Why do different positions in the government receive different types of free speech rights?

[This post is co-authored with Seth Barrett Tillman.]

Let's take a step back from the specific context of impeachment. In this post, we'd like to discuss a more foundational question: as a general matter, why do, or why should, different positions in the government receive different levels of free speech rights? 

The House Judiciary Committee report took the position that the President's free speech rights are more limited than the rights of a private citizen. The report favorably cited posts by co-bloggers Professors Jonathan Adler and Ilya Somin, as well as other academics who reached similar conclusions. The Committee apparently assumed that the President's free speech rights could be analogized to those of civil servants. The committee staff reported that the First Amendment "applies very differently to speech by government officials and public employees," and the President "is no ordinary citizen." The report continued, "the President is subject to different rules than private citizens and can be held accountable for his expression (including all expression relating to his office) in ways that [private citizens] cannot be." In our view, there are problems with analogizing the President to civil servants. In this post, we will explain our thinking. Our views concern First Amendment rights in general, and not the circumstances of the impeachment process in particular. But our general position would also apply in the specific impeachment context.

In cases like Pickering v. Board of Education (1968) and Garcetti v. Ceballos (2006), the Supreme Court explained that certain governmental employees have reduced free speech rights in certain contexts. This doctrine is a branch or application of the First Amendment. In Garcetti, Justice Kennedy summarized the doctrine: 

Pickering provides a useful starting point in explaining the Court's doctrine. There the relevant speech was a teacher's letter to a local newspaper addressing issues including the funding policies of his school board. "The problem in any case," the Court stated, "is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." The Court found the teacher's speech "neither [was] shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally." Thus, the Court concluded that "the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public."

Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.

For decades, the Pickering test has been subject to widespread criticism. This balancing test is difficult to apply in many different contexts. Justice Kennedy recognized this difficulty in his opinion: 

To be sure, conducting these inquiries sometimes has proved difficult. This is the necessary product of "the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors … to furnish grounds for dismissal." The Court's overarching objectives, though, are evident.

What would it mean to apply Pickering to the presidential impeachment process? Is the presidency analogous to the status of a civil servant? Our view is that the reduced free speech rights standards announced in Pickering should not apply to elected officials. Indeed, Pickering did not involve a constitutional claim brought by an elected official. Rather, this case involved free speech claims brought by a government employee--a public school teacher. This position was not subject to election.

As a general matter, we think it is a mistake to analogize the President, an elected official, to a full-time, permanent employee or civil servant. Elected public officials make policy; civil servants and other public employees carry out those policies. The case law permits the civil servants' speech to be muted so that the government-as-employer can carry out its policy goals. The goal is to ensure that elections remain meaningful, and that the government-as-employer can put forward its message, notwithstanding its employees who may take a different view. We do not suggest that the Pickering line of cases was correctly or incorrectly decided. Our point is more limited: Pickering offers civil servants some free speech protections, but it also allows the government-as-employer to impose some free speech limitations on its civil servants. Those free speech limitations make little or no sense when applied to elected officials.

The Judiciary Committee also analogized the President to senior executive branch officers. The report cited Professor Ilya Somin, who wrote "Donald Trump himself has fired numerous cabinet officials and other subordinates because they expressed views he didn't like." On its face, Pickering does not extend to the senior executive branch officers appointed by the President. Nor do we think that Pickering's policy rationales should extend to such positions, albeit for different reasons. 

Senior appointed policy-making executive branch officers are removable by the President. If they lose the confidence of the President, for whatever reason, even for otherwise lawful speech, he can remove them. Absent constitutionally valid congressional tenure protections, these positions are at will. They are charged with carrying into execution the elected President's policy goals within the context of the legal system. We do not think that Pickering protects or should protect these at-will positions who serve at the pleasure of the appointing official. It would be a wholly new and novel claim to say that the President could not fire a cabinet secretary because of a speech the secretary gave. The First Amendment cannot provide a cause of action against such a "wrongful" termination on free speech grounds. (Here, we do not address here congressional protections of tenure.) 

Pickering serves an arguably important role: it ensures that millions of civil servants nationwide enjoy a large share of free speech rights that private citizens enjoy. It would be a tragic loss to democracy if these citizens surrendered all their free speech rights during their entire professional service that could last decades. We think these civil servants stand in a different position than at-will executive branch officers who may serve a four- or eight-year tenure, and will then return to the private sector. There are other reasons to reject the notion that Pickering's protections for civil servants' speech might apply or should apply to appointed senior executive branch officers. The President chooses his officers, but does not, as a general matter, staff or fill civil service positions. The President can remove his officers (in most circumstances), but he does not, as a general matter, have the power to remove civil servants from government employment. Executive branch officers are policy-makers; generally, most civil servants are not. For all these reasons, civil servants stand in a different position from executive branch officers. The President's relationship to his subordinate executive branch officers is one of a superior to inferiors. The President is elected; the senior officers are appointed. The President can nominate his senior officers. He can direct them. Generally, he can remove them at will. In other words, the free speech concerns that animate Pickering do not apply to senior executive branch officers. We do not suggest that appointed senior executive branch officers are more "important" than civil servants. Rather, these positions tend to exercise more policy-making powers. As a result, when they speak, their message is more readily mis-identified as that of the President they serve. Arguably, the President needs more control over them.

By contrast, the President is not a cabinet member, who works for a superior—other than the People who act through elections. Nor is the President a GS-15 who can be disciplined for speaking at a political rally. Treating the President as an appointed officer or a civil servant would eliminate the President's ability to act like a politician and party leader. With good reason, the elected President is not subject to the Hatch Act. He is expected to engage in overtly partisan speech. In our view, the President has more expansive free speech rights than civil servants, who have broader free speech rights than at-will executive-branch officers. There is a hierarchy for speech rights for these different positions. It is not the case that principal officers have more rights than inferior officers who have more rights than civil servants. Government officials and officers are not an undifferentiated mass, with identical First Amendment rights. Nor do these rights track the traditional status of positions in the government. Instead, we suggest that elected officials have the widest scope of free speech rights, civil servants enjoy some free speech rights which are subject to certain limitations, and that at-will presidential appointees enjoy the least. This result should not be surprising. Indeed, the whole point of nineteenth century civil service reforms was to insulate civil service positions from party politics, as opposed to transferring policy-making out of the hands of the elected government. 

Finally, we do not hold a novel position about the President's free speech rights. During the Johnson impeachment trial, several senators articulated our view that the President ought to have free speech rights that are as expansive as those of private citizens. 

Senator John Henderson of Missouri stated plainly that "the President, like other persons, is protected under" the First Amendment. "He too," Henderson continued, "has the right to make foolish speeches." Senator James Grimes of Iowa admitted that Johnson's speeches were "indiscreet, indecorous, improper, [and] vulgar." But he could not "attempt[] to repress the freedom of speech." Senator Peter Van Winkle of West Virginia said the First Amendment was "unquestionably of universal application," even to the President. Senator Joseph Fowler of Tennessee boasted that Johnson did no "more than exercise that liberty of speech guaranteed to him by the Constitution." Senator William Pitt Fessenden of Maine warned that removing the President for his speech would not only "den[y] him a right secured to every other citizen of the republic . . . but might deprive the people of the benefit of his opinion of public affairs." The President, Fessenden contended, has the right to communicate with the people. And the people have a right to hear those communications.

We do not here, nor did we in our prior post, cite these senators as holding the only view about the scope of the President's free speech rights in the impeachment context. We acknowledged that some senators who voted to convict, as well as the prosecuting House managers, rejected this free speech argument. Our goal was not to say, and we did not say, that the Johnson trial established the correct position. Rather, we raised this history to show that the issue was, and remains, fairly contestable. In 1868, there was a difference of opinion about what speech rights the President has. That same debate exists today. This issue is not clear. It is not settled. There is no controlling on-point judicial precedent. There is some on-point discussion from a prior presidential impeachment. And those debates from the Johnson Senate trial provide some support for our position. But we do not think this issue has been resolved or liquidated. 

The Judiciary Committee report concluded that freedom of speech "applies very differently" to the President "by virtue of his office" than it does to "private citizens." Moreover, the Committee endorsed the views of constitutional scholars who relied on cases analogizing the President's free speech rights to the free speech rights of civil servants. Going forward, the House managers, acting as prosecutors, will have to explain how those cases are analogous to elected officials, including the President. The managers may contend that the President is only accountable to the People every four years during the election season. But during the gaps between elections, the People cannot act. So, during that interregnum, Congress acts as the President's superior—apparently in much the same way that the Board of Education acts as a teacher's superior. We reject this analogy between the President and civil servants. Congress is not the superior to the inferior President. They are both elected. They both make policy, within the confines of complying with the legal system. They are both authorized in different ways to control the government-as-employer. As a general matter, Congress does not stand in the role of the employer vis-a-vis the President. If the President has an employer, it is the People, not Congress through impeachment. And that role exists throughout the entirety of a President's four-year term, and not only during the short election season.

Pickering and Garcetti were cases about civil servants. These precedents do not furnish good analogies to justify removing elected officials for purported speech-related wrongs.

We close with another note of caution. Since January 6, many professors have formed firm conclusions on difficult and novel constitutional questions that have not been judicially resolved or otherwise clearly established in prior House and Senate impeachment proceedings. Some of these issues have never been adjudicated in any forum. Some academics strongly objected to our position that the President should have the full scope of traditional free speech rights in general, and in the impeachment process, in particular. But it is evident that this view was articulated during President Johnson's senate trial. Right or wrong, that view cannot be dismissed out of hand. 

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]

Comments

[Pavel Petrovich]

Funny how the jews attack opinions and criticism as a limitation of free speech. As Voltaire sez....our masters are those we cannot criticize.

Now just opine that the Holocaust of the jews in ww2 is a hoax promoted by the jews themselves and watch 1A crumble.

Jews....the downfall of humanity.

[Leo Marvin]

I've known real antisemites. Your shtick is unpersuasive. Troll better.

[DaivdBehar]

As we speak, Pavel is curling his payos.

[Doug Huffman]

Kevin Alfred Strom 1993 “ To determine the true rulers of any society, all you must do is ask yourself this question: Who is it that I am not permitted to criticize? We all know who it is that we are not permitted to criticize. We all know who it is that it is a sin to criticize. Sodomy is no longer a sin in America. Treason, and burning and spitting and urinating on the American flag is no longer a sin in America. Gross desecration of Catholic or Protestant religious symbols is no longer a sin in America. Cop-killing is no longer a sin in America - it is celebrated in rap "music."

Pavel is free to speak in error.

[Rev. Arthur L. Kirkland]

"Pavel is free to speak in error."

Artie Lee Lee Wayne Jim-Bob Kirkland, however, is not. At this blog, making fun of conservatives is a step too far (when done too deftly for the proprietor's taste, at least).

Also, use of "c_p succ_r" has been prohibited by the Volokh Conspiracy Board of Censors.

[Kazinski]

I think the House legal position on the President's free speech rights is ridiculous.

But I also think impeachment is a political process and the House can impeach the President for everything and nothing, as they just demonstrated.

[Dr. Ed 2]

And the fact that in the 232 years of the US Constitution, half of the impeachments have occurred within the past 13 months shows the extent to which the Dems have used the once august Constitution for toilet paper.

I hope that Biden doesn't expect a scintilla of harmony...

[Sidney r finkel]

It is interesting for Prof. Blackman and his colleague to raise this issue, but the more important question I believe is how the issue will be resolved. Trump has two affirmative defenses in his upcoming trial, the free speech issue delineated here and the question of whether or not a President can undergo impeachment after he has left office. Surely even Rudy is smart enough to raise them.

It would seem there are three alterntives here.

1. The presiding officer could make the decision. Hopefully this would be the CJ so that the partisan aspect would be reduced.
2. The presiding officer could defer the issues to the Senate as a whole which could decide by majority vote.
3. The two issues could be appealed to the Supreme Court which would decide the issues.

I have yet to see any opining on the resolution or if there are other alternative resolutions. All of us would benefit from Prof. Blackman and others weighing in here.

[Kazinski]

I’m betting the Chief Justice will pass on impeachment II, for a few reasons:

He has no obligation under the constitution to do so.

It doesn’t provide any particular legal or constitutional issues he could solve.

He wasn’t treated very well by the Democrats last time, in fact they (Elizabeth Warren in particular) squandered an opportunity to embrace a moderate never Trumper to score cheap political points, worthless political points as it proved.

[Dr. Ed 2]

I don't see how Roberts can avoid this, as the constitution is explicit, and to argue that Trump isn't the President being impeached makes the whole proceeding moot in the first place.

It also comes down to what 5 justices, and not just Roberts, thinks.

[Kazinski]

Exactly, the Constitution IS explicit:
"When the President of the United
States is tried, the Chief Justice shall preside"

There are 2 other reasons I forgot to mention as to why I think he will decline:

The result of the trial is mostly moot, since even the disqualification possiblity is disputed.

And the number one reason why he will decline is the result will be the same as last time, even to the degree to that Nancy will wait to transmit the impeachment and squander any possible momentum.

[Ben_]

On the other hand: Orange Man Bad.

So anything can be dismissed. Law is merely a tool of power to some. When their job is done and power is achieved law goes back in the toolbox and they lock the box lid. Free speech and democracy are in that box too.

[Queen Amalthea]

This general condemnation of those he politically disagrees with as bad faith authoritarians is brought to you by that Crusader Against Enmity and Division, Ben.

Again get a parrot to say lines but you can't get them to mean them.

[jslinner]

Same reason why if a random child on the street punches you he gets scolded or spanked at most, instead of assault charges like an adult would get. The act is inherently different due to impact.

[John F. Carr]

I feel like I did the morning I woke up and found all the news was about a Trump tweet that people took offense at even though it didn't do anything. If there was any real news that day, it was buried. All this verbiage about the legal technicalities of a process that does not depend on legal technicalities is taking up space that could be used for real legal analysis, and if not that for cat pictures.

[Tempe Jeff]

I find it fascinating that, there is even a debate on this point. Politicians say many things they don't mean literally. Like caring about average families. No Child Left Behind. Read my Lips. Truth is rarely heard from any Politician. Now, President Trump has been impeached for telling folks to talk to their Congress Critters and, Impeached for holding a Foreign Policy that the drones at the State Dept. don't like. BTW, how many Treaties between Israel and other Countries did our 'betters' in the State Dept. achieve? Why was it ok for Obama to black-mail Ukraine on behalf of Biden? Does the Constitution only exist for those with a (D) after their name?

[Queen Amalthea]

It's almost like some things politicians are more dangerous than others, or that saying something over and over and over for months might be more inflammatory?

"President Trump has been impeached for telling folks to talk to their Congress Critters "

Oh, I see, it was bad faith to begin with. Sure, that's all that happened, entirely all.

[Mike Adamson]

Why do fools fall in love?

[Josh R]

The entire argument is premised on the belief that impeachment and removal is analogous to being fired from a job. It is not. It is being removed for committing high crimes.

[Bored Lawyer]

You do know that the First Amendment limits the power of Congress and the federal government (and through the 14th Amendment, the States too) to punish crime, correct?

The Alien and Sedition Act had many criminal provisions that, today at least, would be held to violate the First Amendment. And since many were directed against the government, they were "high" crimes.

[Josh R]

An impeachable "high crime" is not the same as a statutory crime. Speech which is protected from criminal prosecution does not preclude the same conduct from being subject to impeachment.

[Bored Lawyer]

You are just restating your conclusion.

Congress is granted many powers. That includes the impeachment power, as well as the Commerce power (which has now been expanded to mean almost anything Congress wants to do). Why does the First Amendment, which post-dates the grant of both powers, restrict the Commerce power, but not the impeachment power.

And for that matter, do you think that other restrictions in the Constitution apply to the impeachment power? How about the ex-post-facto clause?

How about the 14th Amendment, which granted full citizenship to freed slaves. Could a racist Congress remove an African American merely because he is one, on the theory that the impeachment power is not constrained by anything else in the Constitution?

[Bored Lawyer]

How about if Congress removed a Catholic for being a "dangerous Papist?"

[Josh R]

Perhaps an impeachment strictly on the basis of race violates the 14th Amendment. Perhaps not, because impeachment is whatever Congress says it is. My conclusion does not depend on the resolution of that difficult question because I am not (necessarily) arguing the First Amendment does not apply. As Eugene explained, I need only argue the Brandenberg standard for incitement does not apply.

[Bored Lawyer]

"Perhaps not, because impeachment is whatever Congress says it is."

Wrong. "High Crimes and Misdemeanors" is the standard. Not "whatever Congress says it is." Whatever the former means, it certainly does not mean the latter.

Otherwise Congress could remove the president (or any other federal officer, like an Article III judge, or a cabinet member) for belching in public.

And let me reiterate, the fact that something is not reviewable by the Supreme Court does not make it Constitutional.

[Josh R]

Our possible disagreement on whether impeachment is "whatever Congress says it is" is not relevant to my argument, which you did not address, about whether the Brandenberg standard applies to impeachment.

[Bored Lawyer]

I stated twice here that in my view, even under the Brandenburg standard, you could impeach Trump.

Brandenburg is not the First Amendment, it is an interpretation of the First Amendment by the Supreme Court. Congress is not bound to follow that. It could come up with a reasoned position why Brandenburg is wrong, or inapplicable to the facts of the case.

But that is a long way from saying that the Impeachment power is completely outside the First Amendment.

[Josh R]

You also said the House and the Senate decide whether an impeachment is unconstitutional. You seem to think it is constitutional for Congress to conclude that the Brandenberg standard doesn't apply to impeachment, but it is unconstitutional for Congress to conclude a statutory crime isn't required for impeachment, the First Amendment doesn't apply at all to impeachment or criticizing Congress is impeachable.

Given that Congress gets to decide what is unconstitutional, isn't it the case that where you drew the line between constitutional and unconstitutional is merely your opinion? It seems to me if the Constitution gave Congress the power to decide what is unconstitutional, then "whatever Congress says" is determinative.

[Bored Lawyer]

Section 2 of the Sedition Act:

And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

People were tried and convicted for this crime, see here: https://en.wikipedia.org/wiki/Alien_and_Sedition_Acts#History

Many of the statements considered seditious libel (a "high crime" if there ever was one) would be routine today.

So if Congress brought back the Sedition Act, it could impeach the president for criticizing Congress. And pace some who commented in other threads, this is a "High Crime or Misdemeanor."

This is not to say that all speech is protected by the First Amendment, it isn't. It is to say that speech protected by the First Amendment cannot be the basis for impeachment, and a Congressman who votes to impeach on that basis, or a Senator to remove on that basis, is violating his or her oath to uphold the Constitution.

[David Nieporent]

It is to say that speech protected by the First Amendment cannot be the basis for impeachment,

Right, and that's an incredibly stupid position. Nothing in the impeachment power or the First Amendment — not to mention common sense — supports it. If a future president one day starts giving speeches calling for genocide against blacks (or Jews, or evangelical Christians for that matter), and proposes that Congress pass laws to put that notion into effect, the notion that this is not an impeachable offense because the 1A protects such abstract advocacy under the Brandenburg test fails the much more important laugh test.

[Bored Lawyer]

Your problem is that you assume that the Constitution has a remedy for every outrage. It doesn't. Proposing a law is not a "high crime and misdemeanor" by any definition, and certainly wasn't at the time of the founding.

There would be many ways of opposing such a president, but impeachment is not one of them.

Now let me ask you. Do you believe that Congress could, consistent with its oath, impeach a president because he criticized Congress, and allegedly brought it into disrepute? Which is one of the charges levied against Pres. Johnson.

If the president said, "the Speaker of the House is a corrupt knave, and so is the Majority leader," could he be impeached? On the theory that such is seditious libel (cf. the Alien and Sedition Act).

That is the absurdity of your position.

[loki13]

"Your problem is that you assume that the Constitution has a remedy for every outrage. It doesn’t. Proposing a law is not a “high crime and misdemeanor” by any definition, and certainly wasn’t at the time of the founding."

Your position is absurd for multiple reasons.

First, as already repeatedly stated, 'high crimes and misdemeanors' had a technical definition that was already known at the time it was put in (Blackstone) and written about (Hamilton). It doesn't mean what you keep saying. It means maladministration or offenses against the public trust- not "statutory crimes" of which there were very few back then.

Second, your position is absurd in terms of definitions because now that we have statutory crimes (as opposed to common law back when it was written, which meant that people, aka judges, knew what crimes were), the measure of impeachment would simply be finding a "crime" that the President violated, or, for that matter, .... creating a crime. Because it's statutory.

Finally, your repeated references to the A&S Act betrays how insane the position of Blackman is. The people who passed the A&S Act? Those were the very same people who (wait for it) adopted the Constitution and the First Amendment. So the best judges of whether it is, or is not, against the First Amendment were able to pass it. So .... yeah. Most of the First Amendment jurisprudence that people are blithely citing (Pickering, Brandenburg) is modern, 20th century jurisprudence.

This is so truly bizarre I can't even comprehend how people fall for it. Look, anyone with half a brain gets it. Tillman and Blackman re-float their idea, and then the White House floats this as a defense. SHOCKING!

[Bored Lawyer]

"It means maladministration or offenses against the public trust- not “statutory crimes” of which there were very few back then."

And is proposing an outrageous law "maladministration or offenses against the public trust?" That is what we are talking about.

And I am still waiting for a response -- is criticizing Congress an impeachable act? Which is one of the things Johnson was impeached for, and many presidents have done over the years. (Do Nothing Congress -- Harry Truman).

As for the A&S Act, it was strongly attacked as violative of the First Amendment at the time. Some people in power ignore Constitutional restrictions, if they can get away with it. And when they lost the election, they allowed it to lapse, so that no court could review it. They knew it was highly problematic, and did it anyway.

[Bored Lawyer]

Having re-read your post, you seem to be imputing the position to me that High Crimes and Misdemeanors means criminal acts. It could mean what you say. But that does not mean that the First Amendment does not restrict the Impeachment power, the same as it restricts every other power granted to Congress.

Congress cannot pass a law regulating interstate commerce that violates the First Amendment. Same thing here.

[loki13]

"Having re-read your post, you seem to be imputing the position to me that High Crimes and Misdemeanors means criminal acts. It could mean what you say. But that does not mean that the First Amendment does not restrict the Impeachment power, the same as it restricts every other power granted to Congress."

Really? Are you sure about that? Absolutely sure?

Is the Senate prohibited from viewing the speech of Presidential appointments when considering whether or not to approve them?

"The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment."

So the HOR cannot choose their speak and officers based on things they have said?

If the House wants to "punish its members" or "expel a member" are they prevented from doing so based on speech completely?

This is a truly bizarre argument; not to mention if you're going stupid textualist (as opposed to regular textualist) you have to remember that the FA is "no law" and impeachment ... ISN'T A LAW.

[Bored Lawyer]

Is the Senate prohibited from viewing the speech of Presidential appointments when considering whether or not to approve them?

“The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.”

The obvious answer is no. And the reason is the same reason that policy-making positions are exempt from the patronage bar under the First Amendment, as per Elrod v. Burns (1976). (Senate confirmation implies some review of fitness for office, not merely rubber stamping what the president wants. And the speaker and officers of the House are political positions meant to advance the policy position of the party (assuming they have one).

If the House wants to “punish its members” or “expel a member” are they prevented from doing so based on speech completely?

I assume you mean protected speech, since not all speech is protected. Inciting a riot is not protected.
With that caveat, the answer is no. The House cannot expel members for making unpopular speech.

If the woke nutcases take over a majority of Congress, do you think that they can expel members for being "racist" if they propose something they don't like? E.g., a tax cut, or funding for police depts?

[loki13]

"If the woke nutcases take over a majority of Congress, do you think that they can expel members for being “racist” if they propose something they don’t like? E.g., a tax cut, or funding for police depts?"

Yes. Of course they can.

The Constitution doesn't protect us from rank stupidity. It's just words on a paper.

Just like Congress can declare war on Canada tomorrow, because they think we are running out of ice.

Anything else is beyond stupid. You keep trying to apply modern First Amendment doctrine to intra-branch disputes.

[Josh R]

loki channels his inner Scalia.

[David Nieporent]

I assume you mean protected speech, since not all speech is protected. Inciting a riot is not protected.
With that caveat, the answer is no. The House cannot expel members for making unpopular speech.

I find this argument a bit puzzling. A few posts ago you were telling me that the constitution doesn't provide a remedy for every outrage. Now you're turning to the constitution to argue that it prevents removal of legislators for protected speech.

[Bored Lawyer]

What is the contradiction? The Constitution itself grants powers, and the Bill of Rights limits them. Impeachment is a power, for High Crimes and Misdemeanors. Not for dangerous ideologies. But within that grant, the Bill of Rights constrains the Impeachment power.

[Bored Lawyer]

There are many problems that the Constitution does not deal with. More likely than a president proposing genocide is a president who becomes ill or injured and is incapacitated. The Founding Fathers never thought of it, and until the 25th Amendment, there was no provision to deal with it. (It is odd they did not consider it. King George III became ill and incapacitated from 1780-81. He eventually went mad and they had to make his son regent, although that happened after the Constitution was adopted).

[ReaderY]

I don’t think these standards are relevant to impeachment. The standard for impeachment is high crimes and misdemeanors. This implies criminality, not just conduct that would warrant firing an ordinary employee. In my view, if the constitution prevents making conduct criminal, it also prevents making it a high crime or misdemeanor.

However, the Articles accuse the President of conduct unprotected by the First Amendment, not just speech. To the extent the President instigated and ordered the attack on the Capitol, the fact that he used speech to do so does not make the First Amendment relevant. It is well established that solicitation, conspiracy, and other crime-facilitating speech are wholly outside First Amendment protection.

[Josh R]

Under Brandenberg, Trump's speech almost certainly is protected from prosecution.

[Bored Lawyer]

Nope.

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

There is more than enough evidence to send a criminal charge against Trump to a jury. It is not a slam dunk, but there is sufficient evidence to find him guilty beyond a reasonable doubt.

And impeachment does not require that standard. Preponderance is enough.

[Josh R]

Can a court overturn the impeachment as it did a conviction beyond a reasonable doubt in Hess v. Indiana?

[Bored Lawyer]

A court cannot overturn an impeachment for any reason. The Constituion gives the Senate the sole power to impeach.

Your question appears to have the wrong assumption that "unconstitutional" means "can be overturned by a court." The two are not the same thing.

If the House impeached, and the Senate removed, a federal officer for belching in public, that would be an unconstitutional act, which no court could review. The persons involved would be violating their oaths to uphold the Constitution, and would face the judgment of the voters at the next election.

[Josh R]

Who determines whether an impeachment is unconstitutional?

[Bored Lawyer]

I answered that. The House and Senate.

[David Nieporent]

The standard for impeachment is high crimes and misdemeanors. This implies criminality, not just conduct that would warrant firing an ordinary employee.

It does not. The subjects of impeachment's jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.

[Bored Lawyer]

Correct. Thank you. Not all speech is protected by the First Amendment, and some speech can be criminally prosecuted.

"Make Luca Brasi sleep with the fishes" is both speech and solicitatio of murder.

[Dr. Ed 2]

" Our view is that the reduced free speech rights standards announced in Pickering should not apply to elected officials.",/i>

Exactly -- but for a different reason. Because elected officials can't be summarily fired for being someone who disagrees with the elected official, they don't have the same free speech rights.

[Eric VonSalzen]

I read the text of Trump's speech of 1/6. Give me some credit for that: It was B-o-r-i-n-g! but I read it anyway. He did not incite the listeners to break the law, attack the Congress, break into the Capitol, etc. If a private citizen had given that speech, every civil libertarian at Volohk would argue that the citizen could not lawfully be punished for he said.
But that's NOT the end of the inquiry. Impeachment is NOT a legal proceeding. It's political. Trump was speaking about an extremely important political issue -- the integrity of an American Presidential election. The House Democrats (and a few Republicans) say that the opinions he expressed were beyond the pale and that Trump should forever be barred from office. Personally, I was not persuaded by Trump's arguments about the election, and as a Republican I'd be OK with Trump being excluded from future public office (I think the Party needs to find new leadership). But the Democrats apparently regard post-Presidential Trump as an adversary, so their attempt to use the impeachment power to promote their own political agenda is improper and should be rejected, not only by the Senate, but by the People.

[Queen Amalthea]

In your own comments you say "the opinions he expressed were beyond the pale and that Trump should forever be barred from office" and then jump to this conclusion: "the Democrats apparently regard post-Presidential Trump as an adversary, so their attempt to use the impeachment power to promote their own political agenda is improper and should be rejected, not only by the Senate, but by the People."

There's, at the least, some missing premise(s) here.

[Josh R]

Trump wasn't just speaking about the integrity of the election. He was claiming it was stolen from him. By doing so based on conspiracy theories with no factual basis, he was the one trying to steal the election, and in doing so has earned permanent disqualification.

[David Nieporent]

I read the text of Trump’s speech of 1/6. Give me some credit for that: It was B-o-r-i-n-g!

Well, there's a problem right at the outset of your approach: it wasn't an essay. It was a speech. You have to have heard it, not just have read it, to understand its impact.

He did not incite the listeners to break the law, attack the Congress, break into the Capitol, etc.

He absolutely did. He told them the election was being stolen! That it was a massive fraud! That they had to fight! If he were telling the truth, storming the Capitol would've been justified!

If a private citizen had given that speech, every civil libertarian at Volohk would argue that the citizen could not lawfully be punished for he said.

Again: context. If a private citizen wrote a comment on a website about it, sure. But said to an angry crowd to rile them up even further, that's another story.

[Bored Lawyer]

I agree with your take.

Now is your view that Brandenburge v. Ohio precludes criminal prosecution for that? I frankly don't see it at all.

[Sarcastr0]

Why is that a relevant question? We're talking about impeachment, which you admit does not require a crime.

[Josh R]

I'm pretty sure Bored Lawyer has taken the position a crime is required.

[Bored Lawyer]

Nope. But some overt act that abuses the person's authority in the office.

Recall that the original draft allowed for impeachment and removal for "maladministration," but that was altered as it was thought too broad. That certainly refutes any notion that Congress can remove the president for any reason it wants.

Impeachment is not the same thing as a vote of no confidence in a parliamentary system. It implies some wrongdoing related to the office, even if not technically a crime.

For that matter, the 25th Amendment is a mere redundancy if impeachment can be for anything. The president suffers a stroke and is so incapacitated that he cannot carry out the duties of office. Seems like a perfectly reasonable basis to remove him. But until the 25th Amendment, there was no way to do so.

[David Nieporent]

I don’t think the 1A as filtered through Brandenburg protects Trump for the 1/6 speech (though it would for the two month twitter campaign). I also don’t think the question is relevant to impeachment. I think the collective and many of the individual actions he has taken since 11/3 (really, since 1/20/17, but that’s another story) are grounds for impeachment regardless of his criminal exposure.

[anorlunda]

Can we limit the freedom of speech of members of Congress based on the same theories?

[Bored Lawyer]

Some are already talking about disqualifying Senators like Cruz and Hawley for being involved in an "insurrection."

Which is ridiculous. They used lawful means to try to achieve an end, even if their position was based on absurd, fantastical lies. That ain't insurrection.

It's like the difference between filing a frivolous lawsuit and threatening a judge or juror if they don't side with you. The former is merely sanctionable, the latter is criminal.

[John F. Carr]

Yes, with a 2/3 vote a member can be expelled. The constitution permits expelling a member based on speech. "Shall not be questioned in any other place" means they can be questioned in that place, i.e. in Congress.

[The Turtle Dove]

This isn't remotely a free speech debate. It's a Morrison/Humphrey's Executor debate that somehow got transplanted.

"Congress shall make no law..." Neither impeachment nor conviction is a law, and the process doesn't happen under the aegis of enacted legislation. End of question.

Mr. D.

[Bored Lawyer]

So is your view that the Executive and Judicial branches are not at all restricted by the First Amendment? Neither of those pass laws.

[loki13]

This is all modern 20th Century FA jurisprudence.

This is a very bizarre answer (don't impeach Trump) in search of a rationale.

From a legal p.o.v., it is embarrassing; roughly akin to "Congress can't declare war on a foreign country because the leader of that country took over the US Embassy and said that he was going to nuke us into oblivion, and since the FA protects the speech of foreigners on US soil, we just have to accept it."

I can't even. Look, if you want to say that Trump shouldn't be impeached for a campaign of lies leading to the Capitol attack (maladministration), fine. That's an argument. To say that he can't be impeached because of the FA is beyond stupid. Brandenburg and a dose of Pickering? This might be the legal nadir of this blog.

[Bored Lawyer]

I don't know what Blackman believe, but I have advocated for impeaching Trump on this very blog for inciting insurrection. There are probably other, maybe better bases. (Andrew McCarthy has gathered them in one of his posts on Natl. Review.)

So before you accuse others of TDS, perhaps you should look in the mirror. I am all for impeaching and removing the criminal (not that he will be). I just don't want to trash the Constitution on the way there.

[Sarcastr0]

I have also taken your thesis as 1A prevents Trump from being impeached for the words he sad a that rally.

What is your thesis, once and for all?

[Bored Lawyer]

I have stated it over numerous posts.

The president cannot be removed from office for engaging in First Amendment protected activity. Truman could not be removed from office for calling Congress a "Do nothing Congress."

When I say "cannot" and "could not," I mean that if Congress so acted, it would be acting in violation of the Constitution and the individual members' oaths to uphold that document.

What Trump did is not protected by the First Amendment. Not just the rally/invasion of the Capitol, but his call to the Georgia Secretary of State, and possibly also his call to VP Pence. None are protected by the First Amendment, and all could be grounds to remove him from office.

[The Turtle Dove]

Not at all. The Executive and the Judiciary are restricted because their activities can be traced to federal legislation. Judicial actions are usually enabled by legislation, e.g., the All Writs Act and the Judiciary Act of 1789. And the Executive both implements legislation and does so under the organic acts of its agencies. Here, on the other hand, you have the Senate sitting as a High Court of Impeachment, which is a constitutional court, one not ordained or established by the Congress. They're receiving the petition of the Representatives arguing that the President committed High Crimes, which is distinct from violations of enumerated law. There's simply no legislative process implicated.

Though (as I said on the post immediately previous in explaining why the right can't be incorporated against the federal government as it is against the states) it might be in for mitigation.

Mr. D.

[Bored Lawyer]

This discussion is getting a bit tiresome, since Trump is not going to be removed, and very likely will never be disqualified.
Nevertheless, here are some hypotheticals, which are more realistic than some that have been thrown around here.

Which of the following actions are Constitutional exercises of the Impeachment and Removal powers granted to the House and Senate? Explain why.

(1) President’s party loses control of both houses of Congress at the mid-term elections. The new Congress is highly antagonistic to the president and his agenda, and refuses to even entertain his proposals. President publicly excoriates Congress as a “Do nothing Congress that has been captured by special interests and does not care about the American people.”

President is impeached and removed for making this statement and bringing Congress into ill repute.

(2) Two years into the president’s term, it is discovered that 10 years ago, when the president was then a private citizen, he traveled to the Virgin Islands, where a famous millionaire and political operative repeatedly provided him with 11 and 12 year old girls for his physical pleasure.

President is impeached and removed for these actions.

(3) President is accused of taking a bribe. He denies it.

President is impeached and removed. The Senate declines to allow any defense, and does not hear witnesses nor allow for cross-examination. The only evidence offered is a videotape of a CNN interview with someone who claims she saw the bribe go down. (She is now hiding out in the Mongolian embassy in Paris.)

(4) The president is sued in a private civil suit by a former business partner. Under Clinton v. Jones, the suit proceeds. It is brought in federal court on the basis of diversity jurisdiction. In the course of the suit, the president is found to have tampered with certain documents that are central to the case.

President is impeached and removed for these actions.

I’ll post my views later.

[Josh R]

Perhaps stupid, but constitutional.

You have said that for impeachment Congress is not bound by the Supreme Court's interpretation of the First Amendment, and thus could constitutionally establish a more lax standard than Brandenberg for impeachment. But if that is the case, why doesn't Congress have the power to interpret the First Amendment such that it does not apply at all to impeachments? It appears to me you think there is a line Congress can't cross, but the problem with your argument is you have stated no principle on how to draw that line.