Trump’s alleged incitement brings First Amendment into focus

As House impeachment managers on Wednesday sought to brand former President Trump as the “inciter in chief,” the scope of Trump’s free speech rights took on a central focus.

Lead manager Rep. Jamie Raskin (D-Md.), seeking to preempt one of Trump’s core defenses, said the House team would demonstrate that Trump’s speech at issue fell beyond the First Amendment’s protections. 

“We heard a lot yesterday about his claim that this incitement of insurrection was perfectly appropriate because somehow it’s protected by the First Amendment,” said Raskin, a former constitutional law professor, adding, “the factual premise and the legal underpinnings of that claim are all wrong.”

In a legal trial, the line between protected speech and unprotected incitement hinges on three elements: intent, plus the immediacy and likelihood of lawlessness. 

That standard, drawn from the Supreme Court’s 1969 ruling in Brandenburg v. Ohio, is applied by courts across the country. 

Since an impeachment trial is a political rather than legal proceeding, however, senators are not bound to follow the so-called Brandenburg test. Nonetheless, that legal yardstick was cited throughout the parties’ pretrial briefs, as well as in commentary by legal scholars.

Trump’s legal team cited the landmark Brandenburg decision more than a dozen times in their brief, which argued that Trump’s speech was constitutionally protected.

“Under Brandenburg, there is no doubt that the words upon which the article of impeachment issued could never support a conviction,” the brief states, claiming that Trump had not advocated lawless action or imminent violence.

Scores of legal scholars have taken the opposing view. More than 144 constitutional experts last week penned a letter deriding Trump’s First Amendment defense as “legally frivolous” and arguing that all the elements under the Brandenburg test were satisfied.

Rodney Smolla, a First Amendment expert and law professor at Widener University, told The Hill that he believes Trump’s speech rose to the level of incitement.

“The First Amendment is not absolute,” he said. “It does not shelter a sitting President who incites insurrection and seeks to disrupt the peaceful transition of power and the rule of law.”