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.