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• The Trump defense team is arguing that what he said at the Jan. 6 rally was within his First Amendment rights and not a call to violence — especially, they say, because he urged them to remain peaceful.
• A broad range of legal experts agree that incitement is hard to prove in court. But most also agreed that an impeachment doesn’t need to meet the same standard as a court case.
• We found wide agreement among experts that remarks should be taken as a whole, and that adding in an exhortation to remain peaceful does not overrule other comments that could be considered incitement.
On the Senate floor, former President Donald Trump’s defense team used a series of quick-cut videos to make a case that the words he spoke to supporters before the storming of the Capitol were just the kinds of words Democrats use all the time to rally their supporters.
A key element of Trump’s defense is that his words at the Jan. 6 rally were protected by the First Amendment. During the Feb. 12 trial session, Trump’s attorneys laid out two questions on the First Amendment.
"First, that the First Amendment to the Constitution applies in this chamber to these impeachment proceedings," said Michael van der Veen, one of Trump’s attorneys. "Second, if it does, do the words spoken by Mr. Trump on Jan. 6 meet the definition of constitutional incitement so as to avoid the protections afforded by the First Amendment? I will explain why the answers to both of these questions must be a resounding yes."
In broad terms, his lawyers in the impeachment trial are arguing that what he said at the Jan. 6 rally was within the norms of political discourse and not a call to violence.
How solid are these arguments, legally speaking? We reached out to 10 experts in First Amendment law, of various ideological backgrounds, to see what they thought of Trump’s free-speech defense. Their opinions differed, but virtually all agreed that an impeachment trial doesn’t have the same standards as a traditional criminal trial. That means senators have a lot of latitude in judging Trump’s words.
A major portion of the trial memo filed by Trump’s defense team focuses on the First Amendment. In that memo, the defense team argued that:
• Trump’s comments were "well within the norms of political speech that is protected by the First Amendment," including elected officials.
• Trump "expressly urged rally participants" to "peacefully and patriotically make your voices heard.’"
• The subsequent violence "does not transform Mr. Trump's protected speech into unprotected speech."
Legal scholars we contacted were divided on how tough a call it is to label what Trump said as incitement.
Among those who see it as a relatively clear example of incitement — and thus not protected by the First Amendment — is Rodney Smolla, dean of the Delaware Law School of Widener University.
Trump’s words on Jan. 6 "must be read against the backdrop of his pattern of falsehood and escalating rhetoric beginning in the summer," Smolla said. "His intention was to incite the crowd to disrupt the constitutional process. That disruption was not intended for some vague future date. It was directed at an immediate march on the Capitol."
Smolla’s view is echoed by more than 100 legal experts who signed an open letter on the question. The letter argued that "any First Amendment defense raised by President Trump’s attorneys would be legally frivolous."
University of Pennsylvania law professor Kermit Roosevelt said the argument for Trump’s words qualifying as incitement gets stronger "if you look at Trump’s reaction to the attack, his history of messages to his supporters, and the fact that many of them apparently did understand him to be urging them to storm the Capitol."
However, other legal experts said it’s not such an easy call.
Howard M. Wasserman, a law professor at Florida International University, said that the standard for incitement under the Supreme Court decision in Brandenburg v. Ohio is that unlawful conduct resulting from speech must be imminent, likely, and intended by the speaker, with license granted for rhetorical hyperbole, metaphor, jokes and overstatement.
That makes the threshold to label something as incitement "very narrow and rarely met," said Nicole Ligon, supervising attorney at Duke University Law School’s First Amendment Clinic.
The current case is a tough call, Wasserman said, "because the statements were so close in time and place to the Capitol and the crowd was so revved up and willing to act on what he said. I happen to believe it was protected, because much of it was overstatement. But some very good, ordinarily speech-protective scholars believe it was not."
Scholars broadly agreed that just using a word like "peacefully" in a speech does not automatically make it protected. The law looks at the big picture.
"If the overall tenor of a statement urges unlawful action in the moment, but the speaker then says, ‘Oh, but don’t do anything illegal,’ the court will look at the overall tenor of his statements as a whole, not individual words in isolation," Wasserman said. "What matters is the overall message communicated."
This is not an unusual challenge for courts to grapple with, said Andrew Koppelman, a Northwestern University law professor. First Amendment law "deals with ambiguity the way the law always deals with ambiguity about intentions: You make a holistic judgment based on all of the evidence," he said. "It happens all the time in criminal trials."
Smolla added that the crowd’s reaction, captured in videos shown by the House impeachment managers, strengthens the argument for incitement by showing the interaction between Trump and the crowd in real time.
"Many in the crowd began shouting phrases like ‘take the Capitol’ while Trump was speaking, demonstrating how they understood his message," Smolla said. "As Trump was himself hearing those chants, he escalated his emotional intensity and rhetoric. This sort of call-and-response interaction supports the case against him, demonstrating that he knew how his words were being understood, and how he reveled in and encouraged that understanding."
We found almost universal agreement that any First Amendment protections Trump might be able to claim in court would be on weaker grounds in a Senate impeachment trial. The two proceedings simply aren’t the same.
"There are good arguments that the Senate can impeach for conduct or speech that couldn’t lead to criminal punishment," said Eugene Volokh, a UCLA law professor.
A president, Koppelman said, has the authority "to reveal to Vladimir Putin the names of every American spy in Russia. He can make a speech proposing an amendment to the Constitution that would authorize extermination camps for African Americans and Jews. He can order the entire Navy to be scuttled in the ocean."
All of these would be impeachable acts even if the president’s right to speak of them is constitutionally protected in court, Koppelman said.
Several legal experts went so far as to say that the fact that Trump is facing a Senate trial makes the First Amendment argument moot.
"For purposes of his potential conviction in the impeachment trial, I see the issue as irrelevant," said Timothy Zick, a law professor at the College of William & Mary. "Presidents and other officials can be impeached and convicted for offenses carried out through speech, including speech that would be protected if an ordinary citizen used the same words."
In fact, says University of California-Davis law professor Ashutosh Bhagwat, impeachment and removal could be said to be tantamount to a human resources matter.
"Impeachment is at heart a personnel action taken against an employee," he said. "And there is a well-established rule that when government employees speak in their capacity as employees, they are subject to discipline regardless of the First Amendment."
Falsehoods are "generally" protected as free speech unless they cause serious harm such as defamation or fraud, Zick said. The case establishing that false statements are protected involved a candidate for local political office who lied about having won the Congressional Medal of Honor, Wasserman said.
That said, he added, "the truth or falsity of speech has nothing to do with incitement. It is incitement to urge the crowd to take imminent lawless action to ‘stop the steal’ — whether there was a ‘steal’ or not."
Most experts agreed that the Trump case is so unusual, and so different from likely future First Amendment cases, that they are not especially worried about an anti-free-speech precedent emerging from a Senate conviction.
"If the theory of the prosecution is that the First Amendment doesn’t limit what counts as impeachable conduct, which I think it is, there should be no effect," Roosevelt said.
UCLA’s Volokh said that any future impact of the Senate verdict will depend on how senators justify their decision.
"If the Senate says, ‘This speech is unprotected incitement, and thus a crime, which is why we’re convicting,’ then that would absolutely be cited as a precedent for punishing a lot of other speech, whether it’s anti-police-brutality speech, anti-abortion speech, speech by militant pro-animal-rights or environmentalist activists, or any other speech to a group in which most members are law-abiding but a few might commit crimes," he said.
By contrast, Volokh said, "if the Senate says, ‘We are convicting Trump and barring him from future office because we think his speech was a dereliction of his duty as president, regardless of whether it would be criminally punishable,’ that would be much more focused on his role as a government official, and wouldn’t set a precedent applicable to speech by ordinary people."
Trump defense team, trial memo, Feb. 8, 2021
New York Times, "Lawyers Call Trump's First Amendment Defense 'Legally Frivolous,'" Feb. 5, 2021
Email interview with Rodney Smolla, dean of the Delaware Law School of Widener University, Feb. 11, 2021
Email interview with Kermit Roosevelt, University of Pennsylvania law professor, Feb. 11, 2021
Email interview with Howard M. Wasserman, law professor at Florida International University, Feb. 11, 2021
Email interview with Douglas Kmiec, professor emeritus at the Pepperdine Caruso School of Law, Feb. 11, 2021
Email interview with Timothy Zick, law professor at the College of William & Mary, Feb. 11, 2021
Email interview with Ashutosh Bhagwat, law professor at the University of California-Davis, Feb. 11, 2021
Email interview with Nicole Ligon, supervising attorney at Duke University's Law School First Amendment Clinic, Feb. 11, 2021
Email interview with Eugene Volokh, UCLA law professor, Feb. 11, 2021
Email interview with Ellen P. Goodman, law professor at Rutgers University, Feb. 11, 2021
Email interview with Andrew Koppelman, Northwestern University law professor, Feb. 11, 2021