By Tony Spokojny
Over the last few weeks, we've heard a lot about former President Donald Trump's right to free speech. What he said is not in dispute. Trump refused to concede the November 3 presidential election, and continued to make false declarations over the next two months, to anyone who would read or listen, that he had won the election in a landslide. He then beckoned his supporters to a “Stop the Steal” rally he orchestrated for January 6; “Be there, it will be wild!” he tweeted.
Trump’s efforts grew into a crescendo on the Ellipse near the White House before a horde of followers that day, the same day Congress was convening in the Capitol to certify the election in favor of his opponent, President-elect Joe Biden. “We’re going to walk down to the Capitol,” he exhorted the crowd of worshipers. "We will never concede, we will never give up!” Protestors strenuously clung to Trump's claim of "bullshit.” “Bullshit, bullshit, bullishit," they feverishly echoed, as they dutifully began an invasion of the Capitol, some wearing anti-Semitic clothing, carrying Confederate flags and banners bearing their hero's name.
That speech, and his conduct surrounding it, resulted in Trump's second impeachment -- the only president in American history to twice undergo such a scar on the nation's highest office. Trump stood trial in the Senate for that conduct, even though he was no longer in office when the trial commenced. One of the former President’s defenses to the charge that he had incited the mob is that he had the absolute right to say what he said to the crowd – he was “perfectly” exercising his right to free speech.
The First Amendment of the U.S. Constitution tells us:
Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
We often hear of people claiming, in the name of free speech, that they have the right to say or to write anything they want to others: “Hey, man, I have the right to free speech. This is America!” Yet, while free speech is a right guaranteed by the Constitution, there are limitations.
Supreme Court Justice Oliver Wendell Holmes Jr. made constitutional experts out of all of us when he told us “the right to free speech does not include the right to yell fire in a crowded theater,” causing panic that could foreseeably lead to frantic people getting hurt, desperately trying to evacuate the building. Ironically, though, there is no right at all to yell anything in a crowded theater. Though “Congress shall make no law,” the theater is a private place and it can impose silence upon its customers because it is not a government trying to abridge speech. A moviegoer’s exercise of "free speech" of any kind could get that customer legally expelled from that theater.
Moreover, threatening to punch someone in the nose at a public gathering has landed many “free speakers” in jail for assault, even without the accompanying punch – a threat of immediate violence.
Even true free speech may not be absolutely free, however. Taking a position in public, declaring one’s opinion, wishes, plans, however legal and protected, could legally cost an employee her job. Her employer is not the government. Her free speech may be adverse to the interests of the employer who, in turn, is not required be tolerant of an employee’s pronouncements and is generally free to fire for any reason, absent a relevant anti-discrimination law or a union’s protection. Many professional athletes and broadcasters have lost their jobs and lucrative sponsorships resulting from their exercise of free speech. The employee may take little solace knowing that she is probably able to speak freely as she stands in the government-run unemployment line.
Moreover, social media giants are not the government (although there is legitimate discussion about regulating these companies in a similar manner to television networks). These huge media enterprises are available as platforms for most members of the public. However, Twitter banned Trump, as did Instagram and Facebook, because of his January 6 urgings on the Ellipse. A violation of free speech? Sorry, Donald. Though these companies, who give free access to the public, may be larger than some governments, they are not the government of the United States. A person’s free speech can be curtailed by them.
So Trump’s January 6 speech must be evaluated in that light, The Commander-in-Chief was on the mall telling his most virulent supporters that they must fight, fight, fight (20 times) for their country, for their freedom, for him, for his presidency; amidst a single request for the mob to act "peacefully." He tells them to march to the Capitol to "stop the steal" -- stop the certification of the vote of the electoral college and tells them he will be joining them there. For what purpose?
Should the background of his exhortation be examined?
In the past, Trump has elevated white supremacists attending a “Jews will not replace us march” to "fine people”; he offered to pay the legal fees for those who assault hecklers at his rallies; he has called supporters “patriots” for running a Biden campaign bus off the road and surrounding it threateningly. No one has questioned that his speech in those areas is protected. But, is he aware that violence will follow his speech shortly after? Did he know that words can incite, will incite. his followers to act violently? Or is there enough ambiguity in his speech that it might be determined that he was asking them to continue to “fight” for him peacefully, politically? His defense attorneys displayed a video montage of Democrats urging followers to “fight.” Is there a difference? Of course, in a normal world, we are we able to compare and contrast the speakers’ use of the word. But today we are not living in a normal political world.
The Senate is seated as a jury to make a determination of whether Trump incited this mob to sedition. But, this is not a real trial in the sense of what we know is a criminal or civil trial. In this trial, the accused was known by the jury, known by the defendant, the attorneys, the judge. There was no sworn testimony, no formal submission of evidence. This trial was a presentation of alleged facts and theories to 100 “jurors” with biases and prejudices that would preclude a juror from sitting in a trial before a court of law, some who love the president, some who hate him. In other words, it was known from the outset that it would be very unlikely for the president to be convicted of the charge of inciting an insurrection. It was known that he would be acquitted because there will almost never be a sufficiently large number of senator-jurors from the president's party to determine him to be guilty of the charges.
Trump once gloated that he could shoot someone in the middle of Fifth Avenue and he would not lose supporters. His words were tragically prescient. His use of “free speech” would not be penalized in a trial in this forum.
Will there be any other formal determination of whether the president’s speech was protected by the First Amendment? It is unlikely that he will be indicted for his conduct because the United States has never prosecuted a former president. (Richard Nixon might have been prosecuted after his resignation from office for his participation in the efforts to cover up the break-in at the Watergate, but he was immediately pardoned by his successor, President Gerald Ford.)
The NAACP, however, is suing Donald Trump (and others) civilly, as opposed to criminally, where the guilt standard is “beyond a reasonable doubt,” for his January 6 speech. The NAACP claims that Trump used “intimidation, harassment and threats” to incite a mob and to stop the electoral college vote count. If the suit is allowed to proceed, there will be a formal determination of whether Trump’s speech was protected by the First Amendment, or if it was “fire in a crowded theater.”
Notwithstanding the results of any lawsuit or criminal prosecution of the former president, the issue of Donald Trump’s free speech will be determined by historians and legal scholars who will examine Trump's words as they have examined the words of other Americans accused of incitement to riot, as they have examined the words of other former presidents. Rest assured, most of those scholars will not be his political supporters.
Tony Spokojny has been practicing law in Michigan for over 40 years.