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I want to step back from the horrors of the attack itself, and look at Jan. 6 from a totally different perspective, the perspective of the insurrectionists themselves their own statements before, during and after the attack make clear the attack was done for Donald Trump at his instructions, and to fulfill his wishes. During the rally, President Trump led the crowd in a Stop the steal chant. Heres what that chant sounded like from the crowds perspective. Trump: We will stop the steal. Crowd: Stop the steal. Stop the steal. Stop the steal! The president basked as the crowd chanted, Fight for Trump, and when he incited the crowd to show strength, people responded, Storm the Capitol, Invade the Capitol. As the crowd chanted at the rally, the crowd at the Capitol made clear who they were doing this for. Fight for Trump! Fight for Trump! Fight for Trump! All of these people who have been arrested and charged, theyre being accountable, held accountable for their actions. Their leader, the man who incited them, must be held accountable as well. Jan. 6 was a culmination of the presidents actions, not an aberration from them. The insurrection was the most violent and dangerous episode, so far, in Donald Trumps continuing pattern and practice of inciting violence. So if you see somebody getting ready to throw a tomato, knock the crap out of him, would you seriously OK, just knock the hell I promise you, I will pay for the legal fees. I promise. The president praised a Republican candidate who assaulted a journalist, as my kind of guy. He said there were, quote, very fine people on both sides when the neo-Nazis, the Klansmen and Proud Boys invaded the city, the great city of Charlottesville, and killed Heather Heyer. And he said that an attack on a Black protester at one of his rallies was very, very appropriate. Does that sound familiar? Listen to how President Trump responded when asked about his own conduct on January the 6th. So if you read my speech, and many people have done it, its been analyzed, and people thought that what I said was totally appropriate. My dear colleagues, is there any political leader in this room who believes that if he is ever allowed by the Senate to get back into the Oval Office, Donald Trump would stop inciting violence to get his way? Would you bet the lives of more police officers on that? Would you bet the safety of your family on that? Would you bet the future of your democracy on that? President Trumps lack of remorse and refusal to take accountability after the attack poses its own unique and continuing danger. It sends the message that it is acceptable to incite a violent insurrection, to overthrow the will of the people, and that a president of the United States can do that. And get away with it. His impeachment, conviction and disqualification is not just about the past. Its about the future. Its making sure that no future official, no future president does the same exact thing President Trump does. If you dont find this a high crime and misdemeanor today, you have set a new terrible standard for presidential misconduct in the United States of America. The only real question here is the factual one. Did we prove that Donald Trump, while president of the United States, incited a violent insurrection against the government? We believe that we have shown you overwhelming evidence in this case, that would convince anyone using their common sense that this was indeed incitement. We humbly, humbly ask you to convict President Trump for the crime for which he is overwhelmingly guilty of. Because if you dont, if we pretend this didnt happen, or worse. if we let it go unanswered, whos to say it wont happen again?

The House Democrats prosecuting former President Donald J. Trump rested their case on Thursday, branding him a clear and present danger to United States democracy who could sow new violence like the deadly assault on the Capitol last month if he was not barred from holding office again.

Calling on senators to render impartial justice and embrace the common sense of the countrys founders, the nine impeachment managers closed their case by laying out the grave damage the Jan. 6 riot had caused not just to lawmakers or police officers at the Capitol, but to the democratic system and Americas standing around the world. None of it, they argued, would have happened without Mr. Trump.

Senators, America, we need to exercise our common sense about what happened, said Representative Jamie Raskin of Mayland, the lead manager, reading from Thomas Paine. Lets not get caught up in a lot of outlandish lawyers theories here. Exercise your common sense about what just took place in our country.

Mr. Raskin said the evidence that Mr. Trump cultivated, incited and then showed no remorse for the attack warranted making him the first impeached president ever to be convicted and the first former president to be disqualified from holding future office.

If you dont find this a high crime and misdemeanor today, you have set a new terrible standard for presidential misconduct in the United States of America, he said.

A day after delivering the Senate a harrowing account of the deadly violence, replete with chilling, previously unseen security footage, the prosecutors returned for the trials third day with new video clips, court documents and interviews in which the rioters defended their actions by citing Mr. Trumps directives and desires.

We were invited here, one of them screamed, the clip echoing through the Senate chamber.

Their own statements before, during and after the attack made clear the attack was done for Donald Trump at his instructions and to fulfill his wishes, said Representative Diana DeGette of Colorado.

They also argued that Mr. Trump had encouraged and celebrated violence before Jan. 6 such as a white supremacist rally in Charlottesville, Va., in 2017 and scuffles during his campaign rallies and shown no remorse for whipping up thousands of his loyal supporters by telling them to fight like hell that day. Afterward, they noted, Mr. Trump called his speech totally appropriate.

Im not afraid of Donald Trump running again in four years, said Representative Ted Lieu of California. Im afraid hes going to run again and lose, because he can do this again.

Their task to convict remains a daunting one as they aim to persuade Republican senators who have shown no appetite for breaking with Mr. Trump to do so.

By turn, the managers sought to appeal to Republicans sense of patriotism and decency. They read the words of Republicans who voted in the House to impeach Mr. Trump and from the former presidents own cabinet secretaries,who resigned in protest after the deadly riot. They played audio of traumatized aides who had contemplated leaving government after the attack. And they recounted the humiliating taunts of foreign adversaries who looked on in glee.

transcript

transcript

Jan. 6 was a culmination of the presidents actions, not an aberration from them. The insurrection was the most violent and dangerous episode, so far, in Donald Trumps continuing pattern and practice of inciting violence. The president praised a Republican candidate who assaulted a journalist, as my kind of guy. He said there were, quote, very fine people on both sides when the neo-Nazis, the Klansmen and Proud Boys invaded the city, the great city, of Charlottesville, and killed Heather Heyer. And he said that an attack on a Black protester at one of his rallies was very, very appropriate. When responding to extremist plots in Michigan, Trump showed he knew how to use the power of a mob to advance his political objectives. Beginning in March, Trump leveled attacks on Michigan Gov. Gretchen Whitmer for the coronavirus policies in her state. On Oct. 8, the precise consequences of the presidents incitement to violence were revealed to the whole world. Look at this, 13 men were arrested by the F.B.I. for plotting to storm the Michigan State Capitol building, launch a civil war, kidnap Governor Whitmer, transport her to Wisconsin and then try and execute her. And what did Donald Trump do do as president of the United States to defend one of our nations governors against a plotted kidnapping by violent insurrectionists? Did he publicly condemn violent domestic extremists who hoped and planned to launch a civil war in America? No, not at all. He further inflamed them by continuing to attack the governor who was the object of their hatred. My dear colleagues, is there any political leader in this room who believes that if he is ever allowed by the Senate to get back into the Oval Office, Donald Trump would stop inciting violence to get his way? Would you bet the lives of more police officers on that? Would you bet the safety of your family on that? Would you bet the future of your democracy on that? President Trump declared his conduct totally appropriate. So he gets back into office, and it happens again, well have no one to blame but ourselves.

But already on Wednesday, Republican senators who sat through a vivid retelling of an assault they had lived through appeared unmoved from their determination to acquit Mr. Trump.

Seventeen Republicans would have to join every Democrat to achieve the two-thirds majority needed for conviction.

Mr. Trumps lawyers are expected to present his defense beginning at noon on Friday. They intend to deny that he was responsible for the attack or meant to interfere with the electoral process underway at the Capitol, despite his repeated exhortations to supporters to fight like hell to stop the steal.

One of the lawyers, David I. Schoen, derided the Democrats presentation as a thinly sourced entertainment package and offensive during an appearance on Fox News during the trial on Thursday.

In no setting in this country where someones guilt or innocence is being adjudicated would this kind of approach be permitted, he said.

The trial is moving quickly, and senators could reach a verdict by the end of the holiday weekend. But first, they will have a chance to question the prosecution and the defense, and the managers may force a debate and vote on calling witnesses.

Aishvarya Kavi contributed reporting.

transcript

transcript

The crowd at Donald Trumps speech echoed and chanted his words. And when people in the crowd followed his direction and marched to the Capitol, they chanted the same words as they breached this building. Now, lets return to the speech for a moment. During the rally, President Trump led the crowd in a Stop the Steal chant. Heres what that chant sounded like from the crowds perspective. Heres a term all of you people really came up with we will stop the steal. [cheering] Stop the steal! Stop the steal! And when he incited the crowd to show strength, people responded, Storm the Capitol, Invade the Capitol. Here are both of those moments, but from the crowds perspective. Fight for Trump! Fight for Trump! Fight for Trump! As President Trump said, show strength, a person posted to Parler saying, quote, Time to fight Civil War is upon us. Another user said, quote, We are going to have a Civil War. Get ready. An analysis found that members of Civil War quadrupled on Parler in the hour after Donald Trump said, show strength. Insurrectionists holding Confederate flags and brandishing weapons cheered the presidents very words. Stop the steal! Stop the steal! Stop the steal! Stop the steal! When the insurrectionists first got into the building and confronted police, the mob screamed at the officers that they were listening to President Trump.

The House Democrats leading the impeachment prosecution used the words of rioters supporting Donald J. Trump against the former president on Thursday, as they sought to show that the sacking of the Capitol was done by people who believed they were following Mr. Trumps wishes.

They truly believed that the whole intrusion was at the presidents orders and we know that because they said so, said Representative Diana DeGette, Democrat of Colorado, and one of the House managers.

In one clip, she showed rioters chanting Stop the steal! Stop the steal! as they tried to enter the Capitol not long after Mr. Trump had led that chant at a rally. In another, she showed a rioter, identified as Baked Alaska, the nickname of the far-right personality Anthime J. Gionet, talking about calling up Mr. Trump while in the Capitol: Hell be happy. What do you mean? Were fighting for Trump! In a third, a rioter was heard shouting at police in the Capitol, We are listening to Trump your boss.

Ms. DeGettes presentation spliced together footage of the rioters themselves as well as subsequent claims from their lawyers about why they were at the Capitol. She quoted an attorney for Jacob Anthony Chansley, who stormed the Capitol wearing a fur headdress with horns and his face painted red, white and blue, saying that Mr. Chansley was there at the invitation of our president. Mr. Chansley, who is known as Q Shaman for his propagation of baseless QAnon conspiracy theories, also left a note in the Capitol for former Vice President Mike Pence that read, Only a matter of time. Justice is Coming!

The Democrats case and their repeated use of gripping and wrenching videos from the day of the riot, including some shot by the rioters themselves is aimed not just at the Republican jurors in the Senate, who seem increasingly unlikely to convict Mr. Trump, but a nationwide television audience.

This was not a hidden crime, Ms. DeGette said. The president told them to be there.

In one last video, Ms. DeGette showed a rioter shouting clearly about who had brought them to the Capitol building. We were invited here! he shouted. We were invited by the president of the United States!

The House prosecution team on Thursday sought to preemptively rebut a legal argument that former President Donald J. Trumps lawyers are expected to make in his defense: that his remarks to a crowd of supporters on Jan. 6 were protected under the First Amendment.

Representative Jamie Raskin, Democrat of Maryland and the lead impeachment manager, said the idea of a First Amendment defense to being impeached for high crimes and misdemeanors was absurd and a smoke screen.

The First Amendment does not create some superpower immunity from impeachment for a president who attacks the Constitution in word and deed while rejecting the outcome of an election he happened to lose, Mr. Raskin said.

In a brief on Monday, Mr. Trumps lawyers relied in part on the First Amendment to defend the former president. They asserted that his remarks on Jan. 6 fell well within the norms of political speech that is protected by the First Amendment, and to try him for that would be to do a grave injustice to the freedom of speech in this country.

Mr. Raskin tried to flip the argument on its head as he addressed senators on Thursday.

If anything, he said, President Trumps conduct was an assault on the First Amendment and equal protection rights that millions of Americans exercised when they voted last year, often under extraordinarily difficult and arduous circumstances.

For weeks, President Biden and his aides have tried to frame the second impeachment of his predecessor, Donald J. Trump, as a distraction from his efforts to fulfill the promises he made to the American people.

Im focused on my job, the president told reporters on Thursday, to deal with the promises I made. And we all know we have to move on.

That focus, he said, meant that on Wednesday he had not watched the gruesome retelling of the events on Jan. 6 that the Democratic House impeachment managers had shown in a series of stunning video clips because he had been going straight through last night, until a little after 9.

Mr. Biden did concede that my guess is some minds may be changed as a result of the trial. But his press secretary, Jen Psaki, said later that he was not intending to give a projection or prediction.

Despite the emotional and harrowing scenes that Democratic lawmakers hope will define Mr. Trumps legacy, even if he is not convicted, White House officials have refused to engage in anything even tangentially related to the trial and have insisted they spend no time thinking or talking about the former president who relentlessly attacked Mr. Biden.

It reminds people of why they so definitively wanted to turn the page on Donald Trumps daily fever pitch versus the calm, cool, controlled Joe Biden at 97.1 degrees, said Rahm Emanuel, a White House chief of staff under President Barack Obama and a former mayor of Chicago.

Mike DuHaime, a Republican strategist, put it another way. The longer Donald Trump stays central to the news, the better it is for Biden, he said. The constant reminder of Trumps worst actions makes Biden look great by comparison, simply by acting sane.

And exhibiting a level of top-down message discipline that was rarely on display during the Trump presidency, Ms. Psaki has worked to reinforce the message that the presidents thoughts are not on the behavior of his predecessor and its consequences. His view is that his role is should be currently focused on addressing the needs of the American people, putting people back to work, addressing the pandemic.

But the trial has also provided Mr. Biden with some cover as he faced hurdles on some of his defining policy promises.

On Tuesday, as Representative Jamie Raskin of Maryland, the lead impeachment manager, made an emotional appeal to senators, the White House backtracked on its stated goal of reopening a majority of our schools in the first 100 days of Mr. Bidens presidency.

Mr. Trumps trial dominated headlines instead of Ms. Psakis scaling back the presidents ambitions, saying the goal was for more than 50 percent of schools to have some teaching in person at least one day a week in the first 100 days.

In an email, Ms. Psaki disputed the fact that her comments signified a retraction of previous promises. We gave our first definition of the specifics of a goal that had not yet been clearly defined for the public, she said.

transcript

transcript

We also see the extraordinary valor of the Capitol Police, who risked and gave their lives to save our Capitol, our democracy, our lives. They are martyrs for our democracy, martyrs for our democracy, those who lost their lives. That is why I am putting forth a resolution, introducing legislation to pay tribute to the Capitol Police and other law enforcement personnel who protected the Capitol, by giving them a Congressional Gold Medal, the highest honor that Congress can bestow. The service of the Capitol Police force that day brings honor to our democracy. Their accepting this award brings luster to this medal. We must always remember their sacrifice and stay vigilant against what Ive said before, about what Abraham Lincoln said: The silent artillery of time. We will never forget.

Among the harrowing images presented during the impeachment trial of former President Donald J. Trump, one video stood out: a Capitol Police officer sprinting toward a senator to warn of the angry mob nearby.

The senator, Mitt Romney of Utah, is shown turning on his heels and fleeing to safety.

I dont think my family or my wife understood that I was as close as I might have been to real danger, Mr. Romney told reporters on Thursday, one day after the video showed Officer Eugene Goodman aiding him. They were surprised and very, very appreciative of Officer Goodman, in his being there and directing me back to safety.

For Officer Goodman, it was the second time a video went viral displaying actions widely credited with saving members of Congress. The first, which showed him single-handedly luring the mob away from the entrance to the Senate toward an area with reinforcements, turned him into a hero. The second has added to his lore.

Both have catapulted Officer Goodman a former Army infantryman who served in one of the most dangerous parts of Iraq during a lethal time in the war to fame he never sought.

On Wednesday, after Mr. Romney watched the videos that showed Officer Goodman directing him to safety, he could be seen talking with the officer. Senator Rob Portman, Republican of Ohio, later walked over and fist bumped the officer.

On Thursday, Speaker Nancy Pelosi singled out Officer Goodman for his courage when she introduced legislation to award the Capitol Police and other law enforcement personnel who responded on Jan. 6 with the Congressional Gold Medal, the highest honor of Congress. On Jan. 20, Officer Goodman was given the task of escorting Vice President Kamala Harris at the inauguration of President Joseph R. Biden Jr.

Veterans who served alongside Officer Goodman in the 101st Airborne Division in Iraq some 15 years ago say that the officer, known then as Goody, never craved accolades.

I saw him come out in front of the vice president, and he immediately ducked to the right, said Mark Belda, who served with Officer Goodman in Iraq. I thought, thats definitely Goody.

As a day of violence and mayhem at the Capitol slid into evening last month, with bloodshed, glass shattered and democracy besieged, President Donald J. Trump posted a message on Twitter that seemed to celebrate the moment. Remember this day forever! he urged.

The House Democrats prosecuting him at his Senate impeachment trial barely a month later hope to make sure everyone does.

With conviction in a polarized Senate seemingly out of reach, the House managers, as the prosecutors are known, are aiming their arguments at the American people and historians who will one day render judgment on him.

Through the expansive use of unsettling video footage showing both Mr. Trumps words and the brutal rampage that followed, the managers are using their moment to ensure Mr. Trump is held accountable by those two groups, even if he is acquitted by the Senate.

Regardless of the outcome of the trial, the first paragraph of historical accounts of the Trump presidency is likely to be the legacy of the riot that ended it, said Ken Gormley, who has written books on impeachment, presidents and the Constitution.

Senator Lisa Murkowski of Alaska, one of Mr. Trumps more outspoken Republican critics, touched on that on Wednesday after the House managers played a searing sequence of never-before-seen images of the mob he inspired ransacking the Capitol.

Given what the country has now seen, prospects for a Trump comeback campaign in 2024 were thin, she said.

I dont see how Donald Trump could be re-elected to the presidency again, Ms. Murkowski told reporters. I just dont see that.

The question is how much power to dominate the G.O.P. will have been drained away by the time this is over, said Karl Rove, the Republican strategist and former adviser to President George W. Bush.

Mr. Trumps camp acknowledges that the prosecution has been effective, but portrays it as an illegitimate smear borne of partisan animus. Jason Miller, a longtime adviser and campaign spokesman for Mr. Trump, told Fox Business, the president is going to be involved in making sure we win back the House and Senate in 2022.

Mr. Trumps legal team, which will begin its own arguments after the House managers conclude theirs, dismissed the use of the video in the Senate trial as an inflammatory tactic to blame the former president for the actions of others.

Jonathan Turley, a law professor at George Washington University who testified against impeachment the first time the House lodged charges of high crimes and misdemeanors against Mr. Trump in 2019, said the managers this time were just playing to the crowd rather than making a legal argument.

Much of the argument seems designed to enrage rather than convict, he said.

In that regard, it was having an impact outside the chamber. Twitter reinforced on Wednesday that it will never allow its most famous former user back onto its platform after cutting him off from his 89 million followers for inciting violence. And The Wall Street Journals influential conservative editorial page said that Mr. Trump is permanently scarred regardless of whether he is convicted.

History will remember, Mr. Trump declared in another tweet about 10 days before the riot. That it will, and the trial this week will go a long way toward deciding what those memories will be.

It has been just over a year since former President Donald J. Trump first faced impeachment charges in the Senate, but so much has happened since then.

We asked more than two dozen voters most of whom initially responded to a Survey Monkey poll and whom The New York Times reached out to during the first impeachment trial to describe the impeachment in a single word.

Here are excerpts from what they said.

Consequential

Oscar Gomez, 51, a business consultant in San Francisco who describes himself as left of center.

Youre accountable for your actions and words up until your last day of employment. In my assessment, there is direct connection between his words that day and the violence that followed.

Necessary

Jerry Iannacci, 53, an art teacher living in a Philadelphia suburb who says he is independent.

Theres no way to not go through with it. Is it going to divide the country? I dont know that the gap can be any wider than it is now. If one side decided that armed insurrection was the way to go, whats worse? They commandeer tanks next time? They find a few ex-Air Force pilots who can fly a plane and they buy a surplus F-16?

Unnecessary

Cherece Mendieta, 47, is a conservative in Houston.

Theyre impeaching a man for fighting for what he believes in. Did he tell them, Go storm the Capitol; go threaten their lives? No, he didnt. Its ridiculous.

Fiasco

Bill Marcy is a former law enforcement officer who traveled to Washington on Jan. 6 to hear Mr. Trump speak, but he said he was not part of the crowd that went to the Capitol.

Theres no responsibility Donald Trump has for what happened.

Justified

Jimmy Welch, 54, is a Republican and former Trump supporter from Louisville, Ky.

At my job, I couldnt come in and spread a bunch of lies and get people riled up and have a strike without repercussions.

Unjustifiable

Originally posted here:
Impeachment Trial Day 3 Highlights: Prosecutors Rest Their Case, Warning Trump Can Do This Again if He Is Not Convicted - The New York Times

By TONY MAUROSpecial correspondent for the Freedom Forum

Former President Donald Trumps fiery 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 professor Alan Dershowitz and 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, titled Brandenburg v. Ohio, struck down a law that was used to prosecute Clarence 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 Schools Einer Elhauge asserted in a Washington Post column, 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 late New York Times columnist Anthony Lewis wrote 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 of President William McKinley in 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 were Chief Justice Earl Warren and Justices Hugo Black, William O. Douglas, John M. Harlan, William J. Brennan Jr., Potter Stewart, Byron White and Thurgood 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 trial - hays Post

The First Amendment is the first amendment to the Bill of Rights, which includes the original 10 amendments drafted immediately after the Constitution of the United States was ratified in 1788. Here, amendments are changes or additions to the Constitution that arent part of the original document.

In 1787, members of the Constitutional Convention gathered in Philadelphia to revise the founding document of the country, the Articles of Confederation. They decided to create a new one instead, and by September, theyd drafted the Constitution. Getting the new document approved, however, was another story. Many opposed this new Constitution because it didnt specify the rights of the people. The Constitution was only passed after Congress promised to add a list of rights afterwards.

Its this proposed list of rightsthe Bill of Rights, ratified in 1791that yielded the First Amendment. Compared to some other amendments, its quite short. The full text reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The freedoms this amendment protectsreligion, speech and the press, assembly, and petitionare called the First Amendment freedoms or rights, both officially and colloquially invoked in the US.

The First Amendments provisionsprovisions in legal documents like the Constitution are called clausesregarding religion have specific names. The prohibition against establishing a religion is known as the Establishment Clause, and forbidding laws that prevent people from freely holding and practicing religious beliefs is known as the Free Exercise Clause.

Due to its brevity and ambiguity, issues regarding the interpretation of the First Amendment have been perennial points of debate throughout American history. The specific application of these rights, like other rights, has been a matter often judged by the Supreme Court. For instance, cases have determined that the First Amendments free speech clause doesnt protect fighting words, which is defined as speech intended to cause injury or breach of the peace, and that school libraries cant remove books because school officials disagree with their content.

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First amendment | Definition of First amendment at ...

Record shop owner Charles Freeman stands in handcuffs as a Broward detective searches him following his arrest in his store in Fort Lauderdale, Fla., June 9, 1990. Freeman was arrested for selling an undercover detective a cope of 2 Live Crew's album "As Nasty As They Wanna Be." A federal judge ruled the album obscene, but the 11th U.S. Circuit Court of Appeals reversed. (AP Photo/Doug Jennings, used with permission from the Associated Press)

Once dismissed as a fad, rap music has become a cultural mainstay and a billion dollar industry. The musical genre, a segment of which often features a hard-core assessment of societal woes in the inner cities, has come under threats of censorship through the years in a variety of contexts. Some government officials and others charged that certain rap lyrics were incendiary and contributed to violence. Case in point, the Federal Bureau of Investigation sent letters in 1989 to Priority Records about the rap group N.W.A.s hit song Fuck Tha Police.

Many other rappers have been threatened through the years with either obscenity charges or censorship efforts, including such rap pioneers as Ice-T and Too Short. Rap lyrics became the subject of a U.S. Supreme Court case, Elonis v. United States (2015), when the Court evaluated whether a man committed a true threat when he posted rap lyrics that allegedly threatened his ex-wife and others. However, the Court did not directly address the artistic merits, or lack thereof, of Elonis lyrics in issuing its decision.

In a high profile case, Broward County, Florida sheriff Nick Navarro prosecuted record store owners who sold the rap group 2 Live Crews album As Nasty As They Wanna Be, which contained many tracks filled with profanity and sexually laced language. Navarro believed that the album constituted obscenity.

Skyywalker Records, the record company of 2 Live Crews lead performer Luther Campbell, and the four members of the group filed a lawsuit in federal court, seeking a judicial declaration that their album was not obscene and that the actions of Navarro imposed an unconstitutional prior restraint on expression.

A federal district court judge declared the record obscene in Skyywalker Records v. Navarro (1990), applying the Miller Test from the U.S. Supreme Courts decision Miller v. California (1973). However, the plaintiffs appealed to the 11th U.S. Circuit Court of Appeals, which reversed in Luke Records v. Navarro (1992). The appeals court explained that the plaintiffs had submitted expert testimony that the album contained serious artistic value a contention not refuted by the sheriff by any expert testimony or other evidence other than a tape recording of the album.

A work cannot be held obscene unless each element of the Miller test has been met, the appeals court wrote. We reject the argument that simply by listening to this musical work, the judge could determine that it had no serious artistic value.

Another criticism of rap music, particularly the so-called gangsta rap genre, is that it can incite imminent lawless action. That was the essence of the argument filed by the attorneys for three family members of a slain Texas state trooper in Davidson v. Time Warner (1997). The state trooper was killed by Ronald Howard, who was listening to the rap album by Tupac Shakur entitled 2Pacalypse Now.

The plaintiffs contended that Time Warner, the producer of the album, was legally responsible for the death of Trooper Davidson, because the anti-police lyrics in 2Pacalypse Now caused Howard to kill the trooper. The plaintiffs argued that the music constituted incitement to imminent lawless action under Brandenburg v. Ohio (1969). They cited Tupac Shakurs claim that his music was revolutionary. Time Warner contended that the music was a form of protected expression under the First Amendment.

A federal district court in Texas sided with Time Warner and ruled that the album was protected by the First Amendment. Regarding the incitement allegation, the court explained: Calling ones music revolutionary does not, by itself, mean that Shakur intended his music to produce imminent lawless conduct. At worst, Shakur's intent was to cause violence some time after the listener considered Shakur's message. The First Amendment protects such advocacy.

There is a growing number of criminal cases involving the prosecutorial use of rap music as evidence in trials. Legal commentators Donald F. Tibbs and Shelly Chauncy write: There is a new form of policing and prosecutorial decisionmaking that is as dangerous as it is unconstitutional. It involves prosecutors using amateur rap music videos sometimes with scant additional evidence to prosecute and convict Black men. (35).

Prosecutors often seek to introduce the rap videos into evidence because they show the existence of a criminal enterprise, association with other members, familiarity with firearms, and a motive to commit certain crimes. Defendants often counter that the rap music videos are speech on matters of public concern, namely commentaries on urban life, the war on drugs, and the lack of hope in the inner city. However, courts often quote the hate crime case Wisconsin v. Mitchell (1993) for the proposition that the First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.

For example, in U.S. v. Herron (2014), a federal district court in New York rejected the First Amendment arguments of Ronald Herron, a.k.a Ra Diggs, who sought to prohibit prosecutors from introducing rap music and rap-related videos. The court reasoned that the videos have bearing on issues in this case, i.e., charges of racketeering, racketeering conspiracy, murder in-aid-of racketeering, firearms offenses, etc.

Contrast that reasoning with the New Jersey Supreme Court in State v. Skinner (2014). The state high court ruled that the introduction of graphic rap lyrics into a murder trial was unduly prejudicial evidence that outweighed any potential relevancy of the material. While the court decided the case on evidence grounds, as opposed to the First Amendment, the state high court wrote: Fictional forms of inflammatory self-expression, such as poems, musical compositions, and other like writings about bad acts, wrongful acts, or crimes, are not properly evidential unless the writing reveals a strong nexus between the specific details of the artistic composition and the circumstances of the underlying offense for which a person is charged, and the probative value of that evidence outweighs its apparent prejudicial impact.

Rap videos and lyrics have been the subject of many free-speech disputes involving public school students and discipline by school officials. In Bell v. Itawamba County Sch. Bd. (2015), the Fifth U.S. Circuit Court of Appeals ruled that public school officials could discipline student Taylor Bell, whose rap persona was T-Bizzle, for his rap music video that he made off-campus after learning that two white teachers allegedly had sexually harassed several African-American students.

Bell contended that his off-campus artistic expression was protected speech under the First Amendment. However, school officials contended that the video was a form of an unprotected true threat and substantially disrupted school activities under the seminal standard from Tinker v. Des Moines Independent Community School District (1969). The Fifth Circuit majority reasoned that Bells recording was substantially disruptive, writing that threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach.

In Jones v. State (2002), the Arkansas Supreme Court upheld the delinquency adjudication of a student who was charged with making a terroristic threat towards a female student through rap lyrics. The student wrote the rap lyrics and handed it to the girl. The female student went to the school principal, who called the police.

After losing in the juvenile court, Jones appealed to the state high court. The state high court upheld his delinquency finding, reasoning that his lyrics were not protected by the First Amendment because they constituted a true threat.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.

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Rap Music and the First Amendment | The First Amendment ...

Lawyers for former President Donald Trump have filed a 78-page brief arguing that he should not be convicted by the Senate in an impeachment trial that begins Tuesday. Trump is charged with inciting an insurrection through various statements that allegedly encouraged the January 6 putsch targeting the US Capitol.

The briefs primary arguments are constitutional. It claims that the Constitution does not permit an impeachment proceeding against a former official. And the brief also argues that Trump is immune from impeachment because the actions which led to that impeachment are protected by the First Amendment.

The first argument is, at least, not entirely ridiculous. While the majority view among scholars is that a former official may be impeached and convicted by the Senate, there are non-frivolous arguments that a former president is beyond the impeachment power.

But the claim that impeaching Trump violates the First Amendment is risible. There are at least three separate reasons why the First Amendment does not protect Trump.

The first is that impeachment is, essentially, a human resources matter. The Constitution provides that Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office. So, with Trump out of office, the only question in his second impeachment trial is whether he should be permanently disqualified from certain federal jobs.

As the Supreme Court explained in Connick v. Myers (1983), the States interests as an employer in regulating the speech of its employees differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. Though the governments power to discipline employees (or former employees) for aberrant speech is not absolute, it is broad enough to allow Trump to be disqualified from office.

The second reason Trump cannot invoke the First Amendment is that many of the statements he made, which allegedly incited the January 6 attack on the Capitol, are lies. Trump accused Democrats of trying to steal the election, and he falsely claimed that he overwhelmingly won an election that he lost by over 7 million votes.

As the Supreme Court held in New York Times v. Sullivan (1964), the First Amendment does not protect individuals from defamation suits if they make a false claim with knowledge that it was false or with reckless disregard of whether it was false or not. For the reasons explained below, a similar rule should apply to Trump.

Finally, some of Trumps statements such as a January 6 speech where he told his supporters to fight like hell and that youll never take back our country with weakness. You have to show strength and you have to be strong may constitute incitement to imminent illegal action, which is not protected by the Constitution.

Although the First Amendment provides some protection to government employees, those protections are much weaker than those afforded to private citizens, at least when the government seeks to fire or otherwise take a job action against an employee.

Imagine, for example, that a public school hires someone to teach algebra, but this teacher refuses to follow the curriculum and instead spends their class time lecturing their students about 16th-century Japanese art. The First Amendment protects a private citizens right to speak about Japanese art, but the school district could discipline or even fire this teacher for failing to do their job properly even though their only offense was to engage in speech that is normally protected by the Constitution.

Moreover, while the First Amendment provides a relatively robust shield against workplace discipline to rank-and-file government employees, the Constitution offers very little protection to senior officials in political jobs. As a private citizen, for example, Secretary of State Tony Blinken is allowed to criticize President Joe Bidens foreign policy. But as one of Bidens top lieutenants, Blinken may be fired immediately if he makes a disparaging remark about Bidens policies.

As the Supreme Court explained in Branti v. Finkel (1980), if an employees private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the States vital interest in maintaining governmental effectiveness and efficiency.

Thus, Trumps private political belief that he, and not the lawful winner of the 2020 presidential election, should be president must yield to the States vital interest in maintaining governmental effectiveness and efficiency.

Trumps lawyers, for what its worth, primarily rely on the Supreme Courts decision in Bond v. Floyd (1966), which held that the Georgia House of Representatives violated the First Amendment when it prevented state Representative-elect Julian Bond from taking his seat ostensibly because of statements Bond made criticizing the Vietnam War. (Bond, an important civil rights leader, was one of the first Black representatives elected in Georgia after the passage of the Voting Rights Act of 1965; its fairly likely that the real reason he was excluded had less to do with his opinion of the war than the color of his skin.)

The Bond decision is more than a half-century old, and since then weve seen a whole line of cases involving First Amendment protections for government employees, including the Branti case. So its not entirely clear that Bond remains good law. To the extent that Bond is still valid, however, Trumps lawyers argue that cases like Branti only apply to appointed political officials and that Bond provides much more robust protections to elected officials.

Yet even if we accept that elected officials enjoy greater First Amendment protections than political appointees, the Bond case does not help Trump escape impeachment.

In 1960, civil rights activists ran an advertisement in the New York Times alleging that Alabama police used brutal tactics to suppress protests. In response to this ad, an Alabama police official filed a defamation suit against the Times, pointing to minor factual errors in the advertisements text. An Alabama jury handed down a $500,000 verdict against the Times.

But the Supreme Court tossed out that verdict in New York Times v. Sullivan (1964), a seminal decision holding that the First Amendment provides strong protections against defamation lawsuits that threaten free speech. Yet, while these protections are quite robust, especially when a defamation suit involves statements about a public figure that regard a matter of public concern, they are not unlimited.

At the very least, someone can still successfully be sued for defamation if they make a false statement with knowledge that it was false or with reckless disregard of whether it was false or not, according to New York Times.

Although New York Times was a case about defamation and not about the First Amendment rights of elected officials, the Court relied heavily on New York Times when it decided Bond. In explaining why Rep. Bonds rights were violated, the Court said that the central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times Co. v. Sullivan is that debate on public issues should be uninhibited, robust, and wide-open.

Under Bond, the New York Times principle was extended to statements by a legislator.

Two years after Bond, the Court handed down its decision in Pickering v. Board of Education of Township High School District (1968), which established the modern framework governing First Amendment suits by government employees. Pickering involved a public school teacher, not an elected official, but it provides additional support for the view that government employees do not have a First Amendment right to lie.

In Pickering, the Court held that absent proof of false statements knowingly or recklessly made by him, a teachers exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.

New York Times, Bond, and Pickering, in other words, all suggest that a government employees First Amendment rights regardless of whether that employee is elected do not include a right to knowingly make false statements, or to make statements with reckless disregard as to whether they are true or not.

So when Trump riled up his supporters by falsely claiming that the 2020 election was stolen from him, he was not protected by the First Amendment.

In Brandenburg v. Ohio (1969), the Supreme Court held that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Thus, while speakers, including Trump, are protected even if they advocate illegal actions, this protection has limits. If such advocacy is made with the intent to incite imminent lawless action, and if such action is likely to result from a persons speech, then that speech is not protected by the First Amendment.

Brandenburg sets a high bar for incitement prosecutions. But Trumps statements immediately before the January 6 putsch were so egregious that they may overcome this high bar. In a speech that he gave right before his supporters attacked the Capitol, Trump told them that if you dont fight like hell, youre not going to have a country anymore, that they need to take back our country, and that they cant show weakness and have to be strong.

Writing in the Washington Post, Harvard law professor Einer Elhauge argues that these statements constitute constitutionally unprotected incitement, even under Brandenburg:

Although Trump tried to protect himself by stating that he was sure that the crowd would peacefully march to the Capitol, that does not alter the fact that he was inciting the crowd to forcibly stop Congress from counting the certified electoral votes once they got there.

Trump thus clearly incited lawless action (obstructing the operations of Congress is a crime) that was imminent (right after the speech, a short walk away). That he wanted to incite such lawless action is confirmed by reporting that for hours he watched the Capitol attack with pleasure and did not take any steps to stop it by calling out the National Guard or by urging his supporters to stand down.

Again, its far from clear that Trump could be prosecuted in a criminal court for his statements Brandenburg makes it extraordinarily difficult for prosecutors to win such cases. But thats not the issue in Trumps impeachment trial.

The issue in Trumps impeachment trial is whether, given the fact that the government has broad authority to make human resources decisions under the First Amendment, Congress may conclude that Trumps statements were so beyond the pale that he should be disqualified from holding high federal office in the future.

Setting aside these legal flaws in Trumps First Amendment argument, theres also a profound practical reason public officials should be subject to impeachment, even if theyve done nothing more than give an illiberal or anti-democratic speech.

Imagine that someday in the future, a new president is elected after campaigning on a fairly mainstream platform. Then, in the presidents inaugural address, they reveal that the entire campaign was a charade: I am a great admirer of Nazi Germany, the new president declares in their inaugural address, and I plan to use my presidency to build a Fourth Reich.

Should Congress really have to wait until this Nazi president takes some affirmative step to implement this agenda before they can be impeached and removed from office?

As George Mason University law professor Ilya Somin writes, the implication of Trumps argument that he cannot be impeached for his speech is that Congress could not impeach and remove a president who openly proclaimed his intention to turn the United States into a communist or fascist dictatorship, because speech advocating despotism is protected against criminal punishment by the First Amendment if uttered by a private citizen.

But Trump is wrong that he is protected by the First Amendment. The government has far more leeway when it makes personnel decisions than it does when it regulates speech by private citizens. And even if Trump had simply spoken as a private citizen, there is a strong argument that his conduct was so egregious that it could be prosecuted as incitement.

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Trump claims impeachment violates the 1st Amendment. Thats absurd. - Vox.com