Free Speech and the Impeachment Trial of 2021

The second impeachment trial of former President Donald Trump began this week in the Senate with Trump’s lawyers arguing in part that the former President’s statements are protected under the First Amendment as free speech.

Representative Joe Neguse of Colorado, one of the House Managers presenting arguments for conviction, asserted that the situation Trump had spent months creating with his rhetoric was “explosive,” and that on January 6, “he struck a match.”

Representative Jamie Raskin of Maryland, the Lead House Manager, emphasized that Trump’s oath and his unique position as the President of the United States, a public office, came with special obligations to uphold the laws and protect the integrity of the republic. He argued that Trump’s position as the president was the determining factor, just as is the case of any government employee.

Representative Raskin cited Brandenburg, a 1969 case holding that free speech supporting law-breaking and violence only rises to the level of unprotected speech when it encourages and is likely to incite immediate lawless action. He indicated he felt the facts of Brandenburg were substantially similar to the facts of the second impeachment, though admitted an impeachment is not a criminal case and is not bound by the same standards.

The First Amendment gives Americans a wide berth when it comes to free speech protections. Notable free speech cases other than Brandenburg include Schenck v. United States in 1919, Chaplinsky v. New Hampshire in 1942, and Terminiello v. Chicago in 1949.

In Schenck, the Court found that producing flyers encouraging draft resistance during World War I presented a “clear and present danger” intended to result in a crime. In this case, the protections of the First Amendment did not protect the defendant.

A later case, Chaplinsky, added a category of unprotected speech called “fighting words.” The Court defined “fighting words” as words that “by their very utterance, inflict injury or tend to incite an immediate breach of the peace.”

On the other hand, in Terminiello, the Court found that a Catholic priest’s speech subsequently followed by an uncontrollable crowd was protected by the First Amendment. The Court noted that words that incite anger cannot always be unlawful and are an important part of the free debate the United States celebrates.

During his opening remarks, one of Trump’s defense attorneys, Bruce Castor, asked, “This trial is about trading liberty for the security from the mob? Honestly, no. It can’t be.”

Ultimately, some argue that whether or not former President Donald Trump’s speech is protected by the First Amendment is not the defining question. The rules that apply in criminal trials do not necessarily apply to impeachment cases and there is no definitive definition of “high Crimes and Misdemeanors.” Senators may apply their own standards and definition in casting their vote.

Additional Reading

Brandenburg v. Ohio, 395 U.S. 444 (1969)

Schenck v. United States, 249 U.S. 47 (1919)

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

Terminiello v. Chicago, 337 U.S. 1 (1949)

Government Restraining of Content of Expression, Justia US Constitution Annotated (First Amendment)

Subsequent Punishment: Clear and Present Danger and Other Tests, Justia US Constitution Annotated (First Amendment)

House Impeachment Managers Say Trump’s ‘Incitement’ Is Not Protected Speech, NPR (February 10, 2021)

Impeachment, United States Senate

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