D. Free Speech
The First Amendment exists to protect our democratic system. It supports the right to vote and ensures robust public debate. But rights of speech and political participation mean little if the President can provoke lawless action if he loses at the polls. President Trump’s incitement of deadly violence to interfere with the peaceful transfer of power, and to overturn the results of the election, was therefore a direct assault on core First Amendment principles. Holding him accountable through conviction on the article of impeachment would vindicate First Amendment freedoms—which certainly offer no excuse or defense for President Trump’s destructive conduct.
Most fundamentally, the First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office. Therefore, as scholars from across the political spectrum have recognized, the First Amendment does not apply at all to an impeachment proceeding.[1] The question in this case is not whether to inflict liability or punishment on a private citizen; instead, the Senate must decide whether to safeguard the Nation’s constitutional order by disqualifying an official who committed egregious misconduct. As one scholar writes, “the First Amendment does not shrink the scope of the impeachment power or alter what conduct would fall within the terms of high and misdemeanors.”[2]
Indeed, the notion that a President can attack our democracy, provoke violence, and interfere with the Electoral College so long as he does so through statements advocating such lawlessness would have astonished the Framers. They wrote the impeachment provisions of the
- ↑ See Michael C. Dorf, Free Speech, Due Process, and Other Constitutional Limits in Senate Impeachment Trials, Dorf on Law (Jan. 20, 2021, 7:00 AM); Keith E. Whittington, Is There A Free Speech Defense to an Impeachment?, Lawfare (Jan. 19, 2021, 4:18 PM); Jonathan H. Adler, Yes, Congress May Impeach and Remove President Trump for Inciting Lawless Behavior at the Capitol, The Volokh Conspiracy (Jan. 8, 2021, 3:21 PM); Ilya Somin, The First Amendment Doesn't Protect Trump Against Impeachment for his Role in Inciting the Assault on the Capitol, The Volokh Conspiracy (Jan. 8, 2021, 4:17 PM);
- ↑ See Keith E. Whittington, Is There A Free Speech Defense to an Impeachment?, Lawfare (Jan. 19, 2021, 4:18 PM).
