In Thompson v. Trump, various plaintiffs are suing President Trump, Donald J. Trump Jr., Rudy Giuliani, and others for injuries (physical or emotional) caused to them in the Capitol as a result of the January 6 riot. The core claims are brought under the federal statute banning conspiracy "to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof."
Today, Judge Amit Mehta concluded that there was sufficient evidence that President Trump participated in such a conspiracy, and that his January 6 speech wasn't protected by the First Amendment against civil liability for such conspiracy, because it fit within the "incitement" exception recognized in Brandenburg v. Ohio (1969): Speech is unprotected if it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (The court doesn't discuss any criminal prosecution questions, but in a criminal case the elements of incitement would presumably have to be proved beyond a reasonable doubt; in a civil case, preponderance of the evidence likely suffices.)
Here is the heart of the Court's incitement analysis (there's of course much more in the opinion, which is 112 pages long, about various other aspects of the case), followed by some reactions on my part:
