Using history to move forward the public dialogue on free speech and social justice.

The Democratic Response to Former President Trump's First Amendment Impeachment Defense

As I talked about in my last post, a good portion of former President Trump's legal defense for his impeachment trial rests on the First Amendment. His lawyers' basic argument on these grounds is that Trump's speech on January 6th to his supporters – the speech that the prosecuting impeachment managers say was incitement to insurrection – was protected speech under the First Amendment. I mentioned previously that this was likely not a strong argument: first because impeachment is not a criminal trial and therefore has nothing to do with whether or not Trump's speech could be criminally prosecuted, and second because, even if the First Amendment did apply to impeachment, it would possible that Trump's speech would not warrant protection under the Brandenburg test.

The House impeachment managers made effectively the same argument in their rebuttal today against Trump's defense team. They cite a number of recent statements from First Amendment scholars – including the letter signed by 144 First Amendment legal scholars I also mentioned previously. For the full context, here are both sections of their rebuttal that addresses the First Amendment:1

The First Amendment protects our democratic system—but it does not protect a President who incites his supporters to imperil that system through violence. In the words of the Nation’s leading First Amendment scholars, the argument that the First Amendment prevents the Senate from convicting the President is “legally frivolous.” Accepting President Trump’s argument would mean that Congress could not impeach a President who burned an American flag on national television, or who spoke at a Ku Klux Klan rally in a white hood, or who wore a swastika while leading a march through a Jewish neighborhood—all of which is expression protected by the First Amendment but would obviously be grounds for impeachment. The First Amendment does not immunize President Trump from impeachment or limit the Senate’s power to protect the Nation from an unfit leader. And even assuming the First Amendment applied, it would certainly not protect President Trump’s speech on January 6, which incited lawless... President Trump’s reliance on the First Amendment is an insult to the values that the First Amendment enshrines. In the words of nearly 150 First Amendment lawyers and constitutional scholars, President Trump’s First Amendment defense is “legally frivolous.” President Trump argues that he is “protected by the First Amendment” “[l]ike all Americans.” He is wrong from the beginning: the President is not “[l]ike all Americans.” The First Amendment has no application in an impeachment proceeding, which does not seek to punish unlawful speech, but instead to protect the Nation from a President who violated his oath of office and abused the public trust. Under President Trump’s view of the First Amendment, even a sitting President who strenuously urged States to secede from the Union and rebel against the federal government would be immune from impeachment. Likewise, a President could declare his loyalty to a foreign power or publicly renounce his oath “to preserve, protect, and defend the Constitution”—all without fear of impeachment. The First Amendment provides no such immunity for a President who has committed “high Crimes and Misdemeanors.” In fact, the Senate has confirmed that the First Amendment does not limit its power to convict in an impeachment proceeding. In 1804, the Senate convicted Judge John Pickering in part for inflammatory and politically charged statements he made from the bench. No precedent supports President Trump’s contrary view. He cites the impeachment of President Johnson in 1868, contending that the Senate there established that a President cannot be convicted and disqualified. But the Senate set no such precedent in President Johnson’s impeachment. As President Trump notes, one of the articles of impeachment charged President Johnson with insulting and denouncing Congress by “mak[ing] and declar[ing] ... certain intemperate, inflammatory, and scandalous harangues ... [which] are peculiarly indecent and unbecoming in the Chief Magistrate of the United States.” While some Senators expressed concern that President Johnson’s remarks were constitutionally protected, others disagreed. Senator Jacob Howard, for example, stated that “[n]o question of the ‘freedom of speech’ arises here." Ultimately the Senate never voted on the article and thus made no judgment about the relevance of the First Amendment. In any event, there is no comparison between President Johnson’s “intemperate” broadsides and President Trump’s incitement of an insurrection. Indeed, even if—contrary to precedent and scholarship—the First Amendment were understood to restrict Congress’s power over impeachments, it still would not protect President Trump’s calls to violence. In Brandenburg v. Ohio, the Supreme Court explained that, while the First Amendment prohibits states from punishing “mere advocacy,” it does not preclude punishment for speech that is “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” President Trump’s speech falls squarely within this exception for incitement. His statements on January 6, particularly in the context of his prior remarks, were“directed to” and “likely to incite or produce” imminent unlawful action. President Trump incited a crowd to go to the Capitol and fight, immediately before they stormed the Capitol. These statements would not be protected whether they were made by an elected official, a civil servant, or a private citizen—contrary to President Trump’s lengthy argument that those distinctions should matter. President Trump is not helped by his reliance on a case concerning punishment for statements made by an elected official “as a private citizen” that “did not present a danger to the administration of justice.” Nor does the Supreme Court’s recognition that an elected legislator could not be excluded from state office for “criticizing public policy” advance President Trump’s claim, where the Court distinguished that situation from one in which “a legislator swears to an oath pro forma while ... manifesting his ... indifference to the oath.” President Trump’s speech was not a criticism of public policy—rather, it was a repudiation of his oath of office as he incited a violent insurrection and then manifested callous indifference to its deadly consequences. President Trump attempts to equate his January 6 speech to statements by other politicians, arguing that convicting him will chill political speech. But context matters under the First Amendment. While other political figures have used heated rhetoric, none of the speeches that President Trump cites bears any resemblance to President Trump’s anti-democratic effort to prolong his presidency by exhorting a mob to attack the Congress. President Trump spoke to supporters who were angry, prepared for violence, and intent on disrupting Congress’s counting of the electoral votes. Knowing all that, he launched into an inflammatory speech that was bound to result in the violence that followed. And, of great significance, as his supporters overtook the Capitol, instead of acting to stop them, he watched delightedly on television, continued to disparage his Vice President, and lobbied Senators to overturn the election. That conduct is impeachable.

There are some comments worth making here. The examples mentioned in this rebuttal of protected speech that might still be impeachable includes the following, “Accepting President Trump’s argument would mean that Congress could not impeach a President who burned an American flag on national television, or who spoke at a Ku Klux Klan rally in a white hood, or who wore a swastika while leading a march through a Jewish neighborhood.” Each of these three are references to different landmarks free speech decisions. The flag burning reference is probably to Texas v. Johnson. The KKK reference is probably to Brandenburg and the march through a Jewish neighborhood example is clearly a reference to National Socialist Party of America v. Village of Skokie. Later references to a potential President urging secession and so on seem to be hypothetical implications of the defense team's argument.

At the very end of this section, the impeachment managers effectively make an argument for incitement along the lines of the Brandenburg test. Recall that it consisted of two prongs

(1) That a speech is directed to inciting or producing imminent lawless action; and
(2) That such a speech is actually likely to result in such action

We might say that (1) is the content prong and (2) is the context prong, and both are essential to have speech lose First Amendment protection. If I were to say everything Trump said through a Twitter account with 100 followers at midnight, I might meet (1). If I were to give a speech on the benefits of clean sidewalks and roadways encouraging a crowd gathered to pick up trash I might have speech likely to result in immediate action and therefore meet (2). But in neither case does my speech meet (1) and (2), because either the context or the content of my speech does not incite imminent lawless action.

To meet (1), the impeachment managers target, “President Trump’s anti-democratic effort to prolong his presidency by exhorting a mob to attack the Congress.” In other parts of their rebuttal, they highlight specific moments from the speech and of its immediate effects – something they used to great persuasive advantage during opening arguments today. However, they also seek to establish the context of Trump's speech (2) by highlighting his actions leading up to, during, and immediately following the riot which show a willingness to mislead the public, and then fail to address the attendant consequences (i.e. by not moving swiftly to quell the insurrection). They also highlight the context of the speech itself, including the attitude of the audience and the fact that concurrent with his speech, some members of the crowd had already tried to break into the Capitol Building. It strikes me that the impeachment managers are on stronger footing with (2), as the context is rather compelling. This is perhaps why they chose to end this section by reiterating that context:

President Trump spoke to supporters who were angry, prepared for violence, and intent on disrupting Congress’s counting of the electoral votes. Knowing all that, he launched into an inflammatory speech that was bound to result in the violence that followed. And, of great significance, as his supporters overtook the Capitol, instead of acting to stop them, he watched delightedly on television, continued to disparage his Vice President, and lobbied Senators to overturn the election."

Proving (1) seems to be the harder task, and I'll be watching to see exactly how they fight that out with the defense team.