The defense in Donald Trump’s second impeachment rested in large part on the assertion that his fiery words to protestors on January 6 were protected by the First Amendment. Republican senators used free speech—along with other pretexts—to ignore Trump’s high crimes and misdemeanors. But they were wrong. Trump’s incitement was not protected speech. His words posed an unambiguous clear and present danger.
The relevant part of the First Amendment states, “Congress shall make no law. . . abridging the freedom of speech.” But “no” in the Constitution doesn’t mean “no.” Obscenity, fighting words, and threats have never been protected speech. Criminal conspiracy is not protected. Neither is incitement to riot. Freedom of speech is never absolute. As Justice Oliver Wendell Holmes put it in the Supreme Court’s first free-speech decision, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” (Schenck v. United States, 1919). In affirming the convictions of two World War I draft protestors, the Court ruled that speech that poses “a clear and present danger” to the nation can’t hide behind the First Amendment.
In their impeachment defense brief, Trump’s lawyers invoked two significant First Amendment decisions: Watts v. United States (1969), and Brandenburg v. Ohio (1969). That was sloppy. Neither case is relevant to Trump’s incitement.
Robert Watts was a high school student who participated in a teach-in against the Vietnam War. He told a small group of ten or fifteen people discussing the draft, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” Watts wasn’t about to assassinate anyone—people laughed as he pantomimed aiming an imaginary rifle at an imaginary Lyndon Johnson. But police were watching. They arrested Watts, and he was convicted for threatening to kill the president. The Supreme Court reversed that conviction because Watts’s words, though hyperbolic and perhaps ill-chosen, posed no clear and present danger to the president. Instead, they were protected political speech.
Then there’s the case of Clarence Brandenburg. Brandenburg was a member of the Ku Klux Klan. He invited a TV reporter to film a Klan “rally” of a dozen men in sheets in a remote farm field, where they burned a cross and made threats against Jews and Blacks. But the Supreme Court reversed Brandenburg’s conviction because his words, though hateful, were spoken to a small group in a remote location, and had no immediate destructive impact. In Brandenburg the Court established a new way to measure clear and present danger: speech likely to produce “imminent lawless action” has no First Amendment protection.
The context of Trump’s words is very different from the settings in which Watts and Brandenburg spoke. Their speech was protected because under the circumstances, their small audiences couldn't act on the speakers' words. In contrast, Trump spoke to a crowd of thousands who were ready for action. Many of the listeners, by their own testimony, were waiting for his command, eager for him to unleash them on an unprotected Capitol.
Trump spoke for more than an hour at his long-planned rally, a rally he had promised would be “wild.” He primed his audience for months by repeating the lie that the election had been stolen from him, and from them. His rhetoric was violent. Trump used the word fight more than twenty times on January 6 as he urged his listeners to march down Pennsylvania Avenue to the Capitol to “stop the steal” and take back their country. The audience took him at his word: they marched and they fought. They had come prepared to do just that, many wearing military-style gear and carrying weapons, although it is illegal to carry firearms without a permit in the District of Columbia. After listening to Trump, hundreds of them broke into the Capitol and charged through the House and Senate hallways, fighting with police, tracking down legislators, and chanting “Hang Mike Pence.” It was textbook imminent lawless action.
There are two elements required to support a charge of incitement: the incendiary words and the speaker’s intent to wreak havoc. Trump’s lawyers claimed his speech was hyperbolic, not to be taken literally. And he didn’t mean for anyone to break the law. Senator minority leader Mitch McConnell disagreed. He thought Trump’s words led directly to the Capitol riot. McConnell explained that he voted to acquit Trump because he believed that former presidents can’t be impeached—though it was McConnell himself who had prevented the impeachment while Trump still held office. But in McConnell’s view, Trump was culpable.
How do we measure a speaker’s intent? There’s an objective test: would a reasonable person, hearing the words, understand them as incitement? Or would they excuse the speaker as simply passionate, or even just kidding? But an objective, reasonable person may not understand the context well enough to assess the speaker’s state of mind. So there’s a more subjective test of intent as well. A speaker may be guilty of incitement if they knew that their words were likely to produce lawless action but said them anyway, either because the speaker wanted that lawless action to occur, or they simply didn’t care that their words would lead to a riot.
There’s lots of evidence revealing Trump’s intent, or state of mind. There's his long record of violent rhetoric, both spoken and on Twitter (before the platform banned him). He never seemed to care when his words caused chaos or damage to individuals, to the stock market, to America’s allies around the world, even to Americans trying to cope with the pandemic. He told his audiences to rough up protesters and to lock up his political opponents. He suggested drinking bleach or trying unproven drugs to fight the corona virus, and some people followed those instructions. And for months he had promulgated the “big lie,” urging his followers to reclaim an election he insisted had been stolen from him. Finally, he called on his supporters to rally in Washington on January 6 to “stop the steal.”
But after promising rally-goers that he would accompany them to the Capitol, Trump instead went back to the White House. There his reported actions further revealed his state of mind. He was said to be delighted watching the Capitol riot on TV. He took no action to stop his followers, despite pleas from advisors that he intervene. He ignored warnings of danger and pleas for help from political allies like Sen. Tommy Tuberville and House minority leader Kevin McCarthy, who were trapped in the Capitol. And during the riot he even encouraged his mob to go after then-Vice President Mike Pence, knowing that Pence was in danger. Hours later, as police began to get the riot under control, Trump finally posted a video asking rioters to go home. But even then he repeated his charges of a stolen election and told the rioters that he loved them. In the days that followed, after more than 200 arrests, a number of the rioters defended their actions by saying that they were only following Trump’s orders. All this constitutes proof of intent.
As the Supreme Court acknowledged in Watts, political speech is raw, rowdy, belligerent, in your face. So long as it remains speech, it enjoys First Amendment protection. But once accompanied by lawless action, it’s no longer protected. And in any case, freedom to speak doesn’t protect speakers from the consequences of their speech. When Trump’s words produced immediate, lawless action, when his words were directly followed by rampage, unlawful entry, property damage, physical injury, and death, there is no way to give those words First Amendment cover.