Lock Them Up? We Wish.

But see: First Amendment

No, Donald Trump and JD Vance are not “getting charged” with inciting violence against the Haitian community in Springfield, Ohio. Or, at least, not in the way those words are traditionally understood.

And as disgusting as Trump and Vance’s lies are, that’s probably for the best.

Blood Libel as a Campaign Strategy

The Republican party spent the past month spreading racist lies about Haitians in Ohio eating pets. In the week before the presidential debate, Vance pushed the story hard, despite knowing full well that it was false. Then during the debate in Philadelphia, after Vice President Harris needled him about his crowd size, Trump shouted “In Springfield, they're eating the dogs. The people that came in. They're eating the cats. They're eating the pets of the people that live there,” a line which was played over and over again in the media and immediately turned into a viral TikTok dance craze.

Those lies led to weeks of bomb threats that shut down schools in Springfield. Haitian residents suffered a deluge of threats and hate crimes, forcing them to keep their children in the house for their own safety. And despite local officials — most of whom are Republicans — debunking the story and begging them to stop saying it, Trump and Vance continued. Vance even blamed the press for making him do it, telling CNN’s Dana Bash “If I have to create stories so that the American media actually pays attention to the suffering of the American people, then that’s what I’m going to do.”

And so, perhaps in desperation, a national nonprofit called the Haitian Bridge Alliance along with its executive director Guerline Jozef have filed “charges” under § 2935.09(D) of the Ohio Revised Code, which provides that:

A private citizen having knowledge of the facts who seeks to cause an arrest or prosecution under this section may file an affidavit charging the offense committed with a reviewing official for the purpose of review to determine if a complaint should be filed by the prosecuting attorney or attorney charged by law with the prosecution of offenses in the court or before the magistrate. A private citizen may file an affidavit charging the offense committed with the clerk of a court of record before or after the normal business hours of the reviewing officials if the clerk's office is open at those times. A clerk who receives an affidavit before or after the normal business hours of the reviewing officials shall forward it to a reviewing official when the reviewing official's normal business hours resume.

Essentially, they’ve petitioned the court to initiate a prosecution of Trump and Vance, either by issuing an arrest warrant or by ordering the district attorney to file charges. The family of Tamir Rice, the 12-year-old black child shot by police in 2014, filed a similar “bench memorandum” seeking to initiate a prosecution in that case. Such efforts are generally understood as an attempt to draw attention to an injustice, though, rather than actual criminal charges.

And while publicizing a gross injustice is an admirable goal, the complainants appear to be mistaken about what their petition can do as a matter of law. They suggest that filing an affidavit entitles them to a public hearing on their claims. In reality, the judge is obligated to determine whether the case is “meritorious” based on the affidavits filed or, only if necessary, a public hearing. The standard is whether, in the judge’s discretion, the allegations and the evidence in support thereof constitute probable cause to believe that a crime has been committed. If it is not meritorious, the petition will be dismissed.

Lying Is Not a Crime, Even When the Lie Is Terrible

Here, Trump and Vance’s conduct, vile as it is, is simply not criminal. So, for instance, the memorandum claims that they “made false alarms in violation of R.C. 2917.32(A) by knowingly causing alarm in the Springfield, Ohio community by continuing to repeat lies that state and local officials have said were false.”

But R.C. 2917.32(A) says that “No person shall … Initiate or circulate a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that the report or warning is false and likely to cause public inconvenience or alarm.” And while “eating the pets” would likely be a crime, the law is really about bomb threats, not blood libel. Similarly, the memorandum alleges that Trump and Vance “committed aggravating menacing in violation R.C. 2917.21(A) by knowingly making intimidating statements with the intent to abuse, threaten, or harass the recipients.” That statute is meant to criminalize phone harassment, not publicly lying about a racial minority. 

But even if you could shoehorn Trump and Vance’s outrageous conduct into the Ohio statute, the prosecution would never hold up because this sort of speech, disgusting as it is, is protected by the First Amendment.

What we’re really grappling with here is a charge of “incitement,” recharacterized as “menacing” or making false reports. And indeed the state of Ohio tried this already in 1969, leading to the Supreme Court’s seminal ruling in Brandenburg v. Ohio. In that case, Ohio prosecuted a Grand Wizard of the KKK who concluded an extended racist rant by shouting, “It’s possible there might have to be some vengeance taken.” He was convicted under the state’s Criminal Syndicalism Statute for “advocating … crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

The Supreme Court held that Ohio could not punish mere advocacy of violence, much less lies which might inspire the audience to engage in violence at some undefined future point. Under Brandenburg, the state must prove that the speech was “directed to inciting or producing imminent lawless action” and was in fact likely to do so. Trump and Vance’s vicious lies are thus protected by the First Amendment, even when they’re aimed at a bunch of volatile racists who may go out and commit crimes themselves. Neither of them explicitly called for immediate violence against the Haitian immigrant community in Springfield, and they cannot be prosecuted because other people subsequently made bomb threats or engaged in hate crimes.

Ironically, the memorandum makes the best argument for why we should tolerate hateful speech by invoking the most misunderstood trope about free speech.

“Like those who falsely shout ‘fire!’ in a crowded theater, Trump and Vance do not color within the lines of the First Amendment. They commit criminal acts,” HBA argues.

But the “fire in a crowded movie theater” case was never about anyone shouting fire in a theater, crowded or otherwise. It involved peaceful socialists convicted of violating the Espionage Act by handing out leaflets encouraging young men to resist the draft. In a 1919 decision captioned Schenck v. US, the Supreme Court upheld those convictions, with Justice Oliver Wendell Holmes writing that the leaflets “are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Schenck was finally overruled in 1969 by the Brandenburg decision. But HBA is functionally calling for a return to the Schenck days, where public protest could get you locked up. Put simply, this is an attempt to prosecute speech which is deeply offensive and immoral, but not a crime.

In fact, Vance and Trump’s disgusting lies are probably protected from civil suits as well, since you can’t defame an entire ethnic group. And while there might be a case if, in a town that had one Haitian family, Trump and Vance said “the Haitians are eating your pets,” that’s simply not going to work with a minority group of an estimated 15,000 people, comprising something like one-quarter of the population.

We’re The Ones Who Are Going To Get Schenck-ed

There is probably no legal remedy for the horrible lies Vance and Trump have spewed. And that’s a good thing, at least when it comes to American law. Because Trump is out there every day threatening to jail his critics for the putative harms their speech might incite.

On Monday in Pennsylvania he called to prosecute critics of the Supreme Court.

“These people should be put in jail the way they talk about our judges and our justices, trying to get them to sway their vote, sway their decision,” he blustered to the crowd.

Last month in Arizona he said “Playing the ref with our judges and justices should be punishable by very serious fines and beyond that.”

Vance has accused Democrats, and the Harris campaign in particular, of culpability for the assassination attempts against Trump.

“The big difference between conservatives and liberals is that no one has tried to kill Kamala Harris in the last couple of months, and two people now have tried to kill Donald Trump in the last couple of months,” he fulminated last week in Atlanta. “I’d say that’s pretty strong evidence that the left needs to tone down the rhetoric, and needs to cut this crap out.”

In other words: there’s nothing MAGA nation wants more than to return to a pre-Brandenberg world, particularly one with Republicans dominating every level of the judiciary and holding the reins at the Justice Department. In such a world, Republicans could use charges of “incitement” to criminalize all kinds of protest.

So, condemn these horrible, racist lies about immigrants and minorities. Call that shit out every time — do not let it become background noise. But to paraphrase Barack Obama, “Don’t shout fire in a crowded theater! Vote.”