Democracy & Government

Incitement and the First Amendment

Incitement and the First Amendment

President Donald Trump speaks to supporters from the Ellipse at the White House in Washington on Wednesday, Jan. 6, 2021, as the Congress prepares to certify the electoral college votes. (Photo By Bill Clark/CQ-Roll Call, Inc via Getty Images)

The distinguished member of the law professoriate Jonathan Turley, writing in The Hill on January 9, makes the extraordinary argument that the second impeachment of Donald Trump would not only “gut the impeachment standard but also free speech.” Turley previously argued that the first impeachment of Trump — charging that Trump withheld sending congressionally approved military aid to Ukraine to pressure that country into launching an investigation of Hunter Biden — was not a “high crime and misdemeanor.” And his present anti-impeachment stance runs true to form.

While Turley testified to Congress twice that “an article of impeachment  does not have to be based on any clear crime,” he thought that Congress should “look to the criminal code to weigh impeachment offenses.” His “free speech” reasoning is that “Trump never actually called for violence or riots.”

Turley is wrong. What he ignores is that Trump’s incendiary words were based on a lie. He claimed to have won the election. That statement was false. He claimed to have won by a landslide. That statement was false. He claimed that the election was tainted with “massive fraud.” That claim was rejected in nearly all of the 62 court cases (61-1) filed by Trump’s lawyers. That claim was rejected by state court judges appointed by Republicans and by federal judges appointed by Trump to whom he offered no proof; only emphatic insistence.

Trump’s words incited to violence and revolution. They were not free speech. In 1919’s Schenck v. United States, Justice Oliver Wendell Holmes stressed that, “[F]ree speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” The Supreme Court effectively overturned Schenck a half century later in Brandenburg v. Ohio, the case relied upon by Turley, but Holmes’ maxim retrains its vitality.

In Brandenburg, the Court enunciated a new legal test. Speech may be prosecuted if it is “directed to inciting or producing imminent lawless action and is likely to produce such action.” Trump’s hour-long tirade on the Ellipse could not fit this standard more neatly. If his words were not directed to inciting lawless action, what else was their purpose? It would not have been possible to reverse the result of the election without force and violence. Can Trump’s lawyers plausibly argue that a peaceful protest was going to overturn an election that Trump claimed he had won by a landslide?

Trump summoned the violent mob of terrorists to Washington. Someone financed and organized their trip, and we can only speculate who this was. Was it Trump’s “Stop the Steal” PAC or someone else? Investigation will discover the truth.

The feral mob brandished white supremacist and nazi flags that they held as they listened to Trump’s words, as Justice Douglas put it in Brandenburg, “brigaded with action” and carried their odious standards into the Capitol building, which Biden called our “citadel of liberty.”

These weren’t protestors exercising their constitutional rights. This was, as Shakespeare put it, insurrection “foul, base and bloody.”

Trump incited the mob to a fever pitch. He told them on December 19 to be in Washington on January 6. “Be there, he tweeted, “it will be wild.” When a loyalist assured him that, “the calvary [sic] is coming,” Trump retweeted: “A Great honor.” The only thing missing was “Charge,” and the trumpet’s bugle call.

On the Ellipse Trump repeated his false claims that: “We won this election, and won it by a landslide.” He said to the mob: “You will never take back our country with weakness.” He exhorted them to “walk down to the Capitol.” Walk down and do what? He left it to the neo-nazis to fill in the blanks. His remarks were underscored by his avatar Rudy Giuliani who told the crowd to engage in “trial by combat.” Then, there was the war cry uttered by Donald Trump, Jr.: “We’re coming for you.” All that was missing were the words of revolution, “Aux armes, citoyens.” And they didn’t need to say that. It was well baked in to the cake. The House has published a draft resolution of impeachment to be finalized this week, and brought to the floor as early as Wednesday. The Resolution charges Trump with “high crimes and misdemeanors against the Government of the United States;” it alleges that Trump “encouraged — and foreseeably resulted in — imminent lawless action at the Capitol.” It states that Trump “incited” a mob unlawfully to breach the Capitol, injure law enforcement personnel, menace Members of Congress and the Vice President, interfere with the Joint Session’s “solemn constitutional duty to certify the election results,” and engage in violent, deadly and seditious acts. In so doing, the impeachment resolution claims that Trump “gravely endangered the security of the United States and institutions of government.” The events of January 6 were undoubtedly the greatest assault on democracy since the Civil War. Blood spilled. Five people died in the melee, including one brave member of the Capitol police. Flags fly at half-staff in his honor and memory.

The events of January 6 were undoubtedly the greatest assault on democracy since the Civil War.

The impeachment is in the seasoned hands of Speaker Nancy Pelosi. According to House majority Whip James Clyburn, Pelosi’s plan may be to vote on the impeachment resolution, but delay sending it to the Senate until after Biden is inaugurated, and his new team is confirmed. Such pressing issues as distribution of Covid vaccine, dealing with the raging pandemic and the wounded economy should not be overshadowed by an impeachment trial. There is precedent for proceeding with an impeachment after the accused has left office. The remedy would be not Trump’s removal but his disqualification from holding any “office of honor, trust or profit under the United States.”

What did the mob hope to accomplish at the Capitol last Wednesday? Many of them spoke of “revolution.” What did Trump hope to accomplish in inciting them to inevitable violence? Some came to kill and terrorize. Authorities found pipe bombs and assault weapons. A group chanted “hang Mike Pence.” And “let’s get Pelosi.” The insurrection all but succeeded in a massacre of members of Congress. Had that happened, would Trump have been able to declare martial law, and suspend certification of the election pending further developments? At this point, no one knows.

One thing is certain. There is a new tone in our political life, mean and violent. Biden said: “This is not who we are.” I wonder as the world watches in horror.

James D. Zirin

James D. Zirin, a lawyer, is the author of the recently published book, “Plaintiff in Chief, -A Portrait of Donald Trump in 3500 Lawsuits.”