
Be an assembly of three or more people
Disorderly and violent conduct takes place
There is an imminent threat of disorderly and violent conduct
The event results in injury or damage to property
There is a clear and present danger of injury or damage to property
“This same statute also makes clear that someone cannot be charged with incitement to riot unless a riot occurs or there is a clear and present danger of a riot,” Papandrea said. “This is not to say that it was wise for a prominent U.S. Senator to suggest that there would be ‘riots’ if Trump is indicted,” she added.
White House Press Secretary Karine Jean-Pierre told reporters on Monday that Graham’s comment falls into the category of what President Biden referred to as “semi-fascism” last week.
“We have seen MAGA Republicans attack our democracy,” she said. “We have seen MAGA Republicans take away our rights. Make threats of violence, including this weekend, and that is what the president was referring to when you all asked me last week about the ‘semi-fascism’ comment,” Jean-Pierre said.
In remarks delivered in Charleston on Monday, Sen. Graham further elaborated on the comments he made on Fox News, claiming that he was not calling for riots, but rather predicting that frustration from the public could turn into violence.
“America cannot live with this kind of double standard. I thought what (Hillary Clinton) did was bad, but she got a pass at the end of the day.” Sen. Graham said. “I reject violence. I’m not calling for violence. Violence is not the answer, but I’m just telling you.”
This story was originally published August 30, 2022 at 12:55 PM.
