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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

An attack, an attempted coup against the U.S. government occurred in Washington, D.C. on Jan. 6, and Darrell Key in his letter published Jan. 11 called upon elected legislators to denounce the crimes committed against the U.S. Constitution and government.

The Greeneville Sun published an interview with Mr David Baker, employee of the 3rd Judicial District attorney generals office, in which Mr Baker stated: I went to Washington, D.C. alongside hundreds of thousands of others to show support for a fair democratic process I do not apologize for exercising my First Amendment right to show support for my political beliefs through peaceful and lawful demonstration while hundreds of thousands were there to protest the certification of the electoral college I got played like a fiddle. Baker also said he (had) removed a Dec. 21 post from his Facebook page, which said East Tennessee Patriots are on the road to fight back #MAGA.

Mr Baker is clearly cognizant that the intended purpose of the Jan. 6 Washington D.C. gathering was to interfere with the electoral college confirmation of Mr Bidens victory in the November 2020 presidential election, as 60 U.S. courts had found no credible evidence of election fraud.

Astute knowledgeable readers of this interview clearly recognized Mr Bakers after the fact and deliberate mischaracterization concerning his participation in this political insurrection, as being an expression of his First Amendment right to the self expression of his political views.

Interference with government functioning is not a First Amendment right, a fact Mr Baker is well aware of.

I personally challenge Mr Baker to clearly admit that his participation in the January 6th demonstration was improper, and that it violated his responsibility as an officer of the court, to demonstrate respect for the law and for the courts.

Admitting to a mistake in judgment, rather than falsely rationalizing and excusing his participation in an attempted government coup as being an expression of his First Amendment rights would go a long way towards demonstrating Mr Bakers level of knowledge, his honesty, his propensity for ethical or unethical behavior, and his fitness for or unsuitability of, his continuing to hold a position of public trust as a prosecutor in the Attorney Generals office.

Mr Bakers personal choices and actions do reflect upon his fitness to hold a position of trust as a representative of the interests of the public in legal matters. His stated rationalization for his presence in Washington, D.C., on Jan. 6 doesnt satisfy the credibility criteria level required by knowledgeable and critical readers.

As Mr. Richard Shakleford stated in his letter published Jan. 26, American history documentarian Ken Burns stated that in addition to the Civil War, The Depression and World War II, misinformation is the fourth crisis facing this great country.

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LETTER: Interference With Government Function Is Not A First Amendment Right - Greeneville Sun

Feb. 4, 2021 4:48 pm ET

In The Constitution Can Crack Section 230 (op-ed, Jan. 30), Philip Hamburger forgets how the First Amendment and Section 230 exist to create vibrant marketplaces for all kinds of expression. And both have done exactly that online and offline. Without Section 230 and its common-sense liability protections, the internet would likely become a one-size-fits-all cesspool. It would leave Americans with either an anything-goes, Wild West of an internet or an internet where aggressively moderated websites permit virtually nothing.

Section 230 prevents these dystopian outcomes. The law empowers platforms to compete for users by creating a variety of forumsfrom kid-safe and family-friendly to the more provocative and disturbing. It gives small businesses the chance to meaningfully compete against larger companies by saving them from the threat of devastating legal fees. That means Section 230 fosters a competitive internet where all users can engage in forums that best meet their unique needs.

Trace Mitchell

NetChoice

Washington

Original post:
First Amendment, Politics and Section 230 - The Wall Street Journal

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