“The First Amendment Does Not Apply”: A Response To The Letter Of Scholars In Rejecting Trump Arguments Under The First Amendment

“The First Amendment does not apply in impeachment proceedings.”  If there is a single line that sums up the sense of legal impunity in the second Trump impeachment, it is that line from a letter sent by law professors to deny any basis for the former president to challenge his impeachment on free speech grounds. The scholars call any such arguments “legally frivolous” but only after misstating the argument and frankly employing a degree of circular logic. While I agree with aspects of the letter, I believe that the thrust of the letter misses the point of those of us who have raised free speech concerns. 

The scholars start by stating the obvious: that there is no First Amendment “defense” that bars the impeachment or conviction a president. Since there is not even a requirement that a high crime and misdemeanor be an actual crime, few argue that there is a categorical bar on the use of speech for the basis of impeachment under the First Amendment. The scholars go to great length to contest an argument not in dispute in stating “Congress’s power to impeach is not limited to unlawful acts.” However, that is not the argument that has been raised by many of us about the implications of this poorly drafted article of impeachment.

Constitutional rights and values are always relevant to an impeachment. While many subscribe to the “anything goes” school of impeachment, these senators did not take an oath to act like politicians but actors in a constitutional process under an express standard for conviction.  They are performing a constitutional, not just some political act. As such, they need to weigh the gravity of conduct and the implications of any conviction for the future. Ironically, some of these scholars have emphasized that this is a purely political process where senators have free range in determining what they consider to be a basis for conviction. Yet, Trump’s objections of constitutional and prudential concerns are being widely dismissed as frivolous, “bad faith,” or irrelevant to that decision.

It is common in impeachments for the House and the Senate to evaluate charges in reference to criminal and constitutional cases. While not controlling, they often weigh heavily in the review of articles of impeachment. Yet, these scholars insist that “The First Amendment does not apply in impeachment proceedings, so it cannot provide a defense for President Trump.”  That may be technically true in the sense of an actual defense to enjoin or bar impeachment in court. It is not true in the sense of a free speech concern over the implications of a conviction of political speech in America.  The senators must weigh if Trump’s language on Jan. 6th constitutes actual incitement to insurrection. The use of incitement as the basis for impeachment necessarily raises how incitement is defined. That raises cases like Brandenburg v. Ohio which are ultimately First Amendment cases. Understanding how such language would be viewed by the courts is relevant to weighing whether it should be treated as constitutional violation for the purposes of impeachment. Just as courts balance the value of criminal prosecution against the impact on free speech, the Senate can perform that same balancing in an impeachment trial.

This is not a new issue. We often discuss analogous constitutional and criminal cases in impeachments. That was the case when I testified in both the Clinton and Trump impeachments. In the Trump impeachment, I opposed the much discussed articles of impeachment on bribery, extortion, campaign finance and obstruction of justice. My testimony primarily focused on the legal and constitutional flaws in claiming those criminal acts, which were portrayed as both prosecutable and impeachable. However, I said that the Committee could legitimately impeach on claims of obstruction of Congress and abuse of power if they took the time to create a record to support such charges.  Ultimately, the House did impeach on those two articles but did not wait to create a sufficient record. Those arguments referenced criminal codes and cases as persuasive, not controlling, authority which is common in impeachments.

Suggesting that the First Amendment has no relevance or applicability to an impeachment proceeding is chilling. In recent years, many academics have sought to justify censorship on the Internet with an analogous argument. They argue that private companies like Twitter are not subject to the First Amendment, which only applies to the government. It is another obvious but largely irrelevant argument. Those of us who have denounced the rising censorship on social media do so as a denial of free speech. The First Amendment is not synonymous with broader values of free speech.

The question for senators is whether they should be concerned that the President’s speech would not be considered actual incitement as a criminal matter in federal court. The answer is that, of course, they should.  That is particularly a concern when critics of the President, including members of this Senate “jury” have engaged in similar over-heated and reckless political rhetoric. The Framers saw impeachment as reserved for cases of constitutional clarity. That clarity is achieved by comparison to conduct of others – both as criminal and protected matters.

As a secondary argument, the scholars insist that “The First Amendment … does not grant the president the freedom to engage in a willful dereliction of duty.” The statement is again conclusory and largely irrelevant. Trump is accused of seeking to incite an actual insurrection or rebellion, not just the “willful dereliction of duty.” The status and intent of his words are the crux of the matter. Moreover, the argument is circular. It is arguing that this is not protected speech because it is incitement. However, if it is not incitement, it is protected speech. Cases like Brandenburg v. Ohio are used to determine if speech is criminal incitement or protected speech. Such speech can be protected to preserve free speech in society, particularly in political settings.

Notably, when the scholars finally get to the whether Trump’s words constituted incitement, they admit that they are divided on the question. They noted that “many of us believe there is a powerful case that even under the Supreme Court’s narrow standards for when speech inciting violence is not constitutionally protected.” So some believe that there is a “powerful case” and some do not.  Both sides can fairly (not “frivolously”) reach such conclusions.

Thus some of these scholars (like some senators) believe that Trump’s speech might indeed be protected under Brandenburg. However, if that is true, then the President might be retroactively removed from office for language that would be viewed as protected speech in federal court. That is not determinative on the question but it is obviously relevant in weighing the culpability of using these words.

As a criminal defense attorney, I am highly skeptical that prosecutors could sustain such a charge but I accept that this is a matter of good-faith disagreement. I believe it would ultimately collapse, if not at trial than on appeal. While Trump does call for citizens to “fight” for their country and used aggressive rhetoric, he also told them to protest “peacefully and patriotically make your voices heard.”  He also says that the reason for the march is that “we are going to cheer on our brave senators and congressmen and women.” That may explain why, in a crime described over a month ago as clear and obvious by experts, has not resulted in an interview, let alone a charge, from prosecutors. If the case is so clear and “powerful” as these experts allege, charge him. However, I expect many are concerned with testing such claims when Trump could prevail in the federal courts – an act that would be viewed as a vindication for not just that case but the impeachment itself.

In the end, however, the primary argument is not just a first amendment claim but a free speech claim. In judging the culpability of a president’s speech, the Senate must consider how this impeachment impacts free speech for presidents in declaring such speech to be a constitutional violation of his duties. That means that free speech is relevant, as is prior political speech deemed protected under the First Amendment as essential to our democratic system. The Senate should consider how this riot was an attack on democracy. But it should also consider the impact of sanctioning political speech on that same democratic system.

The effort to dismiss such free speech concerns avoids the necessity of drawing lines of comparison or addressing the inherent subjectivity of such a standard. For example, various Democrats from Speaker Nancy Pelosi to Senate Majority Leader Chuck Schumer have been criticized for threatening and irresponsible rhetoric. Indeed, just two days before the trial,  Recently, Missouri Rep. Cori Bush was criticized when some felt she was justifying the violent takeover of a prison in St. Louis by tweeting the words of Martin Luther King that “a riot is the language of the unheard.” I believe such statements are not only protected under the First Amendment but exercises of free speech. I would take that position if there was an effort to sanction or expel Bush in Congress. If the Senate wants to vote on a basis for legal or moral clarity, it must consider Trump’s comments in this overall context of free speech.

These are difficult questions and lines to draw. However, the resolution will not be found in declaring that free speech (or narrower First Amendment) values have no place in the trial of former President Donald Trump.

For shorter version of this column appeared on Fox.com

76 thoughts on ““The First Amendment Does Not Apply”: A Response To The Letter Of Scholars In Rejecting Trump Arguments Under The First Amendment”

  1. https://fedsoc.org/contributors/charles-cooper

    Hon. Charles J. Cooper

    Partner, Cooper & Kirk PLLC

    Charles J. Cooper is a founding member and chairman of Cooper & Kirk, PLLC. Named by The National Law Journal as one of the 10 best civil litigators in Washington, he has over 35 years of legal experience in government and private practice, with several appearances before the United States Supreme Court and scores of other successful cases on both the trial and appellate levels. Mr. Cooper has represented some of the biggest names in American politics, including Attorney General Jeff Sessions in response to the alleged Russian interference in the 2016 United States elections, Attorney General John Ashcroft, and former National Security Adviser and United States Ambassador to the United Nations John Bolton.

  2. Does it bother anyone that there are Law school professors looking to deny a President due process of law? I understand this is political, but every defendant has a presumption of innocence. Since these Professors seem to think it is OK, I want to put this up for discussion for them. Did Nancy Pelosi blow a dog whistle when she did not condemn the D.C. or ANTIFA riots by saying people will do what people will do? Seems to me that maybe she should face censor or removal for not saying this was both criminal and wrong. It might give the impression that she approved.

    Just asking.

    1. Quiet man, Trump’s due process is not being denied. In fact he was given the opportunity to defend himself in person. He chose not to do so.

      Free speech like any other right has its limits and the 1st amendment doesn’t protect all speech. Your comparison between what Pelosi said and Trump is a false equivalency. Pelosi was answering a question over a group’s actions that already occurred. She didn’t talk before they acted. Trump spent weeks spewing inflammatory rhetoric and sowing an idea into his supporters minds. The rally on the 6th was already an attempted to incite the crowd. Trump set the date for them to show up. That in itself points to intent. The first amendment doesn’t protect Trump here.

      1. Perhaps it does not. Nor does it protect us who could be impeached too as private citizens under Congress’ facile readings of the Constitution.

        They are a group of petty and mean spirited tyrants who would make King George blush

        Sal

        1. Trump was impeached while in office, for actions he took while in office. Your choice to ignore this is what’s facile.

  3. For those of you that do not think First Amendment does not apply, think about these two things. First: if Trump is using free speech and is covered by First Amendment, then how can you convict and remove him, let alone impeach? How do you convict when he is not breaking the law? Second: it is never the first blow that matters, but all the rest later. Democrats do not seem to learn from history. If they get Trump now, what can they say when it is their guys turn later, especially if they are giving speeches? I do not think Trump is convicted, let alone prevented from running again. Yet, the score keepers are keeping score. This has turned into a farce for the ages. I can only hope that when the Trump Derangement Syndrome winds down, politicians come back to their senses.

  4. We have two justice systems. Trump himself is in the class where no laws apply, he has nothing to worry about. It’s the other two groups that need to worry – one group is all Trump supporters and the other group are those that actually broke into the Capitol.

    These last two groups are bound by “little people” laws. Trump will never be held legally accountable. The DOJ will likely use “guilt-by-association” to punish many of Trump’s supporters and the actual insurrectionists will go to prison.

  5. “ That may be technically true in the sense of an actual defense to enjoin or bar impeachment in court.”

    Turley is just parsing semantics as usual. Here he admits what they are saying is “technically” true. To be a constitutional scholar is to stick to technicalities. Here Turley is bloviating between semantics in order to avoid the obvious of what these scholars are pointing out.

    Notice how Turley avoids mentioning the correct assumption that private companies are NOT bound to adhere to the 1st amendment. Olly that they should as a matter of principle. Unfortunately Turley can’t really argue that these companies are really required to adhere to the first amendment because clearly, “technically” it only applies to government.

    Turley is applying a poor convoluted defense of his argument by splitting hairs and parsing on semantics.

  6. What are the requirements to be a Law School Professor?

    Background Check? Credit Check? Drug Test? Minimum Grade Point Average in Major and Post Graduate Course work? Written Test on Constitutional Law?

    Or can any Ninny wrangle a job “teaching” Law?

    Some of the Leftists teaching Law and writing OPED’s sure make One wonder if there is more of a secret handshake kind of thing going on than a professional standard being used.

    Asking for a Friend!

    1. What are the requirements to be a Law School Professor?

      Answer: A Diagnoses of ‘Trump Deranged Syndrome’.

  7. Your piece glides over a taken for granted point—that criminality need not anchor impeachment. The powerful policy concern with impeachment living or dying in virtue only of partisan votes is precisely the justification for insisting on anchoring criminality. We have seen, starting with Clinton, impeachment devolve from a grave and awesome remedy to a mere arrow in the political quiver. Now it seems like everybody wants to impeach everybody. Recent Republican talk there has been of impeaching Schumer. The call for Trump’s impeachment began recklessly the minute he took office. There are arguments for and against the need for a base of criminality but the last miserably partisan years of history of impeachment prove the wisdom of the noted policy concern. Today’s actions are tomorrow’s precedents. Those with some say and sway should argue vigorously for a standard for impeachment that demands that criminality anchor it.

  8. “The First Amendment Does Not Apply”

    Let’s discuss other instances where the First Amendment does not (or should not) apply:

    1. When discussing the FACT that the average Ashkenazi Jewish IQ is 115, East Asian 108, White 100, Amerindian 93 and Black 87. The differences persist anyone in the world these groups are found. Around one standard deviation difference exists between whites and blacks on any known test that has valid psychometric predictability.

    2. This difference is between 40 – 80% genetic but no one shows for sure the exact number regarding heritability.

    3. American Blacks while 12% of the population commit around 60% of all crime. A black is 8.2 times more likely to murder a white than the other way around. That is why sweet, tolerant, virtue signaling leftist whites won’t be caught dead in the hood, let alone sending their kids to a school located there. Fortunately for them being a good leftist does not require anyone to get their hands dirty.

    https://www.amren.com/wp-content/uploads/2016/03/Color-Of-Crime-2016.pdf

    4. In 2019, only around 10 unarmed blacks were shot by police officers in the United States.

    5. There were around 40000 black on white rapes in the United States last year, less than 10 the other way around. That is why you don’t see sweet, tolerant, virtue signaling leftist white women in the hood. See #2 above.

    6. Several bar associations have a “speech code” for lawyers. See ABA Model Rule 8.4. Guess the first amendment doesn’t apply to lawyers either.

    Don’t worry leftists, you will get your longed for European style hate speech laws soon enough.

    THEY ONLY CENSOR YOU BECAUSE THEY FEAR YOU. No one is calling for censorship for the Flat Earth Society.

    antonio

    1. Antonio see Anastaplo v Illinois. It is true, the SCOTUS has abdicated from protecting lawyer speech many decades ago.

      and yet read the excellent dissent by Hugo Black. bookmark that for the day they come for your license

      I will have it memorized by the time they come for mine, and relish the chance to say it to bar-censorship-bureaucrat faces

      https://en.wikipedia.org/wiki/George_Anastaplo#:~:text=Anastaplo's%20stand%20was%20based%20on,although%20Justice%20Hugo%20Black%20dissented.

      Sal Sar

  9. Sigh. I weep for us. And I reiterate my gratitude for people like the Professor. This is not good, folks. Hate a person all you like, quite literally changing laws and reinterpreting the founding documents of an entire country to knee-cap one man who did nothing but have an abrasive personality . . . you’ have to be pretty sick. And so we are.

  10. Love it! Took logic courses years ago ( Mid 50s): Nice to see the contra-positive rule used in an argument — now scurry back to find it!

  11. Correct! We adapted it to the poor teachers on the law school faculty. (In those years, 1961-65), the statement didn’t apply to undergraduate faculty.

  12. Chief Justice Roberts has effectively struck down this impeachment trial and conviction of a former president by declining to preside.

    This impeachment trial is patently unconstitutional.

    Why has the Supreme Court, in its entirety, not struck down this impeachment trial?

    1. Because it can grant cert and try disputes but it is not a governing body. Someone with standing (Trump?) could try to get the case heard but it don’t see them enjoining Congress to prevent the trial. That would be too activist.

      1. Congress and the Senate are criminals in high office committing manifest crimes of high office.

        A former president cannot be impeached, tried and convicted by the law; by fundamental law.

        America is now lawless.

        The “safety net” for the U.S. Constitution is the Supreme Court.

        The Supreme Court’s dereliction is deleterious and egregious, destructive and injurious to the Constitution itself, and must, therefore, constitute treason.

        By the action or negligence of the Supreme Court, the U.S. Constitution will persist or desist.

  13. Trump spent months telling his supporters that the only way Biden could (and did) win was by fraud. He spearheaded a massive campaign to lie to the public. He invited the worst of this supporters to DC, told them to be wild, told them that they have to fight to save their country, then watched with approval on TV while they attacked the Capital. While one may be able to make a case that Trump did not cross the line into criminal acts, he most defiantly committed an impeachable offense.

    1. He spearheaded a massive campaign to lie to the public.

      Whereas, following the Costanza rule, MollyG only lies to herself.

      1. I have to keep saying this. While I accept the results of the election, it is hubris to try and assert that there was definitely no fraud.
        What there is at this point, is no credible proof that there was enough wrongdoing to change the final result.
        By the new standard, we should lock up Hillary and Stacey Abrams.

        1. To that end, one of the reasons trump was shocked by the result is that he knew there was ballot stuffing and voter suppression on the part of republicans. He can’t quite understand why it wasn’t enough to throw the election.

        2. People have already been arrested for attempted voter fraud. No informed person would say there’s “no” fraud.

    2. Biden faked victory with the negotiated release of the “China Flu, 2020” biological weapon at the outset of a presidential election year, election law violations, vote count tampering and thumb drives.

      That’s not really kosher, is it?

      Democrats: Political Crime, Don’t Leave Home Without It.

      1. As much as it pains me, he is the legitimate President. The best data at this time makes him so. If we cannot ever settle on the results of an election, we cannot have a republic.

    3. That is some dang potent Kool-aid. LSD? Rufie? If it were arsenic you wouldn’t be posting, so. . . .

  14. There are a lot of issues that are not being addressed. First, those present in Washington, DC that day were there to SUPPORT the existing government, not destroy it. Joe Biden was NOT president, the president was Donald Trump and he would continue to be president for another two weeks. So, there was no “insurrection.” Trespass, maybe – since the Capitol is a public building. However, it appears that someone opened the doors and allowed people to go in. “Incitement”? Just why do “Constitutional scholars” think the First Amendment was enacted in the first place? Remember that many of the former colonists, particularly the fiery Patrick Henry, were fearful of the new government because they feared it would establish a monarchy. Many colonists, particularly Henry for one, had made speeches that were designed to incite violence against their government. What did “Give me liberty or give me death” mean if it wasn’t to incite rebellion against King George? It was only after a promise that led to the addition of the first ten amendments, the Bill of Rights, that most states finally voted to ratify the Constitution in the first place – and one of those rights was the guarantee of free speech, including speech to incite violence. After all, this country rests on violence, a fact Senators would do well to remember. This country is a powder keg ready to blow and they’re holding the match.

    1. They were there to subvert and overturn the election of Biden and install Trump as an unelected president. It was by definition an attempted auto-coup.

        1. Breaking windows in the Capitol, entering through them, bringing weapons in illegally, breaking into offices, carrying flex cuffs to use on members of Congress, … is not a legal protest of election fraud.

      1. They were there not to overturn the election but to Ask VP Pence to delay accepting the electoral until A FORENSIC AUDIT not a phony baloney recount would settle the question of who won the election.Jan 20 is not fixed in stone, Presidents have been sworn in as late as March. Q If you listened to Trump’s conversation with the secretary of state of Georgia, Trump was referring to Georgia’s own analysis of the election. The answer given to President Trump was even though Georgia’s own state department produced the findings they said c they were not verified, and thus (insanely) instead of verifying their own finding of massive election fraud they certified the election results.

        1. January 20 is set by the the 20th Amendment. And there is not provision in federal law or the Constitution to delay the electoral vote count. Quite the opposite the 12A says

          “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.”

          They can not choose to not count certain states votes, they must open and count all of them.

    2. Two daughters of a relative, late 40s, along with the husband of one went to Washington DC to PEACEFULLY show their support for Presidnet Trump. They did so for hours and observed all others doing so PEACEFULLY (praying, talking, etc.) – until the few, the very few engaged in the misconduct that is now attributed to all. They fled when the very few undertook to turn a PEACEFUL day into something 99.999999% of those in attendance had no desire to be a part of and did not take part in. It was theatre enacted by a very few!

  15. According to that group the entire Constitution doesn’t apply. I see the IRS is taxing second check even though it was issued in 2021 instead of 2020. If they do send the $fourteen hundred it still puts the government $600 due and owing from #2 and $600 from #3. Not counting interest on the delay caused by Piglosi.

  16. Lefties should remember this great discussion:

    “William Roper: “So, now you give the Devil the benefit of law!”

    Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

    William Roper: “Yes, I’d cut down every law in England to do that!”

    Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

    ― Robert Bolt, A Man for All Seasons

  17. “The First Amendment does not apply in impeachment proceedings.” If there is a single line that sums up the sense of legal impunity in the second Trump impeachment, it is that line from a letter sent by law professors to deny any basis for the former president to challenge his impeachment on free speech grounds. The scholars call any such arguments “legally frivolous” but only after misstating the argument and frankly employing a degree 𝒄𝒊𝒓𝒄𝒖𝒍𝒂𝒓 𝒍𝒐𝒈𝒊𝒄.” [emphais mine]

    ************************
    To go along with their circular firing squads, it’s their favorite shape.

  18. While attending law school (1965-69), it was clear that a few of the full-time professors showed the truth of the statement “If you cannot practice … teach.” Similarly, some who earned their law degrees about the time I did ended up teaching instead of practicing.

      1. At research universities, professors “do” research as well as teach. Research is what their tenure depends on, not teaching.

    1. My best professors in law school had strong practice experience.

      I will never forget the day after one prof’s client was executed, during my criminal procedure class
      The prof a true liberal had done the last ditch appeal, and failed. What a speech he gave the day after the execution, exhausted, and yet profound

      Also, my constitutional law prof had real First Amendment case experience too. Another principled liberal she was, and a mentor.

      So sad that now liberal have all succumbed to billionaire-funded, Democrat leadership groupthink

      Saloth Sar

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