Spring 2023

EXCERPT - Free Speech, But . . .

Written by Dennis Baron

 from You Can’t Say What You Want

Congress shall make no law . . . abridging the freedom of speech. - The First Amendment

The defense in former president Donald Trump’s second impeachment relied in part on the assertion that his speech at a rally on January 6, 2021, was protected by the First Amendment.^[i] Trump spoke for more than an hour to a crowd of thousands outside the White House, at a rally that he himself had been promoting for months, one that he had promised would be “wild.” Trump repeated the lie that the 2020 presidential election had been stolen from him. He used the word “fight” twenty separate times. And he promised his supporters that he would walk with them down Pennsylvania Avenue to the Capitol to “stop the steal.”[1]

When he finished speaking, Trump did not join the 10,000 who marched on the Capitol. And while the world watched in horror, hundreds of them broke into the Capitol building, where they attacked police, ransacked offices, and roamed the hallways looking for lawmakers to punish. They erected a makeshift gallows on the Capitol grounds. Some rioters shouted “Hang Mike Pence” as they marched through the building, a response to Trump’s insistence that the Vice President had been too weak to stop Congress from counting the Electoral College ballots that would confirm Joe Biden as president.

The events of January 6 have been called a riot, an insurrection, an act of domestic terrorism, or, by some of Trump’s more-ardent supporters keen to erase the memory, a peaceful demonstration that got a little out of hand. In the weeks and months that followed, more than 725 were charged with offenses ranging from trespass and resisting arrest to assault with a deadly weapon to seditious conspiracy, a crime which carries a maximum penalty of twenty years in prison.[ii]

The Capitol invasion left seven dead, including three police officers; 140 officers injured, some seriously; and $1.5 million in property damage.^[iii] And it left this question: Did Donald Trump incite the riot that day, or were his words protected by the Constitution?

It’s become common in the past few years for the American conservatives to reject any criticism of their words by invoking their freedom of speech. And they’re quick to label any criticism of their positions “cancel culture,” an attempt to deprive them of their First Amendment speech protections. The far right similarly rejects firearms regulations as violations of their Second Amendment right to keep and bear arms, so long as the guns in question belong to conservatives and not progressives. They defended Trump’s words as peaceful and they rejected the notion that the rioters were armed, or even rioting. Although police confiscated a significant number of guns and other weapons from the invaders of the Capitol, and millions watched the riot unfold on TV, Sen. Ron Johnson, of Wisconsin, told a Milwaukee radio interviewer, “This didn’t seem like an armed insurrection to me.”^[iv] Rep. Andrew S. Clyde, of Georgia, went further, calling the Capitol riot a “normal tourist visit.”^[v] Normalizing the events still further by referring to them as constitutionally-protected free speech, in February, 2022, the Republic National Committee declared the January 6 insurrectionists “ordinary citizens engaged in legitimate political discourse.”^[vi]

District of Columbia law makes clear that the rioters’ weapons did not have Second Amendment protection. But were Trump’s words constitutionally protected speech? The relevant part of the First Amendment states, “Congress shall make no law. . . abridging the freedom of speech.” It turns out that “no” in the Constitution doesn’t always mean “no.” Fighting words and threats have never been protected speech. And for much of American history, political speech wasn’t guaranteed protection either. Criminal or seditious conspiracy are not protected. Neither is incitement to riot. The unanswered question hanging over the events of January 6 is this: Did Trump’s words incite the violent acts that followed? And if they did, can he be held accountable?

Freedom of speech is never absolute. Justice Oliver Wendell Holmes said in Schenck v. United States (1919), the Supreme Court’s first free-speech decision, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” In affirming the convictions of two World War I draft protestors, the Schenck Court ruled that speech posing “a clear and present danger” to the nation can’t hide behind the First Amendment.[vii]

In Trump’s second impeachment, the former president’s lawyers invoked two different First Amendment decisions: Watts v. United States (1969) and Brandenburg v. Ohio (1969).[viii] But neither case furnishes a good defense for the former president. In the first case, the Court reversed the conviction of eighteen year old Robert Watts for threatening Pres. Lyndon Johnson. Watts had told a small group of anti-war protestors, “If they ever make me carry a rifle the first man I want to get in my sights is LBJ.” But Watts wasn’t about to shoot anyone – people laughed as he aimed an imaginary rifle at an imaginary Johnson. The Court found that Watts’s words, though hyperbolic and perhaps ill-chosen, posed no danger to Johnson. They did not cause a riot. They did not encourage anyone to harm the president, or anyone else. Instead, the Court declared that what Watts said was protected political speech, a peaceful protest against what he considered an unjust war.

Brandenburg also fails to protect Trump’s words. Ku Klux Klan member Clarence Brandenburg invited a local TV reporter to film a “rally” of a dozen men wearing sheets in a remote Ohio field, where they burned a cross and made threats against Jews and Blacks. But the Supreme Court reversed Brandenburg’s conviction for “criminal syndicalism” because his words, though hateful, were spoken to a small group in a remote location, where they were not likely to produce what the Court termed “imminent lawless action.”

The words of Watts and Brandenburg were protected because their tiny audiences did not and could not act on what the speakers said. In contrast, Trump spoke to a crowd of thousands primed for action. Many of the listeners, by their own testimony, were waiting for his command to attack an unprotected Capitol. Trump urged them to fight and told them to march. Although his lawyers insisted that Trump meant “fight” in a figurative sense, many in the crowd literally marched and they literally fought. It was textbook imminent lawless action. Trump’s lawyers insisted that his speech was hyperbolic. He didn’t mean for anyone to break the law. But Senate minority leader Mitch McConnell, a long-time Trump supporter, disagreed. McConnell, who had been trapped inside the Capitol by the mob, acknowledged that Trump’s words were practically and morally responsible for the Capitol riot.^[ix]

There’s lots of evidence suggesting Trump’s state of mind, his intent. There’s his long record of violent rhetoric in his private conversations, his public speeches, and his Twitter posts. Trump never seemed to care when his words caused chaos or damage to individuals, to financial markets, to America’s trading partners or the nation’s allies around the world, even to Americans trying to cope with the Covid-19 pandemic. At various times he told his audiences to rough up protesters and lock up his opponents. He suggested drinking bleach or trying unproven drugs to fight the corona virus. Some people followed those instructions. And for months he had promulgated the “big lie,” urging his followers to reclaim an election he insisted had been stolen from him.

All of this led up to Trump’s rally in Washington on January 6 to “stop the steal,” and to the riot that followed. In light of the Supreme Court’s rejection, in Terminiello v. Chicago (1948), of the heckler’s veto – banning speech because of fears that the audience might respond violently – it would appear that Trump’s speech that day could not have been prevented by authorities who feared that the crowd would overreact.^[x] But even if the president’s words, and those of his then-attorney Rudy Giuliani and other speakers that day, were constitutionally protected, the police should have been prepared for the lawlessness that followed.

Trump himself did not engage in violence. After promising rally-goers that he would accompany them to the Capitol, he returned to the White House. There his reported actions further revealed his state of mind.^[xi] He was said to be delighted watching the Capitol riot on TV. He did nothing to rein in his followers, despite pleas from advisors that he intervene. He ignored warnings of danger and urgent requests for help from political allies like Sen. Tommy Tuberville and House minority leader Kevin McCarthy, who, like Mitch McConnell and Vice President Pence, were trapped in the Capitol. He even encouraged the mob to go after Pence. Hours later, as police began to get things under control, Trump posted a video asking rioters to go home. But even then he repeated his charges of a stolen election and told the rioters that he loved them. In the days that followed, rioters defended their actions by saying that they were only following Trump’s orders. All this suggests his intent.

As the Supreme Court acknowledged in Watts, political speech can be raw, rowdy, belligerent, in your face. So long as it remains speech, it enjoys First Amendment protection. But once speech is accompanied by lawless action, it’s no longer protected. And in any case, freedom to speak doesn’t protect speakers from the consequences of their speech. When Trump’s words were directly followed by rampage, unlawful entry, property damage, injury, and death, there seems no way to give those words First Amendment cover. And the question remains for those who still insist Trump was simply exercising his right to free speech like any other American, shouldn’t a president know better?

The First Amendment guarantees the right to speak. It also guarantees the right of the people peaceably to assemble to petition the government to redress their grievances. But the right to speak and protest doesn’t mean you can stop the members of Congress from carrying out their constitutionally-mandated duty to count the Electoral College ballots on January 6. Similarly, the right to keep and bear arms doesn’t mean you can violate local gun laws and it certainly doesn’t mean you can use weapons to assault or threaten other people.

It’s a free country, to be sure, but experience and the law show we can’t always say what we want. That doesn’t make free speech a myth, but it shows that the freedom to speak is never absolute. As the events of January 6 reveal, wrapping yourself in the First Amendment doesn’t make what you said protected speech. And wrapping yourself in the Second Amendment doesn’t mean you can strap on your guns to storm the Capitol. Nor does it mean that you can use your right to speak and bear arms in order to silence someone else.

Two forces threaten free speech in America: people who assert their free speech rights in order to suppress the speech of others, and people who exercise their right to bear arms to silence whoever they don’t like. Both forces invoke the Constitution to drown out the voices of the poor and the powerless, the very minorities whose rights the Constitution would normally guarantee. One claims that the First Amendment guarantees them a speech platform which they can use to silence their critics. The other insists that the Second Amendment guarantees their right to bring a gun to the state legislature or to a political demonstration or even to a voting booth to silence anyone they disagree with. There’s a third force eroding free speech as well…: the increasing erosion of our privacy that accompanies recent advances in digital technologies. These threats don’t make free speech an illusion. But they do remind us that the right to speak – a right embedded in the fabric of democracy – must always be defended. And they reveal a gap between popular assumption that it’s a free country and you can say whatever you want, and the legal limitations on the right to speak.

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[1] This excerpt from You Can’t Always Say What You Want: The Paradox of Free Speech, by Dennis Baron (Cambridge University Press, 2023), has been edited for length updated.

[i] Bruce L. Castor, David Schoen, and Michael T. van der Veen, “Trial Memorandum of Donald J. Trump, 45^th President of the United States of America.” In re: Impeachment of Former President Donald J. Trump. Feb. 8, 2021, pp. 37–65. The other prong to Trump’s defense was that a president can’t be impeached after they are out of office, although the Senate had already rejected that argument.

[ii] The rarely used but serious charge of seditious conspiracy is detailed in 18 US Code §2384: “If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”

[iii] Keith L. Alexander, “Prosecutors break down charges, convictions for 725 arrested so far in Jan. 6 attack on US Capitol.” Washington Post. December 31, 2021.

[iv] Jack Brewster, “Sen. Ron Johnson on Capitol Riot: ‘This Didn’t Seem Like An Armed Insurrection to Me.’” Forbes, February 15, 2021.

[v] Brittany Shammas, “A GOP Congressman Compared Capitol Rioters to Tourists. Photos Show Him Barricading a Door.” Washington Post, May 18, 2021.

[vi] Republican National Committee, “Resolution to formally censure Liz Cheney and Adam Kinzinger and to no longer support them as members of the Republican Party.” February 4, 2022. washingtonpost.com. The Committee later claimed that the resolution’s original wording referred only to protestors “that had nothing to do with violence at the Capitol,” but the motion as adopted, which had been carefully vetted before the vote, did not contain that wording. Geoffrey Orr, “In Censure of Cheney and Kinzinger, RNC Calls Events of January 6 ‘Legitimate Political Discourse.’” CNN.com, February 4, 2022.

[vii] Schenck v. United States, 249 US 47 (1919).

[viii] Watts v. United States, 394 US 705 (1969); Brandenburg v. Ohio, 395 US 444 (1969).

[ix] Grace Seegers and Cassidy McDonald, “McConnell Says Trump Was ‘Practically and Morally Responsible’ for Riot after Voting Not Guilty.” CBS News, February 14, 2021.

[x] Although the term heckler’s veto was coined in the 1960s, the case of Terminiello v. Chicago, 337 US 1 (1949), offers an early example. Shortly after the end of World War II, Terminiello delivered an angry fascist rant at a Chicago speaking engagement, causing a crowd outside to riot. The Supreme Court reversed Terminiello’s conviction for disturbing the peace. Justice William O. Douglas said in his opinion that speech fulfills “its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

[xi] Maggie Haberman, “Trump Told Crowd ‘You Will Never Take Back Our Country With Weakness.’” New York Times, January 6, 2021 (updated January 15).