Comment: 1st Amendment may not shield Trump, Jan. 6 mob

Supreme Court precedent protects political speech but not threats or incitement to violence.

By Teri Kanefield / Special To The Washington Post

In a speech last week about the federal investigation into the Jan. 6, 2021, attack on the Capitol, Attorney General Merrick Garland laid down a marker that he is anticipating — and intends to head off — the best likely defense of those who organized and incited the violence, which is that their words and actions were constitutionally protected under the First Amendment.

He similarly indicated that he intends to preempt the claim that any prosecutions of highly placed individuals are politically motivated.

Garland began by letting listeners know that the Justice Department has its sights set on the organizers and inciters of the riot. The department will “follow the money,” he said, to hold “all Jan. 6 perpetrators, at any level, accountable under law.” He then launched into a discussion of the First Amendment: “The department has been clear that expressing a political belief or ideology, no matter how vociferously, is not a crime. We do not investigate or prosecute people because of their views. Peacefully expressing a view or ideology — no matter how extreme — is protected by the First Amendment. But illegally threatening to harm or kill another person is not.” And he mentioned that those who have been victims of violence and threats of violence include members of Congress, election officials, and workers in private industries that serve the public, such as airlines.

Direct threats such as one Garland described against a member of Congress, asking whether she had “ever seen what a 50-caliber shell does to a human head,” are easy to prosecute because they are brutal, direct and straightforward.

Other utterances — even those that do lead to violence — can be harder to prosecute if they are less direct. To take an example of speech that would be harder to prosecute, President Donald Trump called his supporters to Washington on Jan. 6, 2021, and told them it would be “wild.” During the days and weeks before a rally on the Ellipse that immediately preceded the attack on the Capitol, Trump called out Vice President Mike Pence, spreading the lie that Pence had the power to stop the certification of the election. At the rally, he told the assembled crowd to “fight like hell” and that “you’ll never take back our country with weakness. You have to show strength and be strong.” Shortly after uttering these words, Trump directed the crowd to the Capitol and told them (falsely) that he would accompany them. Amid the violence that followed, the rioters erected a gallows and called for Pence to be hanged. Others who planned the rally and called Trump’s supporters to Washington made similar statements.

The legal question is whether Trump intended violence and was making veiled threats against Pence; thereby urging his supporters to intimidate or even attack Pence and other members of Congress. A related question is whether any of those planning the rally intended for the rallygoers to attempt to intimidate members of Congress with violence or threats of violence.

What makes these remarks difficult to prosecute is that the First Amendment does protect speech and the freedom to assemble. Indeed, at Trump’s Senate trial after he was impeached for inciting a riot, he claimed that his words were protected speech under the Constitution. It’s not hard to guess that any organizers of the riot or speakers at the rally will simply assert a First Amendment defense.

Trump wasn’t the only person accused of inciting violence on Jan. 6 who has adopted this strategy. His lawyer, former New York mayor Rudolph W. Giuliani, claimed that everything he said was protected speech in response to a lawsuit brought against him, Rep. Mo Brooks, R-Ala., and Donald Trump Jr. by Rep. Eric Swalwell, D-Calif., accusing them, among other things, of incitement of a riot in violation of D.C. law.

Some of those arrested and charged for storming the Capitol have also raised a First Amendment defense. To take an example, former police chief Alan Hostetter was indicted on charges including conspiracy to obstruct an official proceeding; entering and remaining in a restricted building and grounds; and carrying a deadly or dangerous weapon. In a motion to dismiss the charges, he stated that “in organizing these protests and speaking out against what defendant believed to be the unconstitutional actions of the government, he was acting lawfully and his actions were protected under the 1st Amendment of the U.S. Constitution.”

Justice Department officials, therefore, are fully aware that those accused of planning and inciting the insurrection will raise a First Amendment defense. So Garland, in his speech, issued a warning: We know you will accuse us of bringing politically motivated charges, and we know you will try to shelter behind the First Amendment; and we intend to preempt such claims.

To take an example of how this might be done, constitutional law scholars have argued that Trump’s words, on their face, fell under an exception to the First Amendment carved out by the Supreme Court in Brandenburg v. Ohio. Under the standard given in Brandenburg v. Ohio, Trump’s remarks were “directed to inciting or producing imminent lawless action and … likely to … produce such action.”

We already know from Trump’s impeachment trial that his counterargument will be that he said things like “be peaceful” and later said he wanted there to be “no violence,” which he would argue proved that he didn’t in fact intend violence, making his words protected speech. We can expect similar arguments from others involved in planning and inciting the insurrection.

During the past week, we’ve had hints that the House committee investigating the insurrection is gathering evidence that rebuts Trump’s claim that he said “be peaceful” so therefore he meant “be peaceful.” We learned, for example, that a former White House staffer told the committee Trump resisted adding “stay peaceful” to one of his tweets during the insurrection and was “very reluctant to put out anything when it was unfolding.” Instead, while watching the violence on television, Trump was deliberately “letting it play out.” Former White House press secretary Stephanie Grisham, who was chief of staff to the first lady on Jan. 6, 2021, also told CNN Thursday that Trump was “gleefully” watching television coverage of the riot. In other words, investigators are collecting evidence to rebut the First Amendment claims they are anticipating.

So those planning to use the First Amendment as a defense should hear in Garland’s speech a warning: The department respects their right to say what they want and hold whatever views they wish. But their First Amendment rights do not permit threats of violence or incitement of violence.

Teri Kanefield is an author and a graduate of the University of California Berkeley School of Law. For 12 years, she maintained an appellate law practice in California.

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