Law Profs: First Amendment Hurdles to Trump Prosecution Real, Not Insurmountable

Yesterday the House January 6 Committee unanimously voted to recommend that former President Donald Trump be criminally prosecuted, for charges including conspiracy to defraud the United States, obstructing an act of Congress, and, the most serious, insurrection. A congressional criminal referral of a former president is unprecedented, and if Special Counsel Jack Smith and the Department of Justice decide to prosecute Trump, they will have to address a formidable defense: that Trump’s speech on January 6, 2021, no matter how irresponsible or how full of lies about a “stolen” 2020 election, was, after all, a political speech and thus protected by the First Amendment.

Prominent legal scholars—and one lower-court judge—have rejected that argument, countering that Trump’s speech, in which he urged his supporters to march to the Capitol and “fight like hell,” was sufficiently inflammatory to permit criminal prosecution. But this is too sweeping, and gives insufficient weight to the First Amendment concerns that prosecuting Trump for his actions that day would raise.

We believe that the government can prosecute Trump for his speech, but it must proceed very carefully to avoid risking the criminalization of legitimate political expression. The way to do this is for the evidentiary bar to be set appropriately high: Specifically, in cases where a speaker plausibly but ambiguously advocates lawlessness, the government should be required to show that the defendant took additional “overt acts,” beyond making the speech itself, that furthered violence. (We explain this balanced approach for prosecuting political speech—whether for incitement, obstruction, fraud, or insurrection—in greater detail in a forthcoming law-journal article.)

For more than half a century, the Supreme Court has sharply limited when speech can be criminalized. In the 1969 criminal case Brandenburg v. Ohio, the Supreme Court declared what is now the canonical two-part test for punishing inciting speech: First, the speech must be intended to “incit[e] or produc[e] imminent lawless action,” and second, the speech must be “likely to incite or produce such action.” This test is meant to be highly protective of speech; for example, in a later civil case, the Supreme Court held that a boycott organizer’s threat to “break [the] damn neck” of boycott evaders was protected because, as the Court later explained, this speech was insufficiently tied to a specific act and instead “amounted to nothing more than advocacy of illegal action at some indefinite future time.”

Trump would have a strong argument that his speech does not pass the stringent Brandenburg test. First, he could argue that he never explicitly called for violence, and that his exhortations to the crowd to “fight” (a word he used nearly two dozen times in the speech) were merely metaphorical. Second, he could point to language in the speech that urged the crowd to march “peacefully and patriotically” as evidence that his speech explicitly rejected violence and could not reasonably be understood as endorsing lawlessness. Another appellate court has adopted this more forgiving approach to Trump’s language, ruling, in a civil lawsuit by protesters injured at a Trump rally, that Trump could not be held liable for urging his supporters to “get [protesters] out of here,” because Trump did not explicitly call for violence and even told the crowd, “Don’t hurt ’em.”