Capitol cop Brian Sicknick – what remains of him – is being honored this week in the Rotunda. He was pummeled to death with a fire extinguisher because the insurrectionist-in-chief had supposedly exercised his “freedom of speech.”
Yes indeed, Trump’s new lawyer duo (the guy who refused to prosecute Bill Cosby, and the guy who was set to defend Jeffrey Epstein) are arguing, in a legal brief submitted for the imminent Senate trial, that their client was merely flexing his First Amendment rights when he incited his mob to storm the Capitol and get people killed.
I’ve read their brief. I’m not a lawyer, but I know more than enough about First Amendment law to recognize the odor of excrement when it stings my nostrils.
They’re basically arguing that everyone in America has the right to say publicly whatever they want in all circumstances, that the Constitution protects all “free political speech,” that Trump deserves protection just as much as anyone else, and that he shouldn’t be victimized just because the words he spoke are not “deemed popular in current American culture.”
Since when has it ever been “popular in American culture” to incite deadly violence against the democratic process? I’ve consulted my college Constitutional Law textbook, still on the shelf after all these years, and it took me 10 minutes to conclude that the Trump lawyers’ “free speech” argument is a crock.
Put simply, not all speech is protected. The U.S. Supreme has repeatedly made that clear. In a 1949 ruling, Terminiello v. Chicago, the court said that even though the First Amendment protects robust and divisive speech that gets people angry, there are still limits. Speech is not protected if it is “shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience.”
Ask yourself whether a president – speechifying a Big Lie, inspiring a mob to breach the Capitol and kill people in a failed bid to stop the certification of a free and fair election – deserves the First Amendment’s blessing. Ask yourself whether what happened at the Capitol meets the definition of “a serious substantive evil.”
That kind of incitement has long been excluded from First Amendment protection. In a 1969 ruling, Brandenburg v. Ohio, the high court said that punishment is fully warranted when public speech is “directed to inciting imminent lawless action and is likely to produce such an action.” In a 2003 ruling, Virginia v. Black, the court said that freedom of expression is not absolute, not when “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence”; indeed, the speaker “need not actually intend to carry out the threat.”
Trump’s lawyers claim in their brief that what their client said on Jan. 6 was no big deal and well within the parameters of acceptable free speech. But even if we somehow ignore the fact that Trump was yelling “fraud” long before the election was even held, ginning up his rabble way back in September by refusing to commit to a peaceful transfer of power, and tweeting in advance about a Jan. 6 showdown (“Will be wild!”), his directive on that bloody day constituted a clear and present danger:
“We’re going to walk down to the Capitol…You’ll never take back our country with weakness. You have to show strength and you have to be strong…Confront this egregious assault on our democracy…Give our Republicans, the weak ones…the kind of pride and boldness that they need to take back our country.”
Trump lit the flame that put Brian Sicknick’s ashes in a box. Any effort to cloak his action in the First Amendment is a grotesque perversion of what the Founding Fathers bequeathed us. Most Senate Republicans are predictably fine with exonerating Trump a second time, but we – the voting majority – will still have the power to prevent the ascent of any future fascist who aspires to yell fire in a crowded theater.