Events Surrounding the U.S. Capitol Insurrection Raise Significant Media Law Issues and Questions

Compiled by the Silha Center for the Study of Media Ethics and Law

A Message from the Silha Center Director

The Silha Center for the Study of Media Ethics and Law has produced this special report and analysis of media law issues arising from the extraordinary assault on the U.S. Capitol in Washington, D.C. on Jan. 6, 2021. We recount attacks on and detention of working journalists, discuss the First Amendment implications of social media platforms’ decisions to ban President Donald Trump, and consider whether statements by President Trump calling on his supporters to march to the Capitol violate federal laws against incitement to violence, rioting, or advocating overthrow of the government — extremely serious offenses that must meet a high bar prior to prosecution.

We are posting this initial and timely analysis now for the benefit of our readers. The Fall 2020 issue of the Silha Bulletin, which we had largely completed prior to January 6, is being revamped and will include this coverage, along with the many other stories we had already prepared. It will be published later in January 2021. Future issues of the Bulletin will continue covering these and related events.

I would like to thank Postdoctoral Associate and former Bulletin editor Scott Memmel, as well as Program Assistant Elaine Hargrove, for their quick work in preparing this special report.

Jane E. Kirtley, Director
Silha Center for the Study of Media Ethics and Law
Jan. 11, 2021

On Jan. 6, 2021, President Donald Trump spoke at the “March to Save America” rally in Washington, D.C. The rally was held to protest Congress’ imminent certification of the 2020 Electoral College results, in which President-elect Joe Biden and Vice President-elect Kamala Harris were elected as the next president and vice president of the United States. In his speech, President Trump urged his supporters to march to the U.S. Capitol building (Capitol) to protest the Electoral College vote count.

Later the same day, protests around the Capitol erupted into chaos as hundreds of President Trump’s supporters forced their way into the Capitol. The insurrectionists, as they were referred to by several media outlets around the United States, caused significant property damage and forced members of Congress — who were set to confirm the election results despite opposition from some Republican representatives and senators — to retreat to safety elsewhere in the Capitol. The Washington Post described in a Jan. 8, 2021 article how “[m]embers of the mob scaled walls, smashed doors and windows, vandalized works of art, and stole laptops, correspondence and personal items from offices, forcing the emergency evacuation of lawmakers and staff.”

Additionally, at least five individuals died as a result of the Capitol attack, including U.S. Capitol Police (USCP) officer Brian D. Sicknick. CNN reported on Jan. 7, 2021 that Sicknick “was injured while physically engaging with the rioters and collapsed after returning to his division office.” According to a USCP statement, Sicknick “was taken to a local hospital where he succumbed to his injuries.” The statement added, “The entire USCP Department expresses its deepest sympathies to Officer Sicknick’s family and friends on their loss, and mourns the loss of a friend and colleague.” CNN also noted that several additional USCP officers were injured during the Capitol attack.

Air Force veteran Ashli Babbitt was fatally shot by a “sworn USCP employee” as rioters sought to enter the U.S. House of Representatives Chamber where members of Congress were sheltering in place, according to a January 7 USCP press release. The press release read, “As protesters were forcing their way toward the House Chamber where Members of Congress were sheltering in place, a sworn USCP employee discharged their service weapon, striking an adult female. Medical assistance was rendered immediately, and the female was transported to the hospital where she later succumbed to her injuries.” The full press release is available online.

Three additional individuals at the protests died of “medical emergencies,” as reported by CNN. Metropolitan Police Department (MPD) Chief Robert Contee told CNN that “[o]ne adult female and two adult males appear to have suffered from separate medical emergencies, which resulted in their deaths.” He added, “Any loss of life in the District is tragic and our thoughts are with anyone impacted by their loss.”

Several important First Amendment and media law issues and questions came to the forefront during the course of the Capitol attack. First, President Trump’s speech at the January 6 “March to Save America” rally included multiple instances of anti-press rhetoric, continuing a trend from throughout his presidency. First Amendment experts also debated whether the speech constituted “incitement” of violence, a category of speech that would not receive First Amendment protection under U.S. Supreme Court precedent.

Second, during the attack on the Capitol and surrounding protests, journalists faced arrests by law enforcement, as well as violence, threats, and equipment damage by President Trump’s supporters. Press advocacy organizations denounced the attacks on the news media, citing President Trump’s anti-press rhetoric as a contributing factor.

Also on January 6, Twitter and Facebook, among other social media platforms, temporarily suspended President Trump’s accounts, citing posts that violated their rules and guidelines against inciting or promoting violence and/or spreading misinformation. Within two days, Twitter had permanently banned President Trump from the platform, while Facebook extended the suspension of his account through at least the end of his term as president. The moves promoted praise from some observers, though several noted that the actions came too late. Other observers raised concerns about the precedent set by social media companies in suspending or banning President Trump from their platforms.

President Trump Continues Anti-Press Rhetoric; Some View His Speech as Incitement

On Jan. 6, 2021, President Donald Trump spoke at the “March to Save America” rally at the Ellipse in President’s Park located in Washington, D.C. The rally, which was based on President Trump’s statement, “We will never concede [the 2020 Presidential Election]” included several instances of anti-press rhetoric, continuing a trend throughout President Trump’s tenure in the White House.

As a candidate and as president, Trump repeatedly verbally attacked the news media, including frequently referring to journalists and news outlets as the “fake news media” and “enemies of the people.” Furthermore, during the COVID-19 pandemic, President Trump’s daily press briefings included “tense back-and-forth[s]” between the president and reporters, as characterized by The Washington Post on May 12. President Trump also tweeted on May 15, 2020, “FAKE NEWS IS NOT ESSENTIAL,” quoting a Commack, N.Y. protester filmed by News 12 Long Island reporter Kevin Vesey during a demonstration criticizing the exemption for journalists from New York’s “stay-at-home” order. (For more information on President Trump’s anti-press rhetoric amidst the COVID-19 pandemic, see “Special Report: COVID-19 Pandemic Raises Media Law and Ethics Issues, Challenges, and Opportunities” in the Winter/Spring 2020 issue of the Silha Bulletin.)

Observers have argued that President Trump’s anti-press rhetoric has led to violence against journalists. For example, on Feb. 11, 2019, BBC cameraman Ron Skeans was attacked at a rally for President Trump in El Paso, Texas. The BBC reported the next day that Skeans was unharmed, despite the “incredibly violent attack,” which BBC Washington producer Eleanor Montague suggested was prompted by the president’s references to “fake news” and how the media misrepresented him in his remarks prior to the assault. (For more information on the attack of Skeans, see BBC Cameraman Attacked at Trump Rally in El Paso in “Journalists in the U.S. and Abroad Continue to Face Violence and Imprisonment; U.S. Court Holds Syria Liable for Role in Journalist’s 2012 Death” in the Winter/Spring 2019 issue of the Silha Bulletin.)

(For more information on President Trump’s anti-press rhetoric and actions more generally, see “Special Report: COVID-19 Pandemic Raises Media Law and Ethics Issues, Challenges, and Opportunities” in the Winter/Spring 2020 issue of the Silha Bulletin, “Federal Judge Orders White House to Reinstate Reporter’s Press Credential” in the Fall 2019 issue, “White House Revokes and Suspends Hard Press Passes Under New Rules” in the Summer 2019 issue, “President Trump Continues Anti-Press Rhetoric and Actions” and “Journalists in the United States and Abroad Face Threats of Violence and Incarceration” in the Fall 2018 issue, Five Newspaper Staff Members Killed, Two Injured in Shooting at Local Maryland Newsroom in “Journalists Face Physical Violence, Other Dangers in the United States and Abroad,” and Federal Prosecutors Seize Phone and Email Records of New York Times Reporter in Leak Investigation in “Trump Administration Targets Journalist, Leaker of Government Information, and Former Government Employees Who Took Classified Documents,” in the Summer 2018 issue, “Reporters and Leakers of Classified Documents Targeted by President Trump and the DOJ” in the Summer 2017 issue, “Media Face Several Challenges During President Trump’s First Months in Office” in the Winter/Spring 2017 issue, and “2016 Presidential Candidates Present Challenges for Free Expression” in the Summer 2016 issue.)

In multiple instances throughout his Jan. 6, 2021 speech, President Trump referred to the press as the “fake news media.” He began his remarks by suggesting that the media would “not show the magnitude of th[e] crowd” attending the rally and added, “The media is the biggest problem we have as far as I’m concerned, single biggest problem.”

President Trump later argued, as he had falsely repeated since the 2020 election, that the “election victory stolen by emboldened radical left Democrats, which is what they’re doing and stolen by the fake news media.” He added, “That’s what they’ve done and what they’re doing. We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved.”

Sixteen minutes into his speech, President Trump attacked the news media once more. “Our media is not free. It’s not fair,” he said. “It suppresses thought. It suppresses speech, and it’s become the enemy of the people. It’s become the enemy of the people. It’s the biggest problem we have in this country. No third world countries would even attempt to do what we caught them doing and you’ll hear about that in just a few minutes.” Later, President Trump added, “No, we have a corrupt media. They’ve gone silent. They’ve gone dead.”

The full transcript of President Trump’s speech is available online.

In his speech, President Trump also included calls to action geared towards his supporters. At one point, he said, “We’re going to have to fight much harder and Mike Pence is going to have to come through for us. If he doesn’t, that will be a sad day for our country because you’re sworn to uphold our constitution. Now it is up to Congress to confront this egregious assault on our democracy. After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”

At the end of his speech, President Trump told those at the rally, “[W]e’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and give” before trailing off and stating, “The Democrats are hopeless.” President Trump repeated, “So let’s walk down Pennsylvania Avenue. I want to thank you all.”

Following President Trump’s speech and the ensuing protests and storming of the U.S. Capitol building (Capitol), some news outlets contended that President Trump had incited the violence. For example, The New York Times Editorial Board argued in a January 6 editorial, titled “Trump Is to Blame for Capitol Attack,” that President Trump had “incited his followers to violence.” The piece added, “President Trump and his Republican enablers in Congress incited a violent attack Wednesday against the government they lead and the nation they profess to love. This cannot be allowed to stand. Mr. Trump’s seditious rhetoric prompted a mob of thousands of people to storm the U.S. Capitol building[.]” The full editorial is available online.

Similarly, The Washington Post Editorial Board published an opinion piece titled, “Trump caused the assault on the Capitol. He must be removed.” In the piece, the Post wrote, “Responsibility for this act of sedition lies squarely with the president, who has shown that his continued tenure in office poses a grave threat to U.S. democracy.. . . The president is unfit to remain in office for the next 14 days.. . . Every  second he retains the vast powers of the presidency is a threat to public order and national security.” The full piece is available online.

On January 7, The Guardian posted “a timeline of Trump's inflammatory rhetoric before the Capitol riot,” calling the rhetoric “incitement.” The full timeline is available online.

First Amendment and media law experts debated whether President Trump’s comments led to the ensuing violence and storming of the Capitol, thereby constituting “incitement,” “incitement to riot,” and/or “incitement to insurrection.”

On Jan. 8, 2021, David L. Hudson, Jr., an assistant professor of law at Belmont University, wrote a piece for First Amendment Watch, an online news and educational resource based at New York University (NYU), in which he grappled with the question: “Does the First Amendment Protect Trump on Incitement to Riot?” Hudson argued that although there was “no doubt that Trump’s speech was inappropriate, imprudent, rash, offensive, and even repugnant,” it would be “more difficult to determine whether Trump’s comments constitute incitement to imminent lawless action.”

He cited Brandenburg v. Ohio, 395 U.S. 444 (1969), in which the U.S. Supreme Court established the “incitement test,” which includes two steps for speech to fall under this category of unprotected speech. First, the speech needs to be “directed to inciting or producing imminent lawless action.” Second, the speech must be “likely to incite or produce such action.” Hudson also cited Hess v. Indiana, 414 U.S. 105 (1973), in which the Court clarified that for speech to constitute incitement, it must advocate for illegal action immediately to take place.

Hudson also cited Nwanguma v. Trump, 903 F.3d 604 (6th Cir. 2018), in which the U.S. Court of Appeals for the Sixth Circuit held that then-Republican presidential candidate Trump did not “incite a riot” when he called for security to remove protestors at a March 2016 rally, which led to an altercation between the protesters and some of Trump’s supporters.” The Sixth Circuit held that the United States has “chosen to protect unrefined, disagreeable, and even hurtful speech to ensure that we do not stifle public debate.”

The court added that the case law derived from the Brandenburg test “makes clear . . . that, even if plaintiffs’ allegations could be deemed to make out a plausible claim for incitement to riot under Kentucky law, the First Amendment would not permit prosecution of the claim.. . . [The] speaker’s intent to encourage violence . . . and the tendency of his statement to result in violence . . . are not enough to forfeit First Amendment protection unless the words used specifically advocated the use of violence, whether explicitly or implicitly.” (For more information on Nwanguma v. Trump, see Sixth Circuit Holds that Presidential Candidate Trump Did Not Incite a Riot at 2016 Rally in “President Trump Prevails in Two Federal Courts’ First Amendment Rulings, Faces New First Amendment Lawsuit” in the Fall 2018 issue of the Silha Bulletin.)

Hudson cited several First Amendment experts, including some who argued that President Trump’s Jan. 6, 2021 remarks constituted incitement and other experts who argued that they did not.

Kevin Francis O’Neill, a law professor at Cleveland Marshall College of Law, contended that “Trump’s remarks were an incitement within the unprotected boundaries of Brandenburg — because he dispatched his followers directly and immediately to the Capitol, and he did so for a specific unlawful purpose: to interrupt the counting of electoral votes” (emphasis in original).

Conversely, Clay Calvert, a media law professor and director of the Marion B. Brechner First Amendment Project at the University of Florida, contended that it would be difficult to establish incitement under the Brandenburg-Hess framework. He told Hudson, “Focusing only on Trump’s rally speech, proving the intent element — the requirement that the words Trump used were directed to cause imminent violence — would be the toughest hurdle.” Calvert noted that Trump “never explicitly called for violence during his rally, never used a command like ‘go down there and attack them.’”

Calvert added, “It would be a very tough case—there’s a difference between heated political rhetoric and actually directing one’s followers to commit violence.. . . Trump sent them off down the street, for sure, with his words, but did he send them off to commit violence? That’s the trickier part to prove.”

In a Jan. 8, 2021 piece for The Washington Post, former federal prosecutor Randall Eliason contended that “[w]e want to avoid the risk of criminalizing political differences. But that understanding has nothing to do with what happened at the Capitol. It’s impossible to characterize Trump’s incitement of the riot as having anything to do with the legitimate exercise of his executive power — just the opposite.”

Eliason contended that President Trump may have violated several federal laws, including 18 U.S.C. § 2383, which governs “Rebellion and insurrection.” The statute provides that “[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

Also potentially relevant is 18 U.S.C. § 373, which provides that “[w]hoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States . . . shall be imprisoned not more than one-half the maximum term of imprisonment or . . . fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both[.]” The provision states that “if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.”

18 U.S.C. § 2101 specifically governs “Riots” and provides, in part, that “[w]hoever travels in interstate or foreign commerce . . with intent to (1) to incite a riot; or (2) to organize, promote, encourage, participate in, or carry on a riot; or (3) to commit any act of violence in furtherance of a riot; or (4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot . . . Shall be fined under this title, or imprisoned not more than five years, or both. The full text of the statute is available online.

Finally, 18 U.S.C. § 2385, titled “Advocating overthrow of Government,” provides, in part, that “[w]hoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government . . . [s]hall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.”

The statute includes the same penalties for an individual who has “intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes,” as well as who “organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof.” The full text of the statute is available online.

As the Bulletin went to press, President Trump had not been charged with incitement, incitement to insurrection, or similar claims. Additionally, Congress had not formally impeached, censured, and/or convicted President Trump.

Journalists Face Arrests, Violence During Capitol Chaos

During the course of the Jan. 6, 2021 protests and storming of the U.S. Capitol building (Capitol), two Washington Post photojournalists, as well as a freelance journalist, were detained by law enforcement. Additionally, members of the press were subjected to violence, threats, and equipment damage by President Donald Trump’s supporters in Washington, D.C. and around the United States, prompting some observers to argue that the violence was a result of President Donald Trump’s anti-press rhetoric.

On January 8, the U.S. Press Freedom Tracker (Tracker), a database of press freedom violations in the United States and around the world managed by the Freedom of the Press Foundation, tweeted that it was “currently investigating 5 arrests/detainments; 9 assaults, 2 with equipment damage; Equipment damage of multiple outlets’ gear, [including CNN, MSNBC, The Washington Post, the Associated Press (AP), and other news outlets]; and multiple threats and harassment of journalists across the [United States].” The full tweet thread is available online.

For example, the U.S. Press Freedom Tracker — which has an advisory committee chaired by the Committee to Protect Journalists (CPJ) and also includes the Reporters Committee for Freedom of the Press (RCFP), among other organizations — reported on Jan. 6, 2021 that Washington Post video journalist Zoeann Murphy “was detained alongside a colleague while documenting the ongoing riots” in Washington, D.C. In a live video with the Post, Murphy described how she and fellow video photojournalist Whitney Leaming were held by Metropolitan Police Department (MPD) officers using a technique known as “kettling,” a term that refers to police “surround[ing] a group from all sides to prevent exit.”

In the video, Murphy can be heard saying, “I have a credential: a Washington Post credential press badge that I wear. And then I actually have my Washington Post fleece on today as well.” While still live with the Post, Murphy said, “They’ve just told us that they’re letting the press go and have told us that we can go.” The full video of the incident, which was filmed by Leaming, is available online.

In a statement to The Wrap, the Post stated, “Our journalists were just doing their jobs and should never have been arrested in the first place. However, we’re pleased that police quickly released them.”

In a short emailed statement to the U.S. Press Freedom Tracker, an MPD spokesperson declined to comment on the case and wrote, “When we detain any reporters, it’s to maintain order and safety.”

According to the U.S. Press Freedom Tracker, independent journalist Talia Jane was also briefly detained by law enforcement amidst the ongoing riots. In an interview with the database, Jane said, “MPD made three warnings for people to leave within the space of a minute or two, then started moving people back.” She continued, “Eventually they formed a big circle, told me because I was press I could leave any time but didn’t answer questions about non-press people still there.” Law enforcement summarily released Jane after several officers examined her press credentials.

On Jan. 9, 2021, The Washington Post reported that there were “several instances of violence [by protesters and rioters] against journalists covering the deadly takeover of the Capitol.” One incident took place when a crowd of President Trump’s supporters pushed towards a police barricade. As they did so, AP photographer John Minchillo was documenting what was taking place.

However, according to the Post, “[s]everal men grabbed Minchillo by his backpack, pulling him down a flight of stairs. Others grasped the lanyard that identified him as media, dragging him through” a large crowd of President Trump’s supporters. Fellow AP photographer Julio Cortez filmed the attack and later posted it on Instagram and other social media platforms. In the video footage, someone could be heard yelling, “We’ll f---ing kill you” as a man pushed Minchillo over a ledge. Another man could be heard calling Minchillo “antifa,” a putative left- wing extremist group described by CBS News on Oct. 16, 2021 as “short for “anti-fascist” and referring to a “loose affiliation of local activists scattered across the United States and a few other countries.” After being pushed over the wall, another individual is heard questioning whether Minchillo was “antifa.” Two protesters then helped Minchillo get out of the crowd.

In a Twitter Post, Minchillo wrote that he was “banged up” but “kept at it the rest of the day.” The full video of the incident is available online.

In a caption accompanying the video on Instagram, Cortez wrote, “Thankfully, he wasn’t injured.. . . [Minchillo] was labeled as an [anti-protester], even though he kept flashing his press credentials, and one person can be heard threatening to kill him. This is an unedited, real life situation of a member of the press keeping his cool even though he was being attacked. A true professional and a great teammate, I’m glad we were able to get away.”

Also on January 6, several “protestors charg[ed] the media,” according to Bloomberg reporter William Turton in a January 6 tweet. He posted a video of the incident, which depicted several men breaking journalists’ equipment, including cameras, lights, and more. Several individuals can be heard shouting, “Get out of here!” while advancing towards a group of journalists. Others yelled “CNN sucks.” The full video is available online.

The Washington Post reported that several journalists had said they felt “shaken” following the acts of violence. For example, on January 6, The Independent journalist Richard Hall retweeted a photo of his destroyed camera equipment posted by BuzzFeed News Capitol Hill reporter Paul McLeod and wrote, “This is why I stopped doing interviews after a certain point. Today was the first day I’ve felt uncomfortable identifying myself as a journalist in America.”

McLeod also later shared a photo depicting a noose fashioned by rioters using a camera cord hanging from a tree. The photo is available online.

Journalists also faced violence and sought shelter inside the Capitol as insurrectionists burst their way in, according to The New York Times on January 6. For example, NBC News producer Haley Talbot called into a live MSNBC broadcast and said, “We were told to get under our chairs, we were all sheltering.” She added that she and others grabbed gas masks during the “dire situation,” as reported by the Times, which noted that someone had carved “MURDER THE MEDIA” into a Capitol door.

On January 7, Erin Schaff, a staff photographer at The New York Times, detailed a similar run-in with rioters. She wrote, “Grabbing my press pass, they saw that my ID said The New York Times and became really angry.” She continued, “They threw me to the floor, trying to take my cameras. I started screaming for help as loudly as I could. No one came. People just watched. At this point, I thought I could be killed and no one would stop them. They ripped one of my cameras away from me, broke a lens on the other and ran away.”

Schaff was later found by police, but they questioned her account. She wrote, “I told them [police officers] that I was a photojournalist and that my pass had been stolen, but they didn’t believe me. They drew their guns, pointed them and yelled at me to get down on my hands and knees. As I lay on the ground, two other photojournalists came into the hall and started shouting ‘She’s a journalist!’” Schaff’s full account is available online.

The Post also noted that other journalists had stopped identifying themselves amidst the chaos. The New York Times reported on the same day that MSNBC anchor Yasmin Vossoughian, who was accompanied by two security officers, said on air that she and several of her colleagues intentionally avoided clothing with the station’s branding, expecting hostility because “the president is continuously talking about the fake news media.”

The Times also noted that the “threats and attacks were not limited to Washington” on January 6. The Times provided the example of Sara Gentzler, a reporter with The Olympian in Washington State, who tweeted she and a colleague were approached by an armed man who told them that the news media were not welcome at the rally of President Trump supporters that was taking place. Similarly, the Times reported that “Rick Egan, a photographer who has worked for The Salt Lake Tribune for more than 36 years, was documenting a mostly peaceful gathering outside Utah’s State Capitol when he was shoved, verbally attacked and pepper-sprayed in the eyes by protesters unhappy with the results of the presidential election.”

Following the arrests and violence against journalists, Reporters Committee for Freedom of the Press (RCFP) executive director Bruce Brown released a statement in which he praised “professional and brave journalists and photographers who risked their safety to document the events as they unfolded.” Brown continued, “Like members of Congress, their staffs and others who work in the Capitol complex, these reporters work daily in those buildings, and an assault on the Capitol is an assault on them, too.. . . We are deeply disturbed at the attacks, threats and rhetoric that we saw targeting reporters yesterday. Rioters at the Capitol called for violence against members of the news media, destroyed news equipment and verbally harassed journalists as the ‘enemy of the people’ — actions that not only pose a dire threat to those working tirelessly to bring information to our communities, but also to the press freedom that is a bedrock value of our nation.”

Brown cited President Trump’s anti-press rhetoric as directly leading to the violence. He wrote, “These actions are the direct result of years of this language stoking fear and hate for one of our most vital institutions. Our free press is crucial to democracy, and indeed, one of the pillars that will help keep it standing beyond this moment.” Brown concluded by stating, “In the days, weeks, months and years ahead, we are committed to vigorously defending the press and the public’s First Amendment rights to freely report and receive the news, and to ensuring journalists have the legal support to fulfill their constitutional responsibility.” The full statement is available online.

The Committee to Protect Journalists (CPJ) released a statement on January 8 in which it called on “U.S. authorities [to] thoroughly investigate the many attacks on journalists during the violent takeover of the U.S. Capitol this week, and hold the perpetrators to account.” In its statement, CPJ Program Director Carlos Martinez de la Serna was quoted as saying, “The violence displayed toward the media during the assault on the United States Capitol has no place in a democracy. Individuals who threatened and assaulted journalists must be held accountable for their actions.”

Martinez de la Serna also cited President Trump’s anti-press rhetoric, stating, “For the past four years, the Trump administration has lobbed attacks against individual and institutional news media. As the world has now witnessed, this rhetoric is not just a political diversion — it can embolden mobs to attack reporters who are simply trying to do their job of keeping the public informed.”

CPJ noted that legislators were ‘planning a “minute-by-minute’ investigation into the failure of law enforcement to curb the assault on the Capitol,” as reported by BuzzFeed News on Jan. 7, 2021. CPJ’s full statement is available online.

As the Bulletin went to press, charges against protesters and rioters who targeted journalists and their equipment had not been announced.

In light of the events surrounding the Capitol attack, The Washington Post argued on January 8 that the “brief takeover of the U.S. Capitol by pro-Trump extremists . . . was . . . a profound failure of policing.” The Post continued, “Despite the presence of both Vice President Pence and House Speaker Nancy Pelosi — second and third in the presidential line of succession — and despite the hundreds of members of Congress gathered in joint session, angry Trump supporters were able to breach perimeter after perimeter, at times simply walking past [U.S. Capitol Police (USCP)] officers who made no apparent effort to stop them.”

The Post added that “[i]t was the largest assault on the Capitol since the British attack during the War of 1812.” The Post contended that the failure by the USCP was “a direct consequence of the way the police agency that protects the legislative branch is organized, with far too little accountability or diversity, jumbled oversight, and too many opportunities for politics to creep into its mission.” The full report is available online.

Social Media Companies Suspend President Trump’s Accounts

On Jan. 6, 2021, Facebook, Twitter, and other social media platforms temporarily suspended President Donald Trump’s accounts, citing posts that violated their rules and guidelines prohibiting inciting violence and spreading misinformation. Within the next two days, Facebook announced that it was suspending President Trump’s account through at least the Presidential Inauguration on January 20, while Twitter announced a permanent ban of President Trump’s account @realdonaldtrump. The moves prompted praise from some observers, who argued that such actions should have been taken sooner. Other observers raised concerns about the precedent set by Facebook, Twitter, and other social media platforms in suspending or banning President Trump.

On January 6, several media outlets reported that Facebook and Twitter had both temporarily locked President Trump’s accounts. The moves came after President Trump posted a video telling the rioters at the U.S. Capitol building (Capitol) to “Go home,” but also calling them “special” and added, “We love you.” In a Jan. 7, 2021 interview with KSTP-TV, the Twin Cities’ ABC affiliate, Silha Center Director and Silha Professor of Media Ethics and Law Jane Kirtley asserted that “It’s very clear to [President Trump’s] followers that he is with them and supports them, and that his comments about ‘go home,’ ‘be peaceful,’ and so forth are seen as being conveyed with sort of a wink and a nod.” KSTP’s full report is available online.

Twitter removed three of President Trump’s tweets, including the tweet posting his video, and suspended his account for 12 hours. Twitter also warned that further violations would result in a “permanent suspension,” according to CNN. Twitter’s “Twitter Safety” account also tweeted that if President Trump removed the three tweets, his account would be unlocked. NBC News noted that before taking it down, Twitter had added a tag line to President Trump’s video reading, “This claim of election fraud is disputed, and this Tweet can't be replied to, Retweeted, or liked due to a risk of violence.” Twitter had also blocked retweets and replies to the video.

Facebook and YouTube also removed the video from President Trump’s accounts, as reported by NBC News. Facebook also announced that it was blocking the president’s account from posting for 24 hours. The social media company said in a statement, “[t]he violent protests in the Capitol today are a disgrace. We prohibit incitement and calls for violence on our platform. We are actively reviewing and removing any content that breaks these rules.” YouTube said in a separate statement that President Trump’s video violated “policies regarding content that alleges widespread fraud or errors changed the outcome.”

The following day, Facebook CEO Mark Zuckerberg wrote in a blog post that Facebook and Instagram were “ban[ning] President Donald Trump’s account from posting for at least the remainder of his term in office and perhaps “indefinitely.” The blog post read, “We believe the risks of allowing the President to continue to use our service during this period are simply too great.. . . Therefore, we are extending the block we have placed on his Facebook and Instagram accounts indefinitely and for at least the next two weeks until the peaceful transition of power is complete.”

Zuckerberg added that Facebook had determined that President Trump’s latest posts had been “likely” to only further escalate the violence occurring at the Capitol. The full blog post is available online.

On January 8, Twitter released a blog post in which it wrote that the President Trump’s account had been permanently suspended. The blog post read, “After close review of recent Tweets from the @realDonaldTrump account and the context around them — specifically how they are being received and interpreted on and off Twitter — we have permanently suspended the account due to the risk of further incitement of violence.” The blog post continued, “In the context of horrific events this week, we made it clear on Wednesday that additional violations of the Twitter Rules would potentially result in this very course of action.. . . [W]e [also] made it clear going back years that these accounts are not above our rules entirely and cannot use Twitter to incite violence, among other things. We will continue to be transparent around our policies and their enforcement.”

The blog post then detailed each of President Trump’s tweets that had violated Twitter’s rules and guidelines, warranting the permanent suspension. In particular, one tweet read, “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!” A second tweet read, “To all of those who have asked, I will not be going to the Inauguration on January 20th.”

Twitter concluded that “[d]ue to the ongoing tensions in the United States, and an uptick in the global conversation in regards to the people who violently stormed the Capitol, . . . these two Tweets must be read in the context of broader events in the country and the ways in which the President’s statements can be mobilized by different audiences, including to incite violence, as well as in the context of the pattern of behavior from this account in recent weeks. After assessing the language in these Tweets, . . . we have determined that these Tweets are in violation of the Glorification of Violence Policy and the user @realDonaldTrump should be immediately permanently suspended from the service.” The policy provides that Twitter users “may not threaten violence against an individual or a group of people. We also prohibit the glorification of violence.” The full blog post is available online. Twitter’s full Glorification of Violence Policy is available online.

According to the Associated Press (AP) on January 9, Twitch and Snapchat had also disabled President Trump’s accounts, among other examples of social media platforms and websites removing content related to President Trump.

Following the actions by the social media companies, several media law experts explained that the social media platforms’ decisions to suspend President Trump’s accounts did not violate the First Amendment. Experts pointed to the “State Action Doctrine,” which provides that the First Amendment only applies to government suppression of speech and expression, not private companies. For example, in a January 7 tweet, Jared Schroeder, an associate professor at the Southern Methodist University (SMU) Meadows School of the Arts tweeted, “To clarify - again: Social media firms blocking/suspending Trump's accounts does not violate the First Amendment. Forcing social media firms to leave his accounts up would violate the First Amendment.”

Other observers argued that Facebook’s and Twitter’s actions came too late. In a Jan. 9, 2021 interview with Bloomberg, Jessica González, co-chief executive officer of Free Press, a media advocacy group, praised the move by Twitter and Facebook, but noted that it was “a day late and a dollar short.”

Sen. Mark Warner (D-Va.) tweeted on January 8 that Twitter’s move was “[a]n overdue step,” but added that “it’s important to remember, this is much bigger than one person. It’s about an entire ecosystem that allows misinformation and hate to spread and fester unchecked.”

Laura Gomez, a former Twitter employee and founder of Proyecto Solace, an online platform providing “safe spaces” for Latinx peoples, said on Bloomberg Television on January 8, “Many people of color and women who worked at [Twitter] and used this platform warned about the dangers of Trump and all of his supporters and these extremists using this platform.. . . But unfortunately no one listened.”

However, other experts raised concerns about social media platforms temporarily or permanently suspending President Trump. On January 8, Kate Ruane, a senior legislative counsel at the American Civil Liberties Union (ACLU) said in a statement that social media platforms’ decision to suspend President Trump could set a dangerous precedent allowing the companies to silence different voices. “For months, President Trump has been using social media platforms to seed doubt about the results of the election and to undermine the will of voters,” the statement read. “We understand the desire to permanently suspend him now, but it should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people from platforms that have become indispensable for the speech of billions — especially when political realities make those decisions easier.”

In an interview with The New York Times, Gregory P. Magarian, a law professor at Washington University, said, “I want a wide range of ideas, even those I loathe, to be heard, and I think Twitter especially holds a concerning degree of power over public discourse.”

In a January 7 statement, the Electronic Frontier Foundation (EFF) wrote that “[t]he decisions by Twitter, Facebook, Instagram, Snapchat, and others to suspend and/or block President Trump’s communications via their platforms is a simple exercise of their rights, under the First Amendment and Section 230 [of the Communications Decency Act], to curate their sites. We support those rights.” However, EFF also wrote that the organization was “always concerned when platforms take on the role of censors, which is why we continue to call on them to apply a human rights framework to those decisions. We also note that those same platforms have chosen, for years, to privilege some speakers — particularly governmental officials — over others, not just in the U.S., but in other countries as well. A platform should not apply one set of rules to most of its users, and then apply a more permissive set of rules to politicians and world leaders who are already immensely powerful. Instead, they should be precisely as judicious about removing the content of ordinary users as they have been to date regarding heads of state.”

EFF added, “Going forward, we call once again on the platforms to be more transparent and consistent in how they apply their rules—and we call on policymakers to find ways to foster competition so that users have numerous editorial options and policies from which to choose. The full statement is available online.

Following the permanent bans by Facebook and Twitter, President Trump sought alternative social media options. The AP reported on Jan. 9, 2021 that Parler, a far-right friendly social media platform, could be “a leading candidate.” However, the AP noted that Google and Apple had both removed Parler from their app stores.

Additionally, on January 9, several media outlets reported that Amazon had removed Parler from its web hosting service, Amazon Web Services (AWS), citing numerous examples of posts “encourag[ing] and incit[ing] violence.” In an email obtained by BuzzFeed News, an AWS Trust and Safety team told Parler Chief Policy Officer Amy Peikoff that the calls for violence on the social media platform violated AWS’s terms of service. The email read, “Recently, we’ve seen a steady increase in this violent content on your website, all of which violates our terms.. . . It’s clear that Parler does not have an effective process to comply with the AWS terms of service.” According to BuzzFeed News on January 9, Amazon said that the company “was unconvinced that the service’s plan to use volunteers to moderate calls for violence and hate speech would be effective.” The full email is available online.

In a January 9 post, Parler CEO John Matze said that Amazon’s move could mean the platform would be offline and unavailable for up to a week. He added, “This was a coordinated attack by the tech giants to kill competition in the market place.. . . We were too successful too fast.”

The AP also suggested the possibility that that President Trump “may launch his own platform,” but added that it “won’t happen overnight.” In a statement on January 8, President Trump said, “We have been negotiating with various other sites, and will have a big announcement soon, while we also look at the possibilities of building out our own platform in the near future.”

As the Bulletin went to press, President Trump had not joined another social media platform, nor had he announced the creation of his own.

This report is compiled by Scott Memmel, Postdoctoral Associate, and will be updated as the situation warrants. For further information, or to provide additions or corrections, please email Silha Center Director Jane E. Kirtley at [email protected].