“Fighting solves everything. We need more violence from the Trump people. Trump supporters: choke a motherfucker. Choke a bitch. Choke a tranny. Get your fingers around the windpipe.”
Those are the words of Proud Boys founder Gavin McInnes.
“If some guy with a slightly punk demeanor comes up to you and says ‘Hey are you Sal? Are you pro-Trump?’ Choke him. Trust your instincts, don’t listen to what he has to say, choke him.”
Please share this video. People need to understand how dangerous Gavin McInnes and his gang the Proud Boys are.
— Vic Berger IV (@VicBergerIV) October 17, 2018
McInnes is hardly alone in inciting Trump supporters to violent action. In fact, Trump himself has been known to do it. Trump even offered to pay legal fees resulting from violence committed at his request. The NRA, also, tends toward extremely violent rhetoric, though with slightly less brazen display as the Proud Boys and Trump.
18 U.S.C. 373 states that incitement to commit a crime, particularly a violent crime, is in itself a criminal act. McInnes appears to be aware of this statute, as he’s on video splitting hairs on the subject on his Compound Media show.
“If I do a video where I say ‘how about we start throwing bricks’, is that legal? You can’t call for violence on a specific person … Can you call for violence generally?” he asked. “‘Cause I am.”
The answer to his question is not really. In the 1969 case Brandenburg v. Ohio, the Supreme Court established a test of where free speech rights end when it concerns incitement to violence. In Brandenburg, an Ohio Ku Klux Klan leader made a speech implying that there might need to be violent action against people of color.
The Court established a two prong test – was the statement a call to imminent illegal action and was it likely to produce such action. While Brandenburg, the Klansman, wasn’t likely to cause real violence with his rhetoric, McInnes is.
Take McInnes’s quotes about choking. He is calling clearly for a measurable and specific crime to occur. He is making a statement to his followers that they ought to take an unlawful action and commit violence against “a motherfucker”, “a bitch” or “a tranny”.
This can reasonably be seen as an incitement that will actually translate into unlawful action. How? Because McInnes’s rhetoric has been specifically linked to threats of violence before. Just last weekend, Proud Boys were involved in street violence nationwide. The group then took to social media in a justification-slash-victory-lap campaign.
McInnes is speaking to people known for a tendency of violent action and is telling them to choke people. He is both advocating for imminent illegal activity and doing so with a reasonable certainty that that violence will actually transpire.
While his “throwing bricks” remark is not criminal, his choking remark is. He is intending to incite a specific crime (the assault of people the Proud Boys dislike, specifically by choking) in the indefinite future. This is technically considered “solicitation” to commit a crime.
That doesn’t mean McInnes will be arrested for that charge. Lest we forget that when a Presidential candidate, Trump committed both solicitation and incitement to criminal activity, and was arrested for neither. McInnes’s political nature might shield him from this particular crime.
But only for so long. After all, he’s not just there to tell people to attack.
“‘We will kill you’,” said McInnes. “That’s the Proud Boys in a nutshell.”
Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.