This column expresses the views of Gene Policinski, senior fellow for the First Amendment, Freedom Forum.
Let’s look at the First Amendment argument being raised as part of former President Donald J. Trump’s defense next week, in his second impeachment trial in the U.S. Senate.
Trump’s lawyers, in their brief filed Tuesday, argue two free speech points that largely rest on a 1969 Supreme Court case, Brandenburg v. Ohio.
Point one: Trump had a free speech right, as did any citizen, to raise claims of a fraudulent election following Nov. 3 voting. His words at a Jan. 6 rally just prior to the siege of the U.S. Capitol, even if dramatic and inflammatory, fall into the same protected zone, his lawyers argue.
After the election, Trump “exercised his First Amendment right under the Constitution to express his belief that the election results were suspect,” and noted “… the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation,” the brief states.
Point two: Trump’s rally remarks fall short of the legal requirements of “incitement” as set out in Brandenburg. Under that standard, three conditions for incitement must be proven: The speaker must have intended to spark criminal conduct by others; the words can reasonably be judged as likely to have sparked such action; and the resulting conduct was “imminent”— occurring immediately, as a result.
On this point, Trump’s lawyers deny he “incited the crowd to engage in destructive behavior.” They specifically deny that “the phrase ‘If you don’t fight like hell, you’re not going to have a country anymore’ had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general.”
The House impeachment managers, who will prosecute the case, contend the First Amendment simply is not involved in an impeachment trial, since it is a political proceeding rooted in the conduct of an officeholder.
“President Trump endangered the very constitutional system that protects all other rights, including freedom of expression,” the managers said in their brief, also filed Tuesday.
“It would be perverse to suggest that our shared commitment to free speech requires the Senate to ignore the obvious: That President Trump is singularly responsible for the violence and destruction that unfolded in our seat of government on Jan. 6,” the managers said.
This second impeachment trial may well be conducted outside constitutional considerations and focus on whether President Trump’s conduct, not his words, violated his oath of office to “preserve, protect and defend the Constitution of the United States.”
If House prosecutors persuade Senators — jurors in this trial — to vote on Trump’s conduct, they will have in effect removed the First Amendment and a key element of Trump’s defense from the proceedings.
Our speech about political matters and issues of public importance rightly garners the greatest level of free speech protection — seen as necessary for what courts have variously called the “robust” and “rough-and-tumble” debate required in a functional democracy.
Another way to analyze Trump’s defense is to use a 1919 Supreme Court decision in Schenck v. United States — partially limited by Brandenburg — in which Justice Oliver Wendell Holmes wrote, “The most stringent protection of free speech would not protect a man in falsely shouting ‘Fire’ in a theater and causing a panic.”
Commonly, the critical words omitted when quoting Holmes are “falsely” and “causing a panic.” Applying Holmes’s full standard to the impeachment trial, jurors will need to decide:
- Did Trump make the claim of a “stolen election” knowing it was false?
- Were his remarks around the election, combined with remarks at the rally, sufficiently inciteful to cause a “panic” by motivating the mob to invade the Capitol and attack police attempting to stop them?
The impeachment trial would seem headed to a purely political conclusion, with voting along party lines and a “no conviction” result.
But if Senate jurors want to make their decision along First Amendment lines, they will need to decide if Trump was justified in shouting “fire” in a crowded election theater and whether that caused the panic that was a mob breaking into the Capitol.