This is clearly a special case of the more general problem of stochastic terrorism. Brandenburg's standard of "imminent lawless action" is difficult to meet because of the intent requirement. But in the context of a gag order, where the defendant is already subject to sanctions for various behaviors before the court, that definition could be altered: sanctions in a situation where the defendant's speech DOES generate lawless actions. There are two tiers for this: the speaker (S), and the person who acts lawlessly based on the speech (LA==lawless actor). Clearly LA's can violate the law on threats, as the woman from Texas shows. Let's call the person thus threatened the "PV" (potential victim).
So the order would be set up with a clear schedule of sanctions (mostly monetary) if the speech (defined below) DOES result in a lawless action.
This would take away the "intent" or at least make the mens rea "recklessness." Lawless actions would include threats by outsiders against PVs in any way connected with the case or actual changes of testimony by witnesses as measured by what they have already told prosecutors (including sudden "I can't remembers" which may not arise to the level of perjury by the testifying witness but which can be shown by evidence that the inability to remember is pretty recent.)
Under this scenario, the act of the woman in Texas would indeed be a violation had it happened after the order was in place.
There would be a MUCH stronger set of sanctions, including incarceration, if the LA actually DID carry through on the threat--an actual attack on at PV as opposed to the simple threat of an attack.
As to what "speech" is covered: I'd say that it would be anything that an objective observer would call "inflammatory." Basically, name calling above and beyond mere criticism. Thus "Mike Pence betrayed the country by not acting to stop the election count" would be criticism, but "Mike Pence is a spineless traitor whose treason damaged the American People" would be inflammatory. Again, "political speech" would not be prevented if BOTH non-inflammatory nor resulting in any threat by a LA.
The sanctions would be set up by increasing the amount for each violation of the order (remember, violation is the occurrence of a result) and would in its higher ranges be tailored to the defendant's actual net worth. (This would create a real problem for trump, and would include the value of his "brand" as of the date the gag order was imposed. Would he admit to exaggerating his worth to keep the sanction amounts down? I doubt it).
This approach is in line with the general idea of the rule of law, that actions have consequences, something we've already seen in the slander laws. for speech acts. Trump could CHOOSE not to use inflammatory speech and avoid the sanctions entirely, or he could take a chance that his inflammatory speech would not actually result in his followers becoming LAs. For this purpose, the mental health of the LA would not be an issue. One has to assume that those who make actual criminal threats based on the speech of S have at least one screw loose.
There might have to be adjustments depending how many tier one threats occur after a particular Trutheet. But once at least ONE threat is made, the counter resets and the next inflammatory statement after it would result in tier two sanctions if it provoked another threat.
Funds from the sanctions would go to some cause like increasing the number of public defenders and the sanctions would a) not be dischargeable in bankruptcy and b) not be reversed even if the defendant were found either innocent or subject to a hung jury.
On the broader issue, beyond the court situation, stochastic terrorism could be dealt with in a similar way by giving a private right of action against S to anyone who is actually damaged by a LA who can be shown to be was motivated by the speech of S--burden on plaintiff to show this. Again, the inflammatory language standard would in place and damages would depend on the amount of harm--from worry to hiring a security guard to having to go into hiding. Further, the "numerator" of the number of people LIKELY to threaten based on S's utterances would need to be taken into account. The level of S would have to involve "fans" at the full state or national level, probably
I don't use "numerator" and "denominator" the way you do here. The probability that any of Trump's statements will incite a particular person to a lawless act is very low; but the number of people that that probability will be applied to is very large (the phrase for this is "stochastic terrorism"). Buying a lottery ticket is very low probability, but a lot of lottery tickets are sold; someone will eventually win.
This is clearly a special case of the more general problem of stochastic terrorism. Brandenburg's standard of "imminent lawless action" is difficult to meet because of the intent requirement. But in the context of a gag order, where the defendant is already subject to sanctions for various behaviors before the court, that definition could be altered: sanctions in a situation where the defendant's speech DOES generate lawless actions. There are two tiers for this: the speaker (S), and the person who acts lawlessly based on the speech (LA==lawless actor). Clearly LA's can violate the law on threats, as the woman from Texas shows. Let's call the person thus threatened the "PV" (potential victim).
So the order would be set up with a clear schedule of sanctions (mostly monetary) if the speech (defined below) DOES result in a lawless action.
This would take away the "intent" or at least make the mens rea "recklessness." Lawless actions would include threats by outsiders against PVs in any way connected with the case or actual changes of testimony by witnesses as measured by what they have already told prosecutors (including sudden "I can't remembers" which may not arise to the level of perjury by the testifying witness but which can be shown by evidence that the inability to remember is pretty recent.)
Under this scenario, the act of the woman in Texas would indeed be a violation had it happened after the order was in place.
There would be a MUCH stronger set of sanctions, including incarceration, if the LA actually DID carry through on the threat--an actual attack on at PV as opposed to the simple threat of an attack.
As to what "speech" is covered: I'd say that it would be anything that an objective observer would call "inflammatory." Basically, name calling above and beyond mere criticism. Thus "Mike Pence betrayed the country by not acting to stop the election count" would be criticism, but "Mike Pence is a spineless traitor whose treason damaged the American People" would be inflammatory. Again, "political speech" would not be prevented if BOTH non-inflammatory nor resulting in any threat by a LA.
The sanctions would be set up by increasing the amount for each violation of the order (remember, violation is the occurrence of a result) and would in its higher ranges be tailored to the defendant's actual net worth. (This would create a real problem for trump, and would include the value of his "brand" as of the date the gag order was imposed. Would he admit to exaggerating his worth to keep the sanction amounts down? I doubt it).
This approach is in line with the general idea of the rule of law, that actions have consequences, something we've already seen in the slander laws. for speech acts. Trump could CHOOSE not to use inflammatory speech and avoid the sanctions entirely, or he could take a chance that his inflammatory speech would not actually result in his followers becoming LAs. For this purpose, the mental health of the LA would not be an issue. One has to assume that those who make actual criminal threats based on the speech of S have at least one screw loose.
There might have to be adjustments depending how many tier one threats occur after a particular Trutheet. But once at least ONE threat is made, the counter resets and the next inflammatory statement after it would result in tier two sanctions if it provoked another threat.
Funds from the sanctions would go to some cause like increasing the number of public defenders and the sanctions would a) not be dischargeable in bankruptcy and b) not be reversed even if the defendant were found either innocent or subject to a hung jury.
On the broader issue, beyond the court situation, stochastic terrorism could be dealt with in a similar way by giving a private right of action against S to anyone who is actually damaged by a LA who can be shown to be was motivated by the speech of S--burden on plaintiff to show this. Again, the inflammatory language standard would in place and damages would depend on the amount of harm--from worry to hiring a security guard to having to go into hiding. Further, the "numerator" of the number of people LIKELY to threaten based on S's utterances would need to be taken into account. The level of S would have to involve "fans" at the full state or national level, probably
I don't use "numerator" and "denominator" the way you do here. The probability that any of Trump's statements will incite a particular person to a lawless act is very low; but the number of people that that probability will be applied to is very large (the phrase for this is "stochastic terrorism"). Buying a lottery ticket is very low probability, but a lot of lottery tickets are sold; someone will eventually win.