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Are Trump’s Rally Remarks Protected by the First Amendment?

Amid the outrage and sorrow stemming from the destructive and lethal storming of the U.S. Capitol on January 6 are renewed calls from across the political spectrum for President Trump to resign, be impeached, or to be removed by other means.  The recently released graphic video and details showing a mob violently attack a police officer have further fueled calls for justice.

Democratic members of the U.S. House of Representatives and its allies supporting the president’s ouster rely most heavily on the notion that the president’s remarks before a pro-Trump crowd incited some members of that gathering to proceed apace from the White House to the Capitol to break in and create havoc, and worse.

A draft of the House article of impeachment claims President Trump engaged in “high crimes and misdemeanors by willfully inciting violence against the Government of the United States,” and further by “willfully made statements that encouraged – and foreseeably resulted in – imminent lawless action at the Capitol.”

Many commentators across the political spectrum agree with this sentiment.  

House Speaker Nancy Pelosi quickly called for Trump’s impeachment, as did left-leaning media outlets such as The Atlantic (calling Trump’s refusal to accept the Biden victory as “sedition”) and The New Yorker (“there is little doubt” that Trump “incite[d] a mob” to attack the Capitol). 

So, too, have some Republican officials.  While not speaking to criminal offenses, former Trump Attorney General William Barr commented, “Orchestrating a mob to pressure Congress is inexcusable.”  GOP Sen. Mitt Romney of Utah claimed Trump caused an “insurrection.”

The Editorial Board of The Wall Street Journal was equally blunt:

This was an assault on the constitutional process of transferring power after an election.  It was also an assault on the legislature from an executive sworn to uphold the laws of the United States.  This goes beyond merely refusing to concede defeat.  In our view, it crosses a constitutional line that Mr. Trump hasn’t previously crossed.  It is impeachable.

And the No. 3 GOP official in the House, Rep. Lynn Cheney of Wyoming, summarized her support for impeachment as follows:

The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack.  Everything that followed was his doing.  None of this would have happened without the President.

Whether the words and actions by the president constitute impermissible speech and the premise upon which to base impeachment, though, deserve an examination through a legal lens.

For decades, the U.S. Supreme Court has taken a rather restrictive view of what type of speech is constitutionally impermissible.  In the 1969 case of Brandenburg v. Ohio, the Court held that the government may only prohibit speech that is “directed to inciting or producing imminent lawless action” and that such speech is “likely to incite or produce such action.”

In two subsequent cases, the Court explained how narrow this test is.  In Hess v. Indiana, the Court considered whether an Indiana University protestor had violated the speech clause by saying “We’ll take the f***ing street again”.  The Court ruled that the protestor’s profanity was protected under the Brandenburg test, as the speech “amounted to nothing more than advocacy of illegal action at some indefinite future time.”  

The Court explained that “since there was no evidence . . . that [the protestor’s] words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’”

In NAACP v. Claiborne Hardware Co., Charles Evers threatened violence against those who refused to boycott white businesses.  The Supreme Court applied the Brandenburg test and found that the speech again was protected.  “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases,” the Court said.  “An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause.  When such appeals do not incite lawless action, they must be regarded as free speech.”

With the Supreme Court’s legal underpinnings as a backdrop, consider now the president’s remarks just a short time before his supporters made their way to the Capitol and ransacked it.  

Trump lambasted the purported fraud of the presidential election and spoke in his typical style – rambling, at times incoherent, and filled with contempt.  He beseeched what was – at the time, anyway – a non-violent crowd to “walk” to the Capitol to express their displeasure.  

The scene was summarized by Washington journalist Paul Blumenthal as follows:

A deranged mob of Americans, fueled by lies about election fraud peddled by the president of the United States along with multiple senators and House members, sacked the U.S. Capitol on Wednesday as part of an insurrection encouraged by Donald Trump to stop the constitutional process allowing for the peaceful transfer of power taking place within the building.

“[Y]ou’ll never take back your country with weakness,” Trump told the rioters immediately before they marched on the Capital.  “You have to show strength and be strong.”

The day before, at a rally in the GOP stronghold Dalton, Georgia, the president reportedly bellowed, “They’re not taking this White House.  We’re going to fight like hell.” 

This analysis does not condone such inflammatory rhetoric.  Rather, it is only to suggest that a fair and impartial adjudicator – in applying tested principles set forth by the Supreme Court – would not find the president’s remarks to be impermissible speech under the First Amendment, and hence would serve as a flimsy foundation upon which to base impeachment.  

As constitutional law professor Josh Blackman suggests, Trump’s remarks likely would not be sufficient under the Brandenburg incitement standard especially because most of those remarks do not urge imminent lawless action, with the emphasis on imminent.

Blackman’s view is shared by others, including George Washington University legal scholar Jonathan Turley.  Turley told Fox News that in his rally speech, Trump does not call for riots, violence, or any other imminent violence.  Ergo, his language would be insufficient to a charge of insurrection or incitement.

Turley previously opined that Trump did not call for lawless action, but rather just a protest, and noted that the majority of the tens of thousands of protestors at the gathering with Trump prior to the riotous acts were not violent and did not enter the Capitol. 

In an article seemingly supportive of tying Trump’s remarks to an impeachment effort, The New Yorker noted that Trump “gathered a crowd,” “fomented anger at an election that he falsely said had been stolen,” “urged [his supporters] to ‘walk down to the Capitol’ and ‘fight much harder,’” and “goaded” them that “You’ll never take back our country with weakness.”

But “gathering,” “fomenting,” “urging,” and “goading” do not, under a legal lens, necessarily amount to “inciting imminent lawless action.”

Indeed, the scene that Wednesday morning outside the White House was hardly remarkable.  After all, scores of protests, rallies, and other such gatherings around the White House and National Mall are regular occurrences.

And the Supreme Court’s emphasis on “imminent” unlawful conduct seems belied in this instance by more recent reporting that the nefarious plans of a mob attack on the Capitol had been in the works well before the president addressed his crowd.

To be sure, there are arguments other than using “incitement” language upon which to base impeachment, including Trump’s months-long refusal to accept his election defeat, which could be read as sedition; his exhortation to Georgia Secretary of State Brad Raffensperger to “find 11,780” votes to help overturn the election results, which could constitute a felony violation of Georgia election laws; or, more generally, because he is simply unfit to hold office.  

While a second impeachment in the House may further sully the president’s reputation, a conviction in the Senate – and the subsequent prohibition from holding future elective office – may be futile.  If Trump is no longer president, after all, who is there left to convict?

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