Impeach Trump, But Not for What He Said on January 6th

by Jonathan Zimmerman

Jonathan Zimmerman teaches education and history at the University of Pennsylvania. He is the author of The Amateur Hour: A History of College Teaching in America, published by Johns Hopkins University Press. He is the co-author (with Signe Wilkinson) of Free Speech, And Why You Should Give a Damn, which will be published in the spring by City of Light Press.

Donald Trump was impeached on Wednesday for the second time, and rightfully so. As the House of Representatives charged, Trump “threatened the integrity of the democratic system,” “interfered with the peaceful transition of power,” and “betrayed his trust as President.” He should be convicted by the Senate and barred from ever holding office again.

But is Trump also guilty of “incitement of insurrection,” to quote the title of the House’s lone article of impeachment? I don’t think so. Terms like that have been weaponized across our history to suppress dissent, especially when it comes from the Left. My fellow liberals should be wary of invoking these words now, even for a cause as just as the removal of President Trump.

Consider the fate of Charles Schenck, the secretary of the Socialist Party in Philadelphia during World War One. Schenck was arrested and convicted for circulating flyers urging draft resistance. His sentence was upheld by the Supreme Court in 1919 when Justice Oliver Wendell Holmes famously argued that Schenck’s advocacy was tantamount to falsely shouting fire in a crowded theater. It represented a “clear and present danger” to the nation’s wartime effort, Holmes said, so the government had it shut it down.

Holmes would come to regret his ruling in that case, which could be used to censor almost anything. Just a few months later, the court upheld the conviction of protesters who had distributed flyers condemning the American invasion of Russia during the Bolshevik Revolution. Holmes believed that these leaflets—unlike Schenck’s—didn’t pose a clear danger to the war effort. But he was in the minority this time. The government had a new hunting license, and it was declaring open season on free speech.

During the 1950s, hundreds of Americans were jailed, harassed, or hounded out of their jobs for prior or current affiliation with the Communist Party. In Texas, joining the Party was punishable by 20 years in jail; in Michigan, the penalty was life in prison. The justification was the same one that censors always use: Communist speech could cause harm, especially during war. We were fighting a Cold War rather than a hot one, pitting the United States against the Soviet Union in a global battle for hearts and minds. But that was all the more reason to suppress speech, lest anyone on our side consider joining the other.

Only in the 1960s and 1970s would America finally start to protect the right to dissent. As protest against the Vietnam War swelled, the Supreme Court overturned the arrest of 19-year-old Paul Cohen for wearing a jacket that bore the words “F___ the Draft.” Charles Schenck couldn’t have gotten away with that. But now Paul Cohen—and the rest of us—could.

Read entire article at Washington Monthly