Tuesday, January 12, 2021

Don't Ask Whether Trump Falsely Cried "Fire" In A Crowded Theater. Ask Whether He Tried To Start A Reichstag Fire

 by Michael C. Dorf

Among the most foolish ideas circulating right now is that Donald Trump cannot be impeached and removed for his role in fomenting an insurrection aimed at Congress because he engaged in constitutionally protected freedom of speech. The idea is foolish for at least three reasons:

(1) Conduct, including conduct accomplished through speech, need not be criminal in order to be the basis for a valid impeachment. Even Trump's apologists acknowledged as much during the hearings over Trump's first impeachment. So, if we assume arguendo that Trump cannot be criminally prosecuted for his role in inciting the insurrection, he can nonetheless be impeached, removed, and disqualified from holding office in the future based on his outrageous assault on democracy up to and through January 6.

(2) But let's be clear that this is at best an arguendo assumption. We don't yet know the full extent of Trump's role behind the scenes both before and during the assault on the Capitol. As Prof Philip Bobbitt writes persuasively, perhaps the most plausible account of Trump's conduct was that it formed part of a plot to create sufficient violence and chaos so as to give him a pretext to declare martial law and refuse to give up power. Legal scholars and other observes are asking whether he crossed the line from lawful advocacy to something like Holmes's man falsely crying "fire" in a crowded theatre. The more relevant question is whether Trump's provocation was part of an effort to create a Reichstag fire.

(3) Even taking an unduly narrow and lawyerly view of the matter, Trump did commit a crime that could be the basis for both criminal prosecution as soon as he is out of office and impeachment, removal, and disqualification now. The key precedent is Brandenburg v. Ohio, which, like the January 6 insurrection, featured white supremacists and antisemites. It states the following legal standard:

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The language after "except" is a pretty good description of what Trump did on January 6.

The Brandenburg opinion is quite short, but the cases it cites and subsequent cases in the Supreme Court and especially in the lower courts make clear that it retains, as one would expect, sensitivity to context. If a mother says to two of her three sons "get him, boys" in reference to her infant son who is about to stick his hand on a hot stove, she is not guilty of incitement. In context, a competent speaker of English understands that she intends her older boys to get him to safety. By contrast, if in the course of a Klan meeting, the grand wizard says to his already-inflamed audience, "get him boys" in reference to an African American man being held captive on trumped-up charges, and the hooded boys proceed to lynch the captive, the grand wizard can be prosecuted for inciting murder without any offense to the Constitution.

Prof Ira (Chip) Lupu described the relevant context of Trump's role in inciting the January 6 insurrection in an email to me. His description includes the following key elements:

prior remarks by [Trump]; known warnings that the crowd was prepared for violent action; prominence and status of the speaker; utterances that immediately preceded (Brooks and Giuliani) his; and the inciter's conduct as the violence proceeded (including praise and encouragement of rioters; continued efforts to pursue the plot, through calls to Tuberville and perhaps others to keep objecting to electors; and in this case failure to take immediate corrective action. It is not many inciters who are in a position to end the violence by calling in law enforcement. This one failed and refused for hours.) All of this goes to show his intent to produce the violence, and not just his careless indifference to it.

I agree with and endorse Prof Lupu's analysis. Although the full scope of Trump's acts of perfidy are not yet and may never be known, we know more than enough to reject any suggestion that the First Amendment stands as an obstacle to the impeachment, removal, and permanent ineligibility for further office holding of Donald Trump.


Postscript: Trump is a veritable volcano of novel constitutional questions. He has pushed the edge of--no,  torn open--more envelopes than many of us were even aware existed. Before Trump, how much thought had you given to the Emoluments Clauses? To whether a President can pardon himself? Before last week, when was the last time you thought about Section 3 of the Fourteenth Amendment? Whether an ex-President could be impeached? Etc.

Among the constitutional foundations that Trump's outrages have shaken are doctrines concerning the First Amendment. We can and should discuss whether and how the law should be modified to take account of the ability to spread lies through social media bubbles. Threats are another problem. My co-blogger Prof Segall has written thoughtfully about whether the imminence requirement and other elements of the free speech law governing incitement and true threats should be reassessed in cases of targeted threats via the Internet.

We should even consider the valid points that are related to the completely opportunistic, disingenuous, and malicious claims by the likes of Trump supporters attacking Twitter and Facebook or Senator Hawley, who claimed, falsely, that the cancellation of his book contract violated the First Amendment. Trump and his supporters may not know any better, but Hawley surely knows that the First Amendment doesn't apply to private actors. Nonetheless, just as wisdom can come from the mouths of babes, so it can come from the mouths of narcissists and demagogues. Since at least Louis Brandeis, progressives have argued for the application of public norms to powerful oligopolistic private actors. Some democratic countries (like Germany) give "horizontal effect" to their constitutional norms. We might consider legislation doing something similar in the U.S.

But now is not the time to tweak free speech doctrine for normal times. In peaceful periods, you might think about relocating the fire pole or reorganizing the firehouse. Not when you're battling a three-alarm blaze. Last week we just barely put out a fire. Arsonists intend to descend on Washington and state capitals in the coming week and a half. The Arsonist in Chief still sits in nominal command of our firefighters. Let's focus on the immediate peril for a little while longer.


  1. I like the Reichstag fire analogy. The German government used the Reichstag fire as a pretext to severely curtail civil liberties. I hope our government avoids the temptation to follow that example, but I am skeptical of their ability to do so.

  2. At this point, criminal prosecution after Trump leaves office (by either means, impeachment and removal, or running out the clock) is probably more important than whether he is impeached again. The temptation is always great for new administrations to try to turn the page and not look back on past administration's malfeasance. New presidents understandably don't want their agenda and accomplishments to be overshadowed by a fixation on what will happen to the last president and his officials. Ford fell victim this temptation and tried to "heal" the nation (somehow) with pardon for Nixon. Obama, too, faced questions early in his administration what, if anything, Bush or his administration officials could face for torture programs or other misconduct. But this quest for healing or unity without accountability for prior administrations seems to be emboldening future presidents. The way to reign this in would be for a new president to be sworn with a fresh memory of a past president photographed on a perp walk.

  3. Professor, if I may express my views in short, quoting you in part, from some time ago...'sputtering rage...', is what I feel.
    My take on this today is that the Joint Session of Congress was violated by an attack and seizure of the United States Capitol Building; as far as I know there was not time to gavel a recess, before members where rushed to secure locations. This was an overthrow - a coup? - for some 2 hours. (good they re-grouped and continued)
    Impeachment and criminal liability are the necessary response. The government was halted by force; and the response should be swift. The Constitution, the integrity of the United States Capitol Building, that no one may stop the lawful conduct of Legislative proceedings by force, the rule of law, and that no one is above the law must be vindicated.
    As I am at the 'considering the issue' stage, not having settled even on an opinion yet; my thoughts are directed to considering the 'conspiracy issue'. So, I will adopt a 'just asking' stance with regard to this.
    So, on January 6, did the several speakers addressing the crowd, and urging actions, including Giuliani and his exhortation, amount to a conspiracy to incite violence?
    Next, did the speakers and the crowd by following the directive to head for the Capitol amount to a conspiracy?
    Later, as the the Capitol was as I see it invaded(akin to a 'home invasion'), burgled, and vandalized amount to a conspiracy of all of those that entered by force; including those that were at the back of the pack when the windows and doors were 'broken' by their entering?
    And so, does all of this tie back to the 'incitement speeches'- I appreciate your review herein - making the speakers part of a conspiracy, therefore as liable as those that seized the building, halted government, destroyed property, and caused injury and death?
    I do not know the answers. For me this continues to sink in. The imagery of some 15,000 troops on the streets is something I do not want to see. It conjures a different kind of country, likened to one controlled by the military.
    In my view, added to the horror of the images of January 6, and the 'black eye' it gave to 'Lady Liberty'- like an innocence lost; is also that it has 'shaken our ability to hold ourselves out as the premier example of 'A Peaceful Transfer of Power' through democratic order.
    As I started...'sputtering rage'...and I hope for the best. I hope there is not more to come.

  4. Couple of points:

    1. Reichstag Fire analogy goes both ways. Are purges of Twitter etc really a result of riot or is that an excuse? Generally better to avoid 1930s analogies altogether

    2. Same for Hawley. His book is about Big Tech. Moreover his objections were raised in a legal, constitutional matter. Bad precedent

    3. “If you strike at the King you must kill him.” The left is now declaring a full-scale war against Trumpistas who are perhaps 30-40 percent of the population. What if they lose?

    Sorry brief comments my keyboard is broken.

  5. I think Prof. Dorf's column is good but for me I think there is already pretty good evidence that there is a collection of actions, a pattern of things, that were happening for which Trump and his immediate conspirators had a part in. The details -- like with the Mueller Report -- will only come out in time & we won't find them all out.

    I think impeachment and more (including for members of Congress who did things like shake their fists in support of the protestors, tweeting details as events were going including where Pelosi was, didn't wear masks and so forth) is in significant part about the future. Some line has to be drawn. And, this also is a matter of some (talk of 10-20) people not on the left (or a better term for many Democrats who aren't very left-y), that is Republicans, actually joining to draw a line.

    We can talk about levels of importance here too, yes, and the 14A provision can provide additional potential for action. Trump's whole involvement would factor in there too.

  6. It’s a bit ironic to me that Trump supporters are suddenly so pro-regulation in this private space. It was Trump who got rid of net neutrality, which would at least have been a framework to consider such complaints*.

    *Although “cloud neutrality” is admittedly a different thing (relating to Parlor and AWS). Still, net neutrality was always going to evolve.

  7. This subject covered in the House Judiciary Committee Report


    Two references to Dorf on Law as well.

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