"Trump’s speech is almost certainly protected by the First Amendment.
Lee Rowland, a senior staff attorney for the A.C.L.U., cited several
Supreme Court cases—particularly Brandenburg v. Ohio, which set the
precedent that an individual, whether a raging Klansman or a
civil-rights advocate, can be charged with incitement “only when speech
is intended and likely to cause imminent and serious lawlessness.”
Trump, she wrote, did not meet that standard thanks to the Brandenburg
Test, “designed to ensure breathing room for the messy, chaotic, ad
hominem, passionate, and even racist speech that may be part of the
American political conversation.”