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Trump acquitted in Senate impeachment trial that hinged on free speech fallacy
The senators who bought Trump’s First Amendment defense have given future presidents permission to try to succeed where Trump failed.
Trump’s lawyers contorted two Supreme Court cases to suggest the First Amendment applies to impeachment. They were wrong.Anjali Nair / MSNBC; Getty Images
Feb. 13, 2021, 9:55 PM UTC
Impeachment lawyers for Trump closed their defense by arguing, in large part, that his speech on the Ellipse on the morning of Jan. 6 is protected First Amendment speech. They conclude, as a result, that he cannot be impeached. This is incorrect. The First Amendment isn’t a defense to impeachment proceedings, like it could be to criminal charges. Even if it was, Trump wouldn’t be entitled to it.
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Explainer: Could Trump Be Prosecuted For Inciting The Attack On Capitol Hill?
U.S. President Donald Trump is unlikely to face criminal charges in connection with the violent siege on the U.S. Capitol last week because of the country s broad free speech protections, some legal experts said.
FOLLOW US ON: U.S. President Donald Trump is unlikely to face criminal charges in connection with the violent siege on the U.S. Capitol last week because of the country’s broad free speech protections, some legal experts said.
Here’s an explanation of why lawyers, including ones who think Trump should be impeached for his remarks, say such a case would be an uphill battle for prosecutors.
In 1964, an Ohio Ku Klux Klan leader named Clarence Brandenburg told a Cincinnati-based reporter that his hate group would soon be holding a rally in a rural area of Hamilton County. In the filmed portions of that rally, which later became the focus of legal prosecution, robed men, some with guns, could be seen burning a cross and making speeches, infamously demanding “revengeance” against blacks (they used another word, of course), Jews, and the white politicians who were supposedly betraying their own “caucasian race.” They also revealed a plan for an imminent march on Washington, DC.
In American First-Amendment jurisprudence, Brandenburg’s name is now a byword for the test that is used in assessing the validity of laws against inflammatory speech especially speech that can lead to the sort of hateful mob activity that played out at the US Capitol last Wednesday.