By Judge Andrew P. Napolitano
Former New Jersey Governor Chris Christie offered his understanding last weekend of President Donald Trump’s alleged role in the Capitol riots when he said, “If inciting to insurrection isn’t impeachable, I don’t know what it is.”
He must have been addressing the political, ethical, practical and emotional implications of Trump’s exhortations to the crowd. Christie knows that the Constitution expressly requires that the House of Representatives have evidence that the president committed a crime before it can impeach him.
Did Donald Trump commit a crime by exhorting the crowds on Jan. 6? In a word: No.
Here is the backstory.
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Any analysis of the criminal implications of speech must begin with the plain language of the First Amendment which reads in part: “Congress shall make no law … abridging the freedom of speech.” James Madison, who drafted the Bill of Rights, insisted that the article “the” precede the word “freedom,” as in “the freedom of speech,” so as to make it manifestly clear that those who proposed and ratified the First Amendment recognized that the freedom of speech preceded the existence of the government.
To the signers of the Declaration of Independence and the ratifiers of the Constitution and the Bill of Rights, the freedom of speech, along with other freedoms, is a natural right because it comes of our humanity, not from the government.
I recount this brief history and offer this philosophical nuance because the freedom of speech is supposed to be a bulwark against prosecutions for speech. Thomas Jefferson once argued that so long as the speaker neither picked his pocket nor broke his legs, all the speaker’s words are protected. Stated differently, before anyone can be prosecuted for speech, the court must find that there is no legitimate, nonviolent purpose to the speech and no time for the listeners to hear countervailing speech.
That was the understanding of the freedom of speech at the creation of our republic.
Sadly, that understanding gave way to the exercise of raw power animated by the fear of losing power when Congress, in 1798, during the presidency of John Adams, enacted the Alien and Sedition Acts. One of those acts made it a crime to utter “false, scandalous, or malicious” speech against the government or the president, or to utter speech in opposition to the government’s efforts to shore up defenses from a war with France that never came about.
It is hard to accept that some of the same human beings who ratified, “Congress shall make no law … abridging the freedom of speech” also enacted laws that abridged speech. But they did.
Eventually, Jefferson defeated Adams for president and the federalists in Congress repealed the anti-speech portion of their own acts, lest the Jefferson administration have it available for repression against them. That was hardly necessary as Jefferson pardoned those who had been convicted under Adams for uttering speech in violation of the acts.
Regrettably, the history of free speech in America is not the history of patient governmental tolerance. Rather, it is the history of the government violating the First Amendment.
Even in the present era, the so-called Patriot Act of 2001 forbids the recipient of a nonjudicial search warrant (a warrant for which one federal agent has authorized another to search business or financial records in the custody of a record keeper, such as a physician, bank or lawyer, in violation of the Fourth Amendment) from using speech to tell anyone about the receipt of the warrant.
From time to time, the Supreme Court has entered this gloomy picture in an effort to define just how far one can go with uttering words that the government hates or fears. Its most significant modern advance came in a unanimous opinion in 1969, called Brandenburg v. Ohio. In that case, Clarence Brandenburg, a KKK leader, set out to incite violence against Jews and Blacks in Washington, D.C.
But he did so by encouraging violence at a rally in Hamilton County, Ohio. Though he acknowledged that violence was his purpose, he claimed his words were protected political speech. He was convicted under an Ohio law that prohibited inciting violence — even though the violence never came about.
The Supreme Court reversed his conviction, holding that it violated the First Amendment. The court ruled that all innocuous speech is absolutely protected and all speech is innocuous when there is time for more speech to rebut it — before the harm that it advocates comes to pass. Since Brandenburg spoke in Ohio and the violence he sought to foment was to have occurred in Washington, there was time for saner heads to utter speech rebutting his hateful words.
Now back to the president’s words on Jan. 6. President Trump has been accused of inciting violence by saying: “Get ready to fight”; “It’s going to be wild”; “Fight for Trump”; “Fight much harder”; “Get rid of the weak congresspeople”; and, later, “We love you.” The president’s speech ended at 12:45 p.m. and the Capitol was first breeched at 2:15 p.m.
The essence of criminal incitement is immediacy. On Jan. 6, because there was time for more speech to rebut what the president said, his words are protected. He cannot be prosecuted or even sued for them. If he were impeached for uttering words that are not obviously criminal, Congress would be violating the Constitution.
I write this as a constitutional analysis, not a political one. The First Amendment protects the speech we hate and fear. It even protects the speech that harms. The remedy for harmful speech is not punishment; it is more speech. The courts know this. Congress needs to know it as well.
COPYRIGHT 2020 ANDREW P. NAPOLITANO
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