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As we approach the Senate trial on the impeachment of former President Donald Trump for incitement of insurrection against the Republic he swore to protect on Feb. 9, his lawyers and other defenders have made the astonishing claim that convicting him would somehow violate freedom of speech. Judicial Watchs Tom Fitton even asserted that convicting Trump would be devastating to the First Amendment because it would be a green light to remove others that engage in core political speech that would be criminalized if the Left doesnt like it.

As a constitutional lawyer who has defended the First Amendment for almost forty years, I agree with lawyer Chris Truax that these free speech claims are absurd. First, the First Amendment protects members of the public from having their speech suppressed or punished by the government, and does not shield government officials for accountability for their actions, even if they involve speech. A private citizen would have the First Amendment right to proclaim loyalty to Russia or China or to advocate the secession of Texas from the union. Does anyone seriously contend that free speech allows a U.S. president to violate his oath of office and do the same, and also escape accountability through impeachment for such treasonous acts? Apparently, Trump and his supporters do.

As the House impeachment managers have pointed out, moreover, even if Trumps actions were treated like those of a private citizen, and even if the First Amendment applied to Congressional efforts to hold a president accountable as it does to a criminal prosecution, the free speech defense would still fail. The Supreme Court ruled more than 50 years ago that the First Amendment does not protect speech when it is directed to inciting or producing imminent lawless action and is likely to do so. Trumps incendiary remarks just before the Jan. 6 violent insurrection at the Capitol, when he exhorted his followers to go to the Capitol and fight like hell, particularly when combined with evidence of his intent like reports that he was delighted as the riots were happening, could well be enough to warrant even a criminal conviction of Trump by a court. They are clearly enough to justify a conviction on impeachment in the Senate.

I have always believed that the First Amendment is first in our Constitution because, in important ways, free speech and the other rights it safeguards are crucial to protect our democracy. The attempt of a disgraced ex-president and his seditionist collaborators to try to hide behind free speech, as well as similar recent far right efforts to use freedom of speech to justify the violent actions at the Capitol on Jan. 6, truly dishonors our First Amendment.

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Free Speech Arguments Against Trump's Impeachment Dishonor The First Amendment - People For the American Way

[This post was co-authored by Josh Blackman and Seth Barrett Tillman]

On Tuesday, February 2, 2021, the House of Representatives' Managers filed an 80-page trial memorandum or brief for the impending Senate impeachment trial. The Managers discussion of the First Amendment spans about three pages (pp. 45-48). And the brief cites several posts from Volokh Conspiracy co-bloggers Jonathan Adler, Ilya Somin, and Keith Whittington. These posts responded to our prior Volokh Conspiracy posts. We have five general responses to the position put forward in the trial memorandum.

First, the trial memorandum states that "the First Amendment does not apply at all to an impeachment proceeding." We think it a mistake to view impeachment proceedings in this binary fashion: that the First Amendment does, or does not apply to an impeachment proceeding. The phrase "high Crimes and Misdemeanors" in the Impeachment Clause (1788) does not definitively resolve how other provisions of the Constitutionincluding the not-yet ratified First Amendment (1791)would apply to impeachment proceedings. Moreover, in our February 3 post, we wrote:

The original meaning of the phrase "high Crimes and Misdemeanors" in the Constitution is of uncertain scope. And the materials we have from the Philadelphia Convention, the state conventions, and the public ratification debates do not provide clear answers to the precise question we face today. Likewise, past impeachments provide inconclusive, and at times, conflicting precedents.

As a result, each member of Congress, who takes an oath to the Constitution, acting in good faith, may decide whether, and how the First Amendment should apply in impeachment proceedings. Accordingly, we think it a mistake to make an unqualified statement that "the First Amendment does not apply at all to an impeachment proceeding." (emphasis added).

Our position that the First Amendment applies in an impeachment proceeding is not novel. In 1868, during the Johnson impeachment, several Senators contended that an article of impeachment ran afoul of the First Amendment. In our January 17 post, we explained the relevance of these statements:

We do not here, nor did we in our prior post, cite these senators as holding the only view about the scope of the President's free speech rights in the impeachment context. We acknowledged that some senators who voted to convict, as well as the prosecuting House managers, rejected this free speech argument. Our goal was not to say, and we did not say, that the Johnson trial established the correct position. Rather, we raised this history to show that the issue was, and remains, fairly contestable. In 1868, there was a difference of opinion about what speech rights the President has. That same debate exists today. This issue is not clear. It is not settled. There is no controlling on-point judicial precedent. There is some on-point discussion from a prior presidential impeachment. And those debates from the Johnson Senate trial provide some support for our position. But we do not think this issue has been resolved or liquidated.

We take it as a starting point that some Senators can decide in good faith, based on their Constitutional oath, that the President can raise the First Amendment as a defense in the Senate trial. The question then becomes, what theory of the First Amendment is available to the President.

The fact that the House spends several pages discussing Supreme Court caselaw suggests that the Managers are not willing to rest on the absolute position that the First Amendment is inapplicable. This argument, we think, represents a tacit recognition that Senators, in good faith, could find that the President may raise a First Amendment defense.

Second, in the alternative, the House trial memorandum argues that the First Amendment ought to apply differently to the President. Specifically, in a footnote, the House argues that the President stands in the same position as a civil servant:

Indeed, impeachment is fundamentally an employment action against a public official, and thus the First Amendment would not insulate the President's statements from discipline even if it applied, because the government's interest in orderly operation would outweigh the President's speech interests. See Garcetti v. Ceballos, 547 U.S. 410 (2006); Connick v. Meyers, 461 U.S. 138 (1983); Pickering v. Board of Education, 391 U.S. 563 (1968).

We think the Managers erred in analogizing Congress' power to remove an elected President to an employment action involving civil servants. Many courts have held that First Amendment challenges by elected officials are not governed by Pickering. We say many courts. Not all courtsas with so many issues, authority is divided. Scholarly articles have also touched on this question. For example, Professor Katherine Shaw opined on this issue in her Impeachable Speech. In that article, she stated:

Outside of the impeachment context, there are of course First Amendment cases that grapple with government officials as speakers. The Pickering/Garcetti line of cases attends to the speech rights of government employees, creating a standard that is understood to grant public employees very limited First Amendment rights when they speak pursuant to their official duties. But it is not clear whether or how the reasoning in these cases would have any application to the unique figure of the president, who is clearly not a government "employee" in the same sense as the officials at issue in the [Supreme] Court's cases, and where the "sanction" of impeachment is surely distinct from other sorts of professional consequences public employees might face over the content of their speech.

Other precedent could support the argument that a president's speech is in some sense protected from sanction by the First Amendment. Perhaps most relevant here is Bond v. Floyd, in which the Supreme Court held that the First Amendment prevented the Georgia legislature from refusing to seat Julian Bond, based on speeches he had made criticizing the Vietnam War and the federal government generally. A president might invoke this case to support the argument that a Congress pursuing impeachment based in part on speech is engaging in a form of impermissible viewpoint discrimination.

Similarly, we wrote in our January 17 post:

Pickering and Garcetti were cases about civil servants. These precedents do not furnish good analogies to justify removing elected officials [such as the President] for purported speech-related wrongs.

We think Professor Shaw's position has merit. Professor Shaw also cites the Supreme Court's First-Amendment-friendly Brandenburg test, and suggests it is relevant to evaluating the constitutionality or lawfulness of impeachments involving speech-related allegations of wrongdoing.

Third, the House Manager's trial memorandum seems to recognize that the President does not stand in the same position as a civil servant. The trial memorandum instead analogizes the President to senior appointed officers:

As the leader of the Nation, the President occupies a position of unique power. And the Supreme Court has made clear that the First Amendment does not shield public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important government interests.

We agree that "public officials who occupy sensitive policymaking positions" stand in a different position than civil servants. And we agree that certain senior appointed federal officers who make policy have reduced Free Speech rights, even below the Pickering standard. We previously wrote that when senior appointed federal officers "speak, their message is more readily mis-identified as that of the President they serve." As a result, the appointing authority "needs more control over them."

The trial memorandum, at footnote 203, cited two cases that reflect this dynamic. In Branti v. Finkel (1980), the Rockland County Public Defendera Democratwho was appointed by the County Legislature, planned or intended to discharge two assistant public defenders because they were Republicans. Aaron Finkel and Alan Tabakman had worked for the office for several years, and served at the "pleasure" of the County Public Defender. Ultimately, the Supreme Court ruled for Finkel and Tabakman based on the First Amendment. But the Court's decision did not rely on Pickering. These at-will public defenders were not analogous to civil servants. Likewise, Elrod v. Burns (1976) involved "non-civil-service employees" who were "not covered by any statute, ordinance, or regulation protecting them from arbitrary discharge." Here too, the Supreme Court did not rely on Pickering.

Yet, neither of these cases concerns the status of an elected official. We do not think the President can be analogized to civil servants. And we do not think the President can be analogized to senior appointed federal officers with policy-making responsibilities.

In our prior post, we explained why the analogy in the Manager's trial memorandum does not hold:

By contrast, the President is not a cabinet member, who works for a superiorother than the People who act through elections. Nor is the President a GS-15 who can be disciplined for speaking at a political rally. Treating the President as an appointed officer or a civil servant would eliminate the President's ability to act like a politician and party leader. With good reason, the elected President is not subject to the Hatch Act. He is expected to engage in overtly partisan speech. In our view, the President has more expansive free speech rights than civil servants, who have broader free speech rights than at-will executive-branch officers. There is a hierarchy for speech rights for these different positions. It is not the case that principal officers have more rights than inferior officers who have more rights than civil servants. Government officials and officers are not an undifferentiated mass, with identical First Amendment rights. Nor do these rights track the traditional status of positions in the government. Instead, we suggest that elected officials have the widest scope of free speech rights, civil servants enjoy some free speech rights which are subject to certain limitations, and that at-will presidential appointees enjoy the least.

Fourth, the trial memorandum asserts that the House and Senate stand as the superior over the President, in the same fashion that the President stands as the superior over a cabinet member.

Thus, just as a President may legitimately demand the resignation of a Cabinet Secretary who publicly disagrees with him on a matter of policy (which President Trump did repeatedly), the public's elected representatives may disqualify the President from federal office when they recognize that his public statements constitute a violation of his oath of office and a high crime against the constitutional order.

Indeed, in a footnote discussed earlier, the House trial memorandum describes "impeachment [as] fundamentally an employment action against a public official." These statements reaffirm the House's position that Congress is the President's superior. Here, we reach a central point: what is the precise role that Congress plays with respect to impeachment? Is Congress, by virtue of being elected, the superior over the President? We submit the answer is no. It is true that the President draws a salary, as do appointed officers and civil servants. But as a general matter, the President is not considered as an employee, either at-will or subject to some sort of civil service protection. A member of Congress draws salary and can be "removed" by a super-majority of her house. But that does not make a member of Congress an "employee" in the sense that term is commonly used. Professor Shaw, quoted above, expressly rejects analogizing the President to an "employee"the position asserted in the Manager's trial memorandum.

Moreover, we previously wrote:

We reject this analogy between the President and civil servants. Congress is not the superior to the inferior President. They are both elected. They both make policy, within the confines of complying with the legal system. They are both authorized in different ways to control the government-as-employer. As a general matter, Congress does not stand in the role of the employer vis-a-vis the President. If the President has an employer, it is the People, not Congress through impeachment. And that role exists throughout the entirety of a President's four-year term, and not only during the short election season.

Between elections, Congress does not serve as a stand-in for the People. The impeachment process is not akin to a vote of no-confidence, a common procedure in parliamentary governments. The President will stand for election in four years, and the people can decide whether he warrants re-election. Rather, the Constitution empowers Congress to remove the President if specific legal standards are satisfied. The President is not an at-will employee.

Fifth, the Manager's trial court brief considers a final argument in the alternative: even if Brandenburg is the relevant standard, the President's speech is still not protected:

Yet even if President Trump's acts while occupying our highest office were treated like the acts of a private citizen, and even if the First Amendment somehow limited Congress's power to respond to presidential abuses, a First Amendment defense would still fail. Speech is not protected where it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Given the tense, angry, and armed mob before him, President Trump's speechin which he stated "you'll never take back our country with weakness," proclaimed that "[y]ou have to show strength," and exhorted his supporters to "go to the Capitol" and "fight like Hell" immediately before they stormed the Capitolplainly satisfies that standard.

Here, we will refer back to Eugene Volokh's post. Under Brandenburg's imminence requirement, Trump's January 6 speech would be protected speech. The trial memorandum does not even try to show that the January 6 speech would lead to "imminent lawless action." The memorandum ends with a conclusory statement that Trump's speech "plainly satisfies that standard." Were this an indictment brought in court, we doubt that it would result in a conviction.

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dl Ollscoil Mh Nuad).]

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The First Amendment Arguments in the House of Representatives' Managers' Trial Memorandum - Reason

Image courtesy Freedom Forum

By TONY MAURO

FormerPresident Donald Trumpsfiery Jan. 6 speech, made just before the U.S. Capitol riot began, led to his impeachment by the House of Representatives on a charge of incitement of insurrection.

But as the Senate prepares for Trumps trial to resume Feb. 9, Harvard law professorAlan Dershowitzand other scholars have pointed to a 1969 Supreme Court decision that, in their view, gives First Amendment protection to speakers who urge listeners to use force in certain circumstances. The decision strictly defines the legal concept of incitement. It iscertain to be invoked as a reason Trump could avoid conviction, assuming the trial touches on the riot, rather than other issues.

The case, titledBrandenburg v. Ohio, struck down a law that was used to prosecuteClarence Brandenburg, a Ku Klux Klan leader. Speaking at a rally in rural Ohio in 1964, Brandenburg said revengeance [sic] was needed against government institutions for suppressing the Caucasian race. Interestingly, he said that the revengeance would be wrought by marching on Congress July the Fourth, four hundred thousand strong.

The high court ruled that state laws making it a crime merely to advocate the use of violence violate the First Amendment. Only when the advocacy is aimed at inciting imminent lawless action, and is likely to succeed, may government prohibit it, the court stated unanimously.

Scholars who disagree that the Brandenburg ruling protects Trump argue he unequivocally incited imminent lawless action through comments he made shortly before the rally including, Youll never take back our country with weakness. You have to show strength and you have to be strong, and If you dont fight like hell, youre not going to have a country anymore. Harvard Law SchoolsEiner Elhaugeasserted in aWashington Postcolumn, Trumps conduct clearly meets the legal standard that Brandenburg set.

As the sides invoke the ruling to support their positions in the coming days, here is a primer on Brandenburg v. Ohio.

DATE: Decided June 9, 1969

IMPACT: The Brandenburg decision is seen as one of the most expansive interpretations of the First Amendment ever announced by the Supreme Court. The lateNew York TimescolumnistAnthony Lewiswrote that Brandenburg gave the greatest protection to what could be called subversive speech that it has ever had in the United States, and almost certainly greater than such speech has in any other country.

BACKGROUND: Following the assassination ofPresident William McKinleyin 1901 by an anarchist and the start of the communist movement in 1917, states began passing anti-sedition laws and so-called criminal syndicalism statutes. These laws, passed in 33 states, prohibited teaching or advocating the use of violence or crime to bring about political or economic change. The motivation behind the syndicalism laws in most cases was to discourage the spread of socialist or communist anti-capitalist views.

The Brandenburg case concerned not a communist, but a Klan leader. With the cameras of a local TV crew rolling, the red-hooded Clarence Brandenburg spoke to a Klan rally held at a farm in Hamilton County, Ohio, and made a threat laced with racist slurs: Were not a revengent organization, but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, its possible that there might have to be some revengeance. His pledge to march on Congress July the Fourth could not fit the definition of imminent lawless action.

Based on his speech, Brandenburg was convicted for violating the states criminal syndicalism law, fined $1,000 and sentenced to one to 10 years in prison. He appealed, challenging the law as a violation of his free speech rights. The Supreme Court of Ohio dismissed the appeal, setting the stage for U.S. Supreme Court review.

VOTE: Brandenburg won. The eight sitting justices at the time wereChief Justice Earl WarrenandJustices Hugo Black, William O. Douglas, John M. Harlan, William J. Brennan Jr., Potter Stewart, Byron WhiteandThurgood Marshall. The ruling was issued unsigned, rather than under the name of a specific justice. There were no dissents.

. . .

Tony Mauro is contributing U.S. Supreme Court correspondent for the National Law Journal and ALM Media and a special correspondent for the Freedom Forum. This article includes excerpts from Mauros 2006 book, Illustrated Great Decisions of the Supreme Court, Second Edition.

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FIRST FIVE: A First Amendment case that may be key to Trump's Senate trial - Salina Post

Rep. Marjorie Taylor Greene was stripped of committee assignments because of her pre-election-campaign statements embracing QAnon, 9/11 trutherism, claims that school shootings were faked, Rothschild space lasers, and executing Democrats. (She has apparently renounced most or all of the claims since.) Does that violate the First Amendment?

I think the answer is "no": Committee appointments are a political process, and are subject to political decisions, including ones based on a person's constitutionally protected speech. Just as the President is entitled to nominate cabinet members and judges based on past speech he likesand reject possible nominees based on past speech he dislikesso Congress can dole out committee positions the same way.

We see this in the longstanding practice of giving members of the majority party more seats on committees. Applied to low-level government employees, such partisan hiring decisions would violate the First Amendment. But when it comes to high-level executive decisionmakers, they are generally just fine, and likewise for Congress. You have a First Amendment right to belong to the minority party, but that means you're less likely to get the committee assignment you want (since your party has fewer seats on the committees).

Likewise, my sense is that party loyalists are more likely to get the best spots. Again, opposing the party leadership is constitutionally protected against criminal punishment or civil liability, but not against political decisions such as appointment to one or another committee (and, again, same with high-level Executive Branch appointments or judicial appointments). And it's true as to other speech protected by the First Amendment, recent or past.

There might be First Amendment limits as to other forms of discipline or expulsion (see dictum in Boehner v. McDermott(D.C. Cir. 2007)), whether or not courts could enforce those limits. But that's a separate matter, I think, from choice of Congressional leadership positions, or from committee assignments.

This having been said, such decisions might be a bad idea. In the words of Jonathan Rauch,

For all its New Testament rhetoric, Washington is an Old Testament city. It is a city which holds, with Beowulf, that it is better to avenge a friend than mourn him. The only rule of conduct is, "Do not unto me, for I will in return do worse unto you."

It might be better for the majority party to leave a freshman minority party Representative with her typical modest freshman assignments, rather than to invite an escalating tit-for-tat the next time party control flips. (Voters on both sides sometimes elect members who say some pretty offensive things.) But I can't speak to that; all I can say is that the Constitution doesn't prevent committee assignments from being a political process, based in part on members' political activity and political speech.

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Stripping House Member of Committee Assignments Doesn't Violate the First Amendment - Reason

The current US political environment is often regarded as the most antagonistic and polarized in living memory, and has created landmines for employers. Personal politics have become increasingly controversial, pervading areas that were once safe. Opinions are amplified by social media. Technology has blurred the boundaries of the workplace and the workday by enabling employees to work anywhere anytime. This is evident more than ever in the COVID-19 pandemic.

In this volatile atmosphere, employers are concerned with the effect of employees political discussions and conduct, both at work and off-duty, on their legal liability and business productivity.

Every day in the media, we see situations that keep employers awake at night. Whether it is an off-duty private employee photographed making a controversial gesture to the Presidential motorcade, or a public school teacher suspended in connection with social media posts of his attendance at a political rally that was the precursor to criminal acts by some attendees.

Employers also deal with these issues every day in the workplace. When an employee is offensive or argumentative, it can disrupt business operations, contribute to a difficult working environment, or affect the employers business reputation or client relationships. When this conduct takes on political tones, employers are often apprehensive about how it can and should be handled.

The First Amendment guarantees that the government will not limit the free speech of its citizens. Contrary to popular misconception, the private sector, non-unionized employees cannot assert this constitutional right to freedom of speech in the workplace. The First Amendment only restricts state actors, and therefore public employers. It does not prevent a private employer from imposing restrictions on employee speech or conduct that is not otherwise protected. In certain very specific situations, a private employer that is fulfilling a traditionally public function, or is sufficiently controlled by, or intertwined with, a government agency could also be considered a state actor but these situations are uncommon.

Although a public employee is constitutionally protected by the First Amendment, this is not a free pass to say or do anything without limitation. The employers reasons for restricting employee speech are considered. However, if a public employee is acting as a citizen on a matter of public concern, their speech or conduct is likely to be constitutionally protected, and the public employer must have a compelling reason for restricting it. A public employer must therefore be extremely careful when restricting or disciplining employees for their speech or conduct. Having policies that prohibit social media activity during the workday are helpful. Of course, teachers abilities to hold students hostage to their beliefs during the instructional day remains an area where employers can exert significant control over the teacher.

Private employees may not claim the protection of the First Amendment in the workplace but their speech and conduct are protected, directly or indirectly, by certain federal legislation.

The National Labor Relations Act (NLRA), which applies to almost all employees, union and non-union, protects an employees right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to work together to improve the terms and conditions of their employment. A discussion between employees whether in the workplace, off-duty, or on social media, about working hours, wages, or workplace conditions could therefore be protected by the NLRA. An employee who publicly advocates for improved workplace safety regulations or encourages voting for a political candidate based on their pledge to increase the minimum wage may be deemed protected by the NLRA. Further, a company policy prohibiting all political speech would likely violate the NLRA.

Political speech can encroach on other areas of federal protections such as anti-discrimination legislation and harassment laws. While federal law does not protect an employee from discrimination for political affiliation, it does protect against discrimination or harassment for other reasons including, but not limited to, race, color, religion, national origin, and gender. If an employers actions or policies regarding the conduct of employees affect a protected class of people, they could be deemed discrimination or harassment on one of these grounds and open the employer up to legal action.

The Stored Communications Act (SCA) is also relevant in this area. Dating back to 1986, the SCA regulates the unauthorized disclosure of electronic communications stored with technology providers. Although it predates social media as we know it, the SCA has been applied to restrict an employers right to access or monitor aspects of an employees non-public social media activity. However, a private employer still has broad powers to monitor and restrict any access to personal social media on employer systems.

Some states have enacted statutes to extend the First Amendment rights of private employees or to implement specific protections for political expression. Here in Delaware, employers are prohibited by state statute from any direct or indirect attempt to hinder, control, coerce, or intimidate an employee in the exercise of their right to vote in any general, special or municipal election (15 Del. C. 5162 .)

Delaware has also enacted the Employee/Applicant Protection for Social Media Act to protect an employees private activity on social media. An employer may not demand access to an employees private social media accounts, or that an employee access another persons personal social media accounts (e.g. another employee); force an employee to accept a friend request; or make an employee disable privacy settings on personal social media accounts.

The Delaware Whistleblowers Protection Act provides protection from discrimination and retaliation for employees who make reports to their employer or a public body, participate in investigations and hearings, and/or refuse to commit violations concerning health and safety hazards, serious deviations from financial management or accounting standards, and/or noncompliance or an infractions concerning election campaign and contributions.

It need not be restated that an employer must know and comply with applicable state and federal law or potentially face costly and time-consuming lawsuits. However, legal compliance, though complex, is not the only consideration. How an employer handles instances of employee political speech or conduct can have professional and personal repercussions, however well-intentioned.

Just as an employees actions can be amplified in the current political and digital age, so too can an employers. Even in cases where an employer has acted within the law, their business can be damaged by the publicity that is given to their action, or lack of action, toward employees. Companies can, and have, lost a lot of business because of strategic missteps in this area.

Most employers have no desire to restrict the political expression of their employees and are genuinely motivated to create a workplace that is legally compliant, respectful, and productive. The first step toward this is to create comprehensive company policies that are well communicated and consistently applied to every employee and every situation. Relevant policies include:

Policies should be sufficiently generalized so that they are viewpoint neutral, applying to all political beliefs. But a blanket ban on political speech or conduct will not suffice as it will likely run afoul of the NLRA. Policies should have business justifications such as preventing disruption to business operations and maintaining safety in the workplace. It is often easier to control characteristics of employee speech or conduct rather than its content; e.g. a prohibition on profanity in the workplace or on clothing.

Most importantly, policies should be applied consistently to all employees, regardless of their beliefs or their seniority level. If this is not possible, then there is a problem with the policy.

Whether you are worried about avoiding future issues in the workplace or dealing with a current problem, there are steps you should take to minimize your risk as an employer:

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How to Handle Workplace and Off-Duty Conduct in Politically Charged Times - JD Supra