Donald Trump is the only American president to be impeached twice. This time, he stands accused in a single article of impeachment of "incitement of insurrection" for delivering an incendiaryspeechon January 6 to an angry mob of supporters, sparking them to storm the U.S. Capitol building to prevent the certification of Joe Biden's Electoral College victory.
Trump will now be tried in the Senate. There, he will be given the opportunity to defend his shameless rhetoric and behavior. Among other claims, he willlikely mount a defense under the First Amendment, and argue that his speech was constitutionally protected by the Supreme Court's landmark 1969 decision inBrandenburg v. Ohio.
The Senate can be expected to consider Trump's position carefully and fully. But at the end of the proceeding, no matter who leads his legal team, any impeachment defense based onBrandenburgand the First Amendment will beto put it in the vernacularcomplete and utter garbage.
Clarence Brandenburgwas a small-time bigot who owned a television repair shop in theVillage of Arlington Heights, a tiny hamlet roughly 11 miles north of Cincinnati, Ohio. He was also a Ku Klux Klan leader.
OnJune 28, 1964,at Brandenburg's invitation, a reporter and a cameraperson from a Cincinnati TV station attended a Klan rally held on a nearby farm. Footage from the rally showed 12 hooded figures gathered around a burning cross,shoutingvarious epithets, including: "This is what we are going to do to the niggers," "Send the Jews back to Israel," "Save America," "Bury the niggers," "Give us our state [sic] rights," and "Freedom for the whites."
Brandenburg was also filmed,saying:
"The Klan has more members in the State of Ohio than does any other organization. We're not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continues [sic] to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] taken."
"We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you."
Brandenburg was subsequently arrested and convicted of violating Ohio's criminal syndicalism law, which made it a crime to advocate violence as a means of achieving political reform. He was fined and sentenced to prison.
Five years later, the Supreme Court reversed his conviction. In its decision, the court articulated a new test for determining the constitutionality of subversive speech, holding that the First Amendment protects advocating the use of force or lawbreaking "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
As should be obvious to anyone this side of Rudy Giuliani, Brandenburg's prosecution was entirely different from the incitement case against Trump, both on the facts and the law.
Unlike Trump, Brandenburg never threatened imminent action of any kind. His diatribes were racist and repugnant, but also the stuff of addlebrained, semi-grammatical fantasy. Brandenburg had no minions at his command, let alone the 400,000 he had conjured in his speech. He posed no immediate danger to anyone.
Trump, by contrast, has millions of dedicated supporters at his disposal. In thefirst presidential debatein September, he told the Proud Boys to "stand back, and stand by."Starting in December, he began to urge his supporters to come to Washington on January 6, tweeting on December 19 that there would be a "[b]ig protest," and inviting them to "Be there, will be wild!" Referring to the protest again at a rally in Georgia on January 4, he pledged, "We're going to take what they did to us on November 3. We're going to take it back."
The MAGA zealots, white nationalists, and neofascists who showed up to hear Trump on January 6 were ready, willing and able to do his bidding. They were treated to arambling speech filled with violent imagery, as the sitting president of the United States urged his supporters to march down Pennsylvania Avenue to the Capitol and to "fight like hell" to "stop the steal" of the election. He even falsely promised to march alongside them, proclaiming, "I'll be there with you."
While Trump never mentioned specific acts of violence and only once, in a single brief mention, did he tell his supporters "to peacefully make your voices heard," the speech as a whole was a call to imminent lawless action, as many in the mob construed it. Boththe Washington Postandthe New York Timeshave reported that some of the Capitol marauders actually thought they were acting on direct orders from Trump.
In inciting the mob, Trump arguably violated two federal statutes that prohibitinsurrection and rebellion against the United Statesas well asseditious conspiracy.
Whether or not Trump is ever criminally prosecuted, he without question committed an impeachable offense. Thehistory of American impeachmentclearly establishes that such offenses may encompass both criminal and noncriminal conduct. According to theHouse of Representatives' procedural practice manual, "Less than one-third of all the articles [of impeachment] the House has adopted have explicitly charged the violation of a criminal statute or used the word 'criminal' or 'crime' to describe the conduct alleged."
InFederalist Paper No. 65, Alexander Hamilton described impeachable offenses as "those which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." [emphasis in original]
The First Amendment cannot be invoked to save Trump from an abuse of power so egregious and deadly. To do so would be to turn the amendment on its head. As Joshua Matz and Norm Eisen argued in aJanuary 13 op-ed in Politico, "the Free Speech Clause exists to protect private citizens from the government, not to protect government officials from accountability for their own abusive statements."
It's now up to the Senate to sit in judgment on Trump's defilement of the Constitution. To borrow a line from the Broadway musicalHamilton, each and every senator should know, "History has its eyes on you."
Follow this link:
The First Amendment won't save Trump - Salon
- Clarence Thomas plays a poor devils advocate in floating First Amendment limits for tech companies - TechCrunch - April 6th, 2021
- First Circuit Upholds First Amendment Right to Secretly Audio Record the Police - EFF - April 6th, 2021
- Justice Clarence Thomas Takes Aim At Tech And Its Power 'To Cut Off Speech' - NPR - April 6th, 2021
- "Fake News" and the First Amendment - University of Dayton - News Home - April 6th, 2021
- Bar owners went beyond First Amendment rights with their 'raised voices, interrupting,' AG argues - Cambridge Day - April 6th, 2021
- Clarence Thomas blasts Section 230, wants common-carrier rules on Twitter - Ars Technica - April 6th, 2021
- Drones (and the First Amendment) take on regulatory overreach in North Carolina - Chatham Journal Weekly - April 6th, 2021
- The university response to offensive speech often reflects a feeble commitment to diversity, equity and inclusion - Poynter - April 6th, 2021
- Online event examines the relationship between free speech and firearms - Nevada Today - April 6th, 2021
- Official Website for the Governor of Maryland - maryland.gov - April 6th, 2021
- Opinion: Remembering the Core Four Pillars of Journalism Amid a Pandemic - Times of San Diego - April 6th, 2021
- Tenth Circuit Misses Opportunity to Affirm the First Amendment Right to Record the Police - EFF - April 2nd, 2021
- Is There a First Amendment Right to Tweet? - JSTOR Daily - April 2nd, 2021
- Is blocking a constituent on Twitter against the First Amendment? This DC resident thinks so | The Hill is Home - The Hillishome - April 2nd, 2021
- The 6th Circuit Reached the Right Conclusion on Preferred Pronouns. Other Courts Should Follow Suit. - Heritage.org - April 2nd, 2021
- Why It's So Hard to Prosecute White Extremists - The Marshall Project - April 2nd, 2021
- Loeb School announces free spring classes and writing workshops - The Union Leader - April 2nd, 2021
- Parler Forced To Explain The First Amendment To Its Users After They Complain About Parler Turning Over Info To The FBI - Techdirt - March 31st, 2021
- Terrorism and Other Dangerous Online Content: Exporting the First Amendment? - Just Security - March 31st, 2021
- The First Amendment: Rarely Popular, Always Necessary - The Dispatch - March 31st, 2021
- The First Amendment: What It Is & What It Isn't - WSHU - March 31st, 2021
- Drawing a Line Between Internet Trolls and the First Amendment - Government Technology - March 31st, 2021
- BREAKING: ACLU Representatives Join Unprecedented Podcast to Discuss HUGE Ramifications of Creasy/Lindenbaum/TCPA on First Amendment Rights - Lexology - March 31st, 2021
- Courts: Bystanders have right to record police under the First Amendment - Newsday - March 31st, 2021
- RCFP urges court to order Texas AG to stop investigating Twitter - Reporters Committee for Freedom of the Press - March 31st, 2021
- Pronouns in the University Classroom & the First Amendment - Reason - March 31st, 2021
- Matt Taibbi: A Biden appointee's troubling views on the First Amendment - National Post - March 31st, 2021
- Pronouns and the Philosophy Professor - The Wall Street Journal - March 31st, 2021
- Letters to the editor | Opinion | journalpatriot.com - Wilkes Journal Patriot - March 31st, 2021
- Jane Briggs-Bunting, who championed the 1st Amendment, dies at 70 - Detroit Free Press - March 31st, 2021
- Was a Trump critic's 1st Amendment violated by Yale? We're about to find out. - MSNBC - March 31st, 2021
- The Cyberlaw Podcast: Can Editorial Middleware Cut the Power of the Big Platforms? - Lawfare - March 31st, 2021
- Judge In Chauvin Trial Rules That Underage Witnesses Can Testify - NPR - March 31st, 2021
- An Alternative to Impeachment: New Bill Helps Enforce Accountability for Capitol Riots - Just Security - March 31st, 2021
- Rep. Walsh refuses to vote as House approves firearms ban at Capitol grounds - The Daily World - March 31st, 2021
- Sixth Circuit Rules That Religious Freedom Entitles Professor To Debate Students Gender Identity In Class - Above the Law - March 31st, 2021
- Attorney: Owosso Barber Won't Pay $9000 In Fines Following 'Operation Haircut' Protest - WKAR - March 31st, 2021
- Court: University of Iowa officials can be held liable for First Amendment violations - The Gazette - March 23rd, 2021
- 'Clear and gross violation of First Amendment freedom': Andy Harris faults government over COVID battle with church - KPVI News 6 - March 23rd, 2021
- Appeals Court Judge Attacks Fundamental Principle Of 1st Amendment Law, Because He Thinks The Media Likes Democrats Too Much - Techdirt - March 23rd, 2021
- Roundtable debate discusses UPD and First Amendment rights - Binghamton University Pipe Dream - March 21st, 2021
- How the meat lobby is waging war on the First Amendment - Crain's Chicago Business - March 16th, 2021
- Requirements are an assault on the First Amendment - Antelope Valley Press - March 16th, 2021
- Biden Justice Department inherits tricky tech, media law issues - Reporters Committee for Freedom of the Press - March 16th, 2021
- Letter: Why the left wants the First Amendment modified - Daily Journal - March 16th, 2021
- Opinion | Iowa protest bill stifles free speech and assembly through harsh penalties - UI The Daily Iowan - March 16th, 2021
- Sunshine Week and a Show Me State statesman - The Highland County Press - March 16th, 2021
- Twitter Sued Texas AG Ken Paxton over First Amendment Concerns - Dallas Observer - March 16th, 2021
- Ammon Bundy arrested after missing trial on trespass charge - ABC News - March 16th, 2021
- Santa Monica Lawmakers Withdraw Law That Would Have Restricted Certain Forms of Protest - SM Mirror - Santa Monica Mirror - March 16th, 2021
- Control over online speech should be in the hands of users, not the government - Bucks County Courier Times - March 16th, 2021
- Court clarifies protections for testifying workers, but rules they can still be demoted - coloradopolitics.com - March 16th, 2021
- Who Gets First Amendment Protections These Days, Anyway? - Slate - March 7th, 2021
- Let's keep Tennessee's knee off the First Amendment - Johnson City Press (subscription) - March 7th, 2021
- Eyman Commentary: I'm Committed to Appealing Restrictions on the First Amendment - Centralia Chronicle - March 7th, 2021
- After settlement, freedom of speech, yellow sign and First Amendment 'stand tall in Brookfield' - Worcester Telegram - March 7th, 2021
- Judge Andrew P. Napolitano: Silencing free speech -- when the First Amendment is not enforced, this can happen - Fox News - March 7th, 2021
- Editorial: The public square doesn't always get First Amendment protection - The Bulletin - March 7th, 2021
- Lets keep Tennessees knee off the First Amendment | Opinion - Daily News Journal - March 7th, 2021
- Keep Tennessee's knee off the First Amendment - Murfreesboro Post - March 7th, 2021
- Impeachment and the First Amendment, Revisited Reason.com - Reason - March 7th, 2021
- Federal Court Affirms Travelers Have A First Amendment Right To Record TSA Screeners - Techdirt - March 7th, 2021
- Mountlake Terrace High School again honored with First Amendment Press Freedom Award - MLT News - March 7th, 2021
- Death threats and rule changes cause some to fear for the First Amendment in New Port Richey - WMNF - WMNF - March 7th, 2021
- Student Editor Sues University Over Alleged First Amendment Violation - The College Post - March 7th, 2021
- Do we not understand the 1st amendment? - The Wahkiakum County Eagle - March 7th, 2021
- Gov. Greg Abbott touts bill to stop Twitter, Facebook from banning Texans - The Texas Tribune - March 7th, 2021
- Commentary: I'm committed to appealing these ridiculous restrictions on the First Amendment - The Reflector - March 7th, 2021
- Mayor Frey tells WCCO radio that the city is ready for trial - 1033 Amp Radio - March 7th, 2021
- Florida Reporter thinks Trustee needs permission to speak; received Emancipation Proclamation and First Amendment in response to FOIA request -... - March 7th, 2021
- Trump Impeachment Trial And The 1st Amendment Debate : Trump Impeachment Trial: Live Updates - NPR - February 14th, 2021
- Trumps claim impeachment violates the 1st Amendment and Brandenburg v. Ohio, explained - Vox.com - February 14th, 2021
- WATCH: Trump not protected by First Amendment for inciting insurrection, Rep. Raskin says - PBS NewsHour - February 14th, 2021
- The Insurrection, Police Accountability, and the First Amendment - brennancenter.org - February 14th, 2021
- Opinion: Guns shouldn't trump the First Amendment - The Missouri Times - February 14th, 2021
- Comment: Trump's lawyers have it wrong on First Amendment, too | HeraldNet.com - The Daily Herald - February 14th, 2021
- Highlights of Day 4 of the Trump Impeachment Trial - The New York Times - February 14th, 2021
- The Atlantic The Great Free-Speech Reversal - The Atlantic - January 29th, 2021
- First Ammendment Rights What Is the First Ammendment? - Reader's Digest - January 29th, 2021
- [OPINION] Does the First Amendment apply to what you post on social media? - Asian Journal News - January 29th, 2021