Some have called for Goldman to be investigated by the Secret Service. Others have called for a censure resolution. I do not agree. It was clearly reckless rhetoric and not a true threat.

Yet, the incident shows how inflammatory terms are often used in politics. In the very same sentence in which Goldman denounced “dangerous” rhetoric, he proceeded to use dangerous rhetoric.

Rep. Goldman has been one of the most vocal voices for prosecuting incitement based on such language. In an interview with NPR, Goldman (who was counsel in the Trump impeachment) defended the use of such rhetoric as the basis for impeachment or prosecution:

“there’s all sorts of speech that is criminalized. You can’t – you know, you can’t use hate speech. You – people – in all sorts of crimes. You can’t send death threats across, you know, the Internet. There are so many criminal laws that do criminalize speech, and so the notion that the president of the United States somehow has a First Amendment right to be protected by the government for his speech doesn’t make any sense. It’s a backwards argument, and it’s a loser.”

As a threshold observation, the interview shows how dangerously ill-informed Goldman is on the First Amendment. He claims, as have other Democratic members, that “you can’t use hate speech.” That is demonstrably and completely wrong. Hate speech is protected under the First Amendment. You cannot commit hate crimes.

Indeed, in Brandenburg v. Ohio, a 1969 case involving “violent speech,” the court struck down an Ohio law prohibiting public speech that was deemed as promoting illegal conduct. It supported the right of the Ku Klux Klan to speak out, even though it is a hateful organization. Likewise, in RAV v. City of St. Paul in 2011, it struck down a ban on any symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” In Snyder v. Phelps, also in 2011, the court said the hateful protests of Westboro Baptist Church were protected.

I have previously criticized the calls to criminalize Trump’s Jan. 6th speech as inimical to free speech. On Jan. 6, I was contributing to the coverage and denounced Trump’s speech while he was still giving it. I have long criticized Trump’s inflammatory rhetoric as well as similar rhetoric coming from the left. However, the calls for criminal charges ignore the danger to free speech.

While Trump used language like going to “fight” for his cause in the protest on the Hill, he never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers “to peacefully and patriotically make your voices heard.”

If Trump called to “eliminate” Pence or Pelosi, it would have no doubt been added to calls for prosecution. Indeed, Harvard Professor Laurence Tribe even declared Trump guilty of the attempted murder of Vice President Mike Pence on January 6, 2021. Even though no prosecutor has ever suggested such a charge, Tribe assured CNN that the crime was already established “without any doubt, beyond a reasonable doubt, beyond any doubt.” Others have suggested premeditated murder charges in his unhinged environment.

I am glad that Rep. Goldman apologized and I wish Trump would have retracted some of his prior language. However, rage rhetoric is a reality in our contemporary politics. We need to continue to denounce it on both sides, but it will produce even greater costs if we cross the Rubicon into criminalizing political speech.