Alan Rozenshtein and Jed Shugerman have posted this draft on SSRN (forthcoming, Constitutional Commentary). Here is the abstract:

A prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to the remove the magnetometers from the entrances to the rally and his repeated attempts to join the crowd at the Capitol.

These overt acts offer a principled basis for criminal liability for Trump’s speech, while preserving the First Amendment’s historically strong protections for inflammatory but non-inciting political speech. The prosecutorial use of overt acts also accords with historical practice going back to the Founding, when the Framers, influenced by prerevolutionary English practice, required evidence of overt acts for the most serious of crimes: treason. In an age of increasing political polarization and violence, drawing a line between permitted and prohibited speech by our political officials is of the utmost importance. This essay is an attempt to make that line clearer.