Susan Estrich 2020

Perhaps the most famous quote about the First Amendment — one that is often garbled and is sure to be dissected in the upcoming impeachment trial — comes from former Justice Oliver Wendell Holmes, writing for a unanimous Supreme Court in Schenck v. United States: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

In other words, the First Amendment is not absolute, and speech that presents a clear and present danger of inciting violence is not protected by the First Amendment.

It’s a great quote, but problem is that it was said in a case that had nothing to do with inciting a panic in a crowded theater. Charles Schenck was an officer of the Socialist Party of America, and his crime was not inciting violence but writing and distributing a leaflet calling for the repeal of the draft law during World War I. The court ruled that the leaflet was a violation of the Espionage Act.

Forty years later, after Justice Holmes issued a string of dissents in post-Schenck cases involving peaceful protests, the court finally overruled Schenck. In Brandenburg v. Ohio, decided in 1969, the court held that inflammatory speech, even speech by Ku Klux Klan members calling for violence, was protected by the First Amendment unless that speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Or, as courts often paraphrase it, speech that presents a clear and present danger of inciting imminent lawlessness is not protected by the First Amendment.

Senators are bound to uphold the Constitution and laws, but impeachment is a political process not a legal one, and no court can reverse its conclusion.

The bigger problem for former President Donald Trump could come in the courts. Unlike Schenck, in the president’s angry speech to demonstrators on the National Mall, he specifically told them to head for the Capitol and stop the vice president from letting the certified votes be “counted” by Congress.

If his speech and the violence that resulted when the mob followed his direction is not enough to convince a prosecutor to indict or a jury to convict, then his action after the violence began seals the deal against him, as a matter of law if not politics. Multiple accounts of that terrible day include desperate efforts by Trump’s senior staff to get him to tell the demonstrators to stop.

He refused, repeatedly. When he finally did release a statement, on that very day, it was to commend those who had invaded the Capitol. “We love you,” he told them. “We” being him. Trump will hide in Florida while his newest team makes First Amendment arguments that simply don’t hold up.

I’ve taught criminal law and First Amendment law for decades. If I were to use the president’s actions as a hypothetical and ask, “What crimes?” it would be a little too easy for my first-year students.

Accomplices, before and after the fact, may be punished as severely as or more so than the individual actors. Complicity is easy. So is felony murder, which holds that those who commit a felony are responsible as murderers for any deaths that result, including the death of a protester, not to mention the death of a Capitol Police officer. And I haven’t even gotten to conspiracy or to the even broader prohibitions of the racketeering statute, RICO, which comes with huge penalties.

All it would take is a prosecutor, perhaps one of the new people working for Judge Merrick Garland, who is very tough on crime, or perhaps one of the new U.S. attorneys, all of whom will soon be Democrats. Trump can hide from the Senate, but the more he succeeds, the greater the likelihood that his problems will not end there.

SUSAN ESTRICH is a lawyer and political commentator.

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