Do menacing comments about Hillary Clinton cross the First Amendment line?

[Commentary] The 2016 presidential election has been notable for the rhetorical vitriol pervading the campaign, and unfortunately Donald Trump’s suggestion that “Second Amendment people” might be able to offer some sort of corrective to a Hillary Clinton presidency is merely a continuation of this well-established pattern. Do any of Trump’s statements or those of his supporters cross the line of protected speech under the First Amendment? Probably not.

The relevant federal statue here — 18 USC Section 879(a)(3) — makes it a felony to threaten a presidential candidate with death or bodily harm. But the US Court of Appeals for the 9th Circuit has ruled that speakers should be accorded fairly wide latitude to express themselves in ways that do not pose a real and imminent threat. We look for guidance to the Supreme Court’s most recent case to test the limits of this sort of speech: Brandenburg v. Ohio. In that 1969 decision, the court set forth a three-part test to determine the contours of First Amendment sanctuary: Was criminal action (1) intended, (2) imminent and (3) likely? We all celebrate the First Amendment and its broad protections of speech, as egregious and unpresidential as that language might sometimes seem. But all political liberties come with limits, and a case could be made that Trump’s brutal entreaties have exceeded that limit. Should he continue to exhort violence at his rallies, it may be his own legal defense needs, rather than those of his followers, that he will need to worry about.