As we approach the Senate trial on the impeachment of former President Donald Trump for “incitement of insurrection against the Republic he swore to protect” on Feb. 9, his lawyers and other defenders have made the astonishing claim that convicting him would somehow violate freedom of speech. Judicial Watch’s Tom Fitton even asserted that convicting Trump would be “devastating to the First Amendment” because it “would be a green light” to “remove others that engage in core political speech” that “would be criminalized if the Left doesn’t like it.”
As a constitutional lawyer who has defended the First Amendment for almost forty years, I agree with lawyer Chris Truax that these free speech claims are “absurd.” First, the First Amendment protects members of the public from having their speech suppressed or punished by the government, and does not shield government officials for accountability for their actions, even if they involve speech. A private citizen would have the First Amendment right to proclaim loyalty to Russia or China or to advocate the secession of Texas from the union. Does anyone seriously contend that free speech allows a U.S. president to violate his oath of office and do the same, and also escape accountability through impeachment for such treasonous acts? Apparently, Trump and his supporters do.
As the House impeachment managers have pointed out, moreover, even if Trump’s actions were treated like those of a private citizen, and even if the First Amendment applied to Congressional efforts to hold a president accountable as it does to a criminal prosecution, the free speech defense would still fail. The Supreme Court ruled more than 50 years ago that the First Amendment does not protect speech when it is “directed to inciting or producing imminent lawless action” and is “likely” to do so. Trump’s incendiary remarks just before the Jan. 6 violent insurrection at the Capitol, when he exhorted his followers to “go to the Capitol” and “fight like hell,” particularly when combined with evidence of his intent like reports that he was “delighted” as the riots were happening, could well be enough to warrant even a criminal conviction of Trump by a court. They are clearly enough to justify a conviction on impeachment in the Senate.
I have always believed that the First Amendment is first in our Constitution because, in important ways, free speech and the other rights it safeguards are crucial to protect our democracy. The attempt of a disgraced ex-president and his seditionist collaborators to try to hide behind free speech, as well as similar recent far right efforts to use freedom of speech to justify the violent actions at the Capitol on Jan. 6, truly dishonors our First Amendment.