Charlottesville, January 6 and Incitement: Can Civil Conspiracy Laws Permit an End-Run around Brandenburg v. Ohio?

Journal Title
Journal ISSN
Volume Title
Communication Law Review
In this article we analyze how courts have applied the federal Anti-Riot Act, the Brandenburg test for incitement, and civil conspiracy laws to two events: 1) the 2017 Unite the Right march in Charlottesville, Virginia, and 2) the January 6, 2021 insurrection and the storming of the U.S. Capitol. The thesis of this article is that civil conspiracy laws will be more effective for plaintiffs seeking redress of grievances against Donald Trump for the January 6, 2021 insurrection than will invoking the federal Anti-Riot Act because the Brandenburg test’s requirement of proving a speaker’s intent to incite violence is too steep a hill to climb. When plaintiffs file civil conspiracy suits, there is no guarantee that they will prevail. Whether they win or lose, however, they may be trying to turn a civil trial into a public forum in order to focus society’s attention on grievous wrongs that they have suffered.
This article was originally published in Communication Law Review. The journal is available at and the version of record is available at:
Dee, J. (2022). Charlottesville, January 6 and incitement: Can civil conspiracy laws permit an end-run around brandenburg v. Ohio? Communication Law Review, 22(1).