After having been impeached for a second time by the house, the articles of impeachment have been handed to the Senate to conduct a trial there. Trump's attorneys have outlined their "three pronged" defense for his actions: first, that "it is unconstitutional to impeach a former president;" second, that the rioters had been planning even before Trump's speech, and most of all, that his speech to his supporters right before the riot is protected by his first amendment rights.
However, as we learned in class, the freedom of speech is not an absolute right, and draws precedent from supreme court cases like Schenck v US and Brandenburg v Ohio. The first amendment protects political speech, unless it is both "directed at inciting or producing imminent lawless action" and "likely to incite or produce such action." In the case of Schenck, an activist was convicted for encouraging people to disobey the draft, and the Supreme court upheld the conviction on the grounds that Schenck's words had created a "clear and present danger." (Note that this was during war time, which could make a difference).
But based on the later case of Brandenburg--in which a KKK leader was convicted after delivering a speech at a rallyunder an Ohio law that prohibited the advocating of illegal activities--the Supreme Court showed that the standard of "imminent lawless action" is a very high standard for a plaintiff to meet, and overturned Brandenburg's conviction, essentially overruling Schenck. While at a first glance it may seem that Trump's speech is clearly incitement, the answer is not so clear when measured up against Brandenburg.
Additionally, the senate is a highly political institution (like how the Supreme Court is sometimes) and does not decide purely on legal grounds. The democrats will need to convince at least 17 republican senators to vote against Trump in order to convict him.
With all the case law considered, is Trump's speech still protected under his free speech rights? What might be some counter-arguments that the plaintiffs in Trump's case could use against this justification? As a society, where do we draw the line between protecting free political discourse vs protecting other rights?
NY times analysis of the speech itself
Precedent cases: Schenck v US Brandenburg v Ohio
6 comments:
I don't think the First Amendment is good justification for Trump's Jan 6th speech. Especially because of the aftermath of his speech (the capitol riots), it is pretty obvious that his speech incited insurrection. That being said, a lot of republican senators don't want to go against him. A political reason behind this is that if the GOP loses support of extreme Trump supporters (who would just flat-out stop voting), they would lose enough votes to put them in a bad spot for the next few election cycles. However, that argument begs the question: how many avid Trump supporters are there compared to republicans who hated Trump so much they voted for Biden? Personally, looking at the Georgia runoffs as an example, I think that there are more republicans that voted Biden than avid Trump supporters. Therefore, I think there is a second, more likely political reason. Senators want to get support from their constituents, and for people like Ted Cruz, that means agreeing with Trump more than agreeing with the Republican party, because that is what he believes will be the best way in order to gain constituents. This begs the question: is that the moral way of voting for impeachment? I think most would agree that the answer to that question is a no, but that doesn't mean that a lot of senators wouldn't base their vote to not accuse Trump on that. Going into the Senate impeachment trial, I think the votes will be relatively close, especially with Trump's weak defense, but I don't think he will lose (I personally think he should be impeached after his Jan 6 speech, but it is what it is). There will just be too much republican desire to keep their party and their seats as strong as possible, and I doubt a shaky defense will cause them to impeach Trump. It may happen, though, especially after seeing McConnell voice his opinion against Trump; I just find it to be unlikely.
Skimming through Trump's entire transcript, he does not explicitly state anywhere to commit violent acts or to break into the Capitol, only to walk to it. In fact, he tells supporters to go home after rioting breaks out, but Twitter censored him immediately after that. In Schenck v. US, Schenck explicitly tells people to dodge the draft; the same outright statement is not present here. As stated in this post, it takes an incredibly high standard to meet the current precedent set by Brandenburg v. Ohio, which Trump has not managed to break. Even then, 45 Republican senators out of 50 have already deemed the trial unconstitutional in a vote forced by Rand Paul; presumably, most of them will also vote to not convict him.
I think that an important takeaway from Schenck v. US and Brandenburg v. Ohio is that despite certain “tests” that must be overcome in order for the 1st amendment to not protect free speech, it is clear that not all speech can be protected and sometimes it is imperative that an individual's freedom of speech is suppressed in order to help preserve national security and public safety. In my opinion, Trump's speech on January 6th can be considered as speech that cannot be protected as free speech as it most certainly harms the nation and the principles of democracy. Just like how the supreme court in Schenck v. US took a look at the current circumstances of wartime in their ruling, one must look at the current politically heated and divided state the country was in. Whole population of individuals who wholeheartedly denied the legitimacy of Joe Biden’s election out of false evidence were livid and on the brink of setting chaos. Thus, when giving such a speech that encourages people to storm the capitol, take action into their own hands and subsequently impede democratic progress, it can be seen as potentially harmful given the current circumstances as the audience will not only take the President seriously but fully take action based on what he said. Thus, this could be seen as incentivizing imminent lawless action as mentioned through the precedent case of Brandenburg v. Ohio as, in tense times, Trump encouraged an unlawful attack on the capitol which was imminent as shortly after delivering the speech, the riot occurred. Thus, due to the present circumstances of an intense political and ideological division and Trump’s clear encouragement towards his supporters to storm the capitol, his speech on January 6th should not be protected under the 6th amendment as a line needs to be drawn between national security and individual freedoms.
As Justice Holmes stated in the majority opinion for Schenck v US, the circumstances surrounding speech must be considered when evaluating its “character” and whether the speech ought to be protected under the first amendment. Regardless of which test is being used to determine the legality of the speech, the fact is that the Capitol riot occurred (and was directed toward) the crucial process of counting the electoral votes was taking place, objectively posing a threat to national security and the continuity of our democracy, and this is the context in which Trump’s speech should be considered. As previous commenters noted, however, legality alone will not ensure (or undermine) a conviction in this case; impeachment trials have become inherently political (if they weren’t always so), and casting a vote in the Senate always has some implications on one’s political future. On these terms, I think that it then depends on the extent to which the GOP as an establishment separates itself from Trump and whether they even can, based on the interests of certain officials’ constituents. Thus, a conviction seems unlikely, but I doubt many will forget the role Trump played in fueling the animosity that has plagued Washington/the country.
It all comes down to whether Trump's speech was meant to incite violence. After reading the NYT analysis of the speech, I have to agree with Barry that Trump never explicitly told his supporters to storm and break into Capitol Hill. However, his speech does appear to embody a more violent and aggressive tone. But for all we know, "walk[ing] down to the Capitol" and "cheering on our brave senators and congressmen and women" could very much refer to just protesting. Trump often is very straightforward when he speaks and says what he's gonna do explicitly like building the wall. Considering Trump's rhetoric for the past years, he probably would have said "go into the Capitol or attack the Capitol" or something like that, which would clearly be illegal. Regardless, like everyone else mentioned, it is unlikely that Trump will be convicted of inciting the violence and probably will not face any severe punishment either
Coming here from after the trials have begun, we have seen that Trump's original lawyers had quit shortly before his trial, and that he sought out new ones last minute to replace them. Following today, we have seen that Trump was unhappy/disappointed in his impeachment attorneys, especially after members of the Republican party said that these attorneys "rambled" and had contradicting/confusing arguments. Bruce Castor (one of his attorneys), left the floor mystified after his opening remarks. Some Republican Senators who previously believed that Trump's trial was unconstitutional are now beginning to change their minds after hearing the lawyers' inadequate arguments, which could possible affect the chances of his conviction.
To build off of previous commenters, I think that the First Amendment does not excuse Trump's actions, as he took an oath to "preserve, protect, and defend the Constitution of the United States." Furthermore, like Niyati said, Trump's speech was a threat to our national security and democracy; inciting insurrection is certainly not protected by the First Amendment. To respond to some comments saying that his speech didn't explicitly tell his supporters to incite violence, I think it was clearly implied, and that this was not only limited to his speech— Trump had been spreading misinformation about the accuracy of the election for months, scapegoating others and leading his supporters to wrongly believe that the election was "stolen," and that something drastic needed to be done. It's also disheartening to see some Republicans telling others speaking about their trauma from the Jan. 6 to get over it, as hearing Representative AOC and many other's experiences, it's apparent that these insurrectionists have caused so much trauma by breaching the Capitol, something that can never be forgotten.
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