At a protest by Direct Action Everywhere (DxE), the leading open-animal-rescue activist organization, protesters entered a duck farm and chained themselves to the front gate. Wayne Hsiung arrived later along with hundreds of other protesters. He had had no role in planning or organizing the lockdown, which had already begun by the time he arrived. Nor did he actually provide any assistance to the civil disobedience protesters. Instead, his trial centered on a speech he gave during the lockdown, encouraging people to give food, water, and shade to the locked-down protesters:

So please take a photograph, give some shade to the activists. If somebody needs water – talk to the folks who are chained to this fence, if they need some water, if they need some food, please help them. Because they’re carrying animals, they might need your help giving them water or giving them food, please do that for them.

Mr. Hsiung was charged with trespass, and the jury was given a standard California instruction for “aiding and abetting” liability, allowing conviction where one “encourages” or “promotes” the crime, and “d[id] in fact” assist the achievement of the crime. The jury was told that it could convict if he had engaged in speech that “promoted” the civil disobedience of others. But for fifty years the Supreme Court has held that the First Amendment demands that such speech incite immediate lawlessness, and be likely to provoke it, before a defendant can be held liable for crime-endorsing speech.

On his appeal from his conviction, the Center for Constitutional Rights' friend-of-the-court brief, submitted with the ACLU of Northern California and National Lawyers’ Guild, makes two arguments. First, providing humanitarian relief to protesters who are already locked to a fence does not make it more likely that they will continue to be locked to the fence. Advocating the “duty, necessity, or propriety” of such relief does not make it more likely for the illegal action—already underway and designed to last until law enforcement removes the individuals by force—to continue. Indeed, Mr. Hsiung's words are exactly the sort of “abstract teaching . . . of the moral propriety or even moral necessity for a resort to” illegal direct action that the Supreme Court’s seminal Brandenburg v. Ohio decision held to be categorically protected. Second, and of broader concern, allowing juries to convict people for “promoting” lawbreaking threatens to fully undermine Brandenburg’s protections in a wide variety of other contexts where individuals express support for civil disobedience by political protesters—including, for example, multiple statements from elected officials during the George Floyd protests.