On Saturday, the Senate voted 57-43 to acquit former President Donald Trump on the single article of impeachment for inciting the insurrection at the Capitol. Without polling the senators individually, we can’t know exactly what prompted the 43 Republicans to vote against holding Trump accountable. But in the weeks and months ahead, we may hear free speech used often as an excuse for acquittal.
Impeachment lawyers for Trump closed their defense by arguing, in large part, that his speech on the Ellipse on the morning of Jan. 6 is protected First Amendment speech. They conclude, as a result, that he cannot be impeached. This is incorrect. The First Amendment isn’t a defense to impeachment proceedings, like it could be to criminal charges. Even if it was, Trump wouldn’t be entitled to it.
The First Amendment isn’t a defense to impeachment proceedings, like it could be to criminal charges. Even if it did, Trump wouldn’t be entitled to it.
The First Amendment can be offered as a defense to prosecution in a criminal case. If you’re indicted and an element of the alleged crime includes an exercise of your First Amendment rights, then you may have a defense that prevents your conviction. But that defense only goes so far.
That’s what happened in Brandenburg v. Ohio, a 1969 case where an Ohio Ku Klux Klan leader was convicted on state charges of inciting violence. A small group assembled at a farm, after inviting members of the press to film them. They claimed to be members of groups from across the country who would march on Congress at a later date because “We're not a revengent organization, but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.”
The U.S. Supreme Court reversed the conviction, noting that there was a difference between advocating the need for violence in the abstract and “preparing a group for violent action and steeling it to such action.” A conviction could only be had, the court concluded, if the advocacy for violence was directed to incite or produce “imminent lawless action” and was also “likely to incite or produce such action.”
So, when the government prosecutes a citizen for a crime, “mere advocacy” is not enough, that is conduct that falls within the First Amendment. Incitement to imminent lawless action breaks through the barrier of free speech and subjects the individual to criminal prosecution.
But, and here’s where Trump’s First Amendment defense falls apart, impeachment is not a criminal proceeding. Trump was not charged with a federal crime, nor was he subject to imprisonment upon conviction. Impeachment is meant to do something else, it is meant to hold a president accountable when he fails to uphold his oath of office. Alexander Hamilton explained in “Federalist 65” that impeachment concerns “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
The article of impeachment against Trump did not charge him with a violation of the federal criminal code. Instead, it charged that he "willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol,” a high crime and misdemeanor. Presidents can engage in behavior that while lawful is so egregious an abuse of the public trust as to be impeachable. If a president decided to wear a Camp Auschwitz shirt like the one worn by a member of the mob that attacked the Capitol, it would be legal for him to do so. But it would also warrant immediate impeachment.
Because an impeachment proceeding is not a criminal prosecution, the First Amendment doesn’t provide Trump with a defense here. A group of over 100 constitutional law scholars from across the political spectrum analyzed the issues and concluded that any First Amendment defense raised by Trump would be “legally frivolous” because a president can be impeached for lawful acts. Trump might be able to raise a First Amendment defense if he were subsequently prosecuted criminally, but it is no defense to the charge leveled against him in impeachment: that he violated his oath of office.
Trump’s lawyers contorted two Supreme Court cases, Wood v. Georgia and Bond v. Floyd, to suggest the First Amendment applies to impeachment. While these cases involve elected officials, they don’t involve impeachment and fail to lend any support to the argument Trump’s arguments.
That’s really the end of the inquiry. If you want, you can stop reading here. But because lawyers like to argue in the alternative, ruling out all the possibilities, we’ll take it a step further, for the sake of argument.
That’s really the end of the inquiry. If you want, you can stop reading here.
What if the First Amendment did apply to impeachment proceedings? Would it provide Trump with a defense in that case?
Here, the answer is still no. Even if the First Amendment applies to impeachment proceedings, Trump’s conduct on Jan. 6 goes beyond what it protects. There are limits. The First Amendment doesn’t protect yelling “fire” in a crowded movie theater. Nor does it protect an imminent incitement to lawless behavior. Trump’s exhortations to the crowd on Jan. 6 fall into that later category of unprotected speech and could form the basis for impeachment, even if First Amendment protections were extended to those proceedings.
That’s because his speech fails the test in Brandenburg v. Ohio. Trump’s rally ahead of the Capitol riot was unlike that case, where a conviction was reversed because the allegedly inciting speech happened before a small group of people on a farm and was about possible future action. Trump, after spending months undercutting people’s confidence in the integrity of the election, told his followers Jan. 6 would be “wild” and the chance to takeback what he claimed was a stolen election before Congress could certify it for Joe Biden. Then, on Jan. 6, he assembled thousands of people, including groups like the Proud Boys with a reputation for violence. And after telling them they were going to have to “fight like hell” if they wanted to keep their country, he unleashed them on the Capitol. As Rep. Madeleine Dean, D-Penn., one of the House impeachment managers said, “there was only one fight left” at this point: physically preventing Congress from certifying the vote.
The context and course of conduct overwhelmingly establish that Trump both intended to incite imminent lawless action and that his conduct was likely to incite such action. That means his speech falls outside of the First Amendment’s protection. Had he not intended to produce lawless actions, his reaction would have been horror over the attack on the Capitol, not “delight” followed by a reluctant and half-hearted entreaty hours later to the mob to go home. Trump encouraged an imminent attack on the Capitol by a mob that was primed to carry it out. So even if the First Amendment could apply to an impeachment setting, it would not apply to Trump’s case.
Lead House impeachment manager Rep. Jamie Raskin, D-Md., a constitutional law professor before he became a member of Congress, noted during the proceedings that “the First Amendment does not create some superpower immunity from impeachment for a president who attacks the Constitution in word and deed while rejecting the outcome of an election he happened to lose.” Trump’s lawyers’ efforts to turn it into a “superpower” fell well short of the mark. Their tortured reading of legal precedent may have played well to their audience of one and his supporters, but Republican senators do the country an extraordinary disservice by making it permissible for a president who has lost an election to engage in conduct designed to hold onto power by invoking the First Amendment.
Our country will be barely recognizable if future presidents can lie about the integrity of our election process, claim they won after the courts and independent state election processes confirm they lost, and then assemble a mob and instruct it to interfere with the peaceful transfer of power. And the senators who bought Trump’s First Amendment fallacy have given future presidents permission to try to succeed where Trump failed.