The current articles of impeachment that passed in the House of Representatives, now awaiting trial in the Senate, are built on Donald Trump inciting an insurrection at the U.S. Capitol on Jan. 6, 2021.
This piece will explore why I do not believe Donald Trump incited the insurrection, through looking at the First Amendment to the U.S. Constitution and a few supreme court cases.
To begin with, the First Amendment to the U.S. Constitution states “Congress shall make no law … abridging the freedom of speech …”
There is ambiguity over what all the First Amendment grants a citizen when it comes to dangerous or violent speech.
This ambiguity has led the Supreme Court of the U.S. to a few contradicting decisions throughout our nation’s history.
These decisions all boil down to one question: what speech does the First Amendment not protect?
In 1919, a case would be brought before the Supreme Court that would kindle the ambiguous flame of modern interpretation of the First Amendment: Schenck v. United States.
In Schenck v. United States the court unanimously decided, with the opinion written by Oliver Wendell Holmes Jr., that the First Amendment to the Constitution does not protect speech that “creates a clear and present danger.”
This decision was formed with precedent of the common law in mind.
Since, the decisions of multiple (Abrams v. United States, Gitlow v. New York, Whitney v. California, & Dennis v. United States to name a few) cases have operated under the “clear and present danger” precedent.
So, for a period in U.S. history a citizen’s speech was not protected if it presented clear and present danger.
Many of these cases dealt with members of the Communist Party threatening to overthrow the government.
Then came the landmark Brandenburg v. Ohio case.
In Brandenburg v. Ohio, the court ruled that the government cannot constitutionally punish abstract advocacy for force or law violation.
The “clear and present danger” precedent derived from the common law was dispensed with and replaced by the “imminent lawless action” standard.
Under this new standard, the First Amendment protects speech unless it is precisely directed in order to incite or produce imminent lawless action.
Let’s now use this test to analyze Trump’s speech. In it, he promulgated many conspiracies.
Yet, he calls for the crowd to march to the Capitol to “peacefully and patriotically make your voices heard.”
I’m failing to see where this speech is precisely directed to inciting or producing imminent lawless action. I was no fan of the speech.
As aforementioned, it was composed of conspiracies. However, that’s the thing: lies and conspiracies are protected speech under the First Amendment.
In order to state that Donald Trump’s speech directly incited the insurrection at the U.S. Capitol you must make a remarkably insatiable and subjective abstraction for advocacy of violence.
The courts have held that this is unconstitutional.
Thus, while I disagree with practically all of what Trump said in that speech, my opinion holds no weight on the matter.
Trump’s speech is protected under the United States Constitution. This is a nation of laws, not of men.