The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Friday, nearly 150 law professors signed a statement about President Trump's First Amendment defenses. The new statement begins:
At that trial, President Trump's lawyers plan to defend his actions on January 6 by arguing that the First Amendment shields him from conviction. We, the undersigned constitutional law scholars, write to explain why this is wrong. The First Amendment is no bar to the Senate convicting former President Trump and disqualifying him from holding future office. Although we differ from one another in our politics, disagree on many questions of constitutional law, and take different approaches to understanding the Constitution's text, history, and context, we all agree that any First Amendment defense raised by President Trump's attorneys would be legally frivolous. In other words, we all agree that the First Amendment does not prevent the Senate from convicting President Trump and disqualifying him from holding future office.
The introductory section strikes a chord of unanimity. But it isn't clear that all of the signatories agree on a single rationale of why a First Amendment defense would be
Roman numeral I is titled:
"The First Amendment does not apply in impeachment proceedings, so it cannot provide a defense for President Trump."
I would think that all of the signatories agree with this statement. But they do not. The section begins:
"Many of us believe that the First Amendment simply does not apply here."
Many? How many? Is many "most"? A majority? A plurality? The letter does not say. Presumably, some of the signatories agree with me and my colleague Seth Barrett Tillman that the First Amendment does apply–or at least has some relevance–to impeachment proceedings. There very well may be a consensus, but there are dissenters to this critical question.
Roman numeral II is titled:
"Even if the First Amendment applies in impeachment proceedings, it does not prohibit conviction and disqualification for violating the President's Oath of Office."
Again, I would think that all of the signatories agree with this statement. But they do not. The section begins:
Many of us believe that, regardless of whether the First Amendment does or does not apply to impeachment, President Trump can be convicted and disqualified . . . .
Again, "Many." Presumably, some of the signatories do not agree with this statement. And the inclusion of "regardless of whether" makes it even less clear what "Many" professors are agreeing to. Some professors may think the First Amendment applies to impeachment proceedings. Some professors do not. Some professors think that the First Amendment does not apply, and Trump can be convicted for some reason. And some professors think that the First Amendment applies, and Trump cannot be convicted. But the full sentence makes it even less clear what "many" professors are agreeing to. Here is the full excerpt:
Many of us believe that, regardless of whether the First Amendment does or does not apply to impeachment, President Trump can be convicted and disqualified because he is accused of violating his oath through an "extraordinary, unprecedented repudiation of the President's duties to protect the government" through his "further acts and omissions after he incited the crowd to attack the Capitol"—namely, by allegedly watching the mob storm Congress on television and "not immediately taking action to protect Congress and the Capitol."
There are two alleged courses of conduct. First, the January 6 speech. And second, watching the mob and failing to take immediate action. The letter explains:
While reasonable people can disagree as to the scope of free speech rights in specific contexts (such as the scope of the government's power to limit its own employees' public expression), no reasonable scholar or jurist could conclude that President Trump had a First Amendment right to  incite a violent attack on the seat of the legislative branch, or  then to sit back and watch on television as Congress was terrorized and the Capitol sacked.
I don't believe Trump's lawyers have defended this latter alleged course of conduct on First Amendment grounds. There are certainly defenses to be raised, but I don't think the lawyers would argue the President has a First Amendment right to watch TV and fail to dispatch troops. How many of the signatories think the latter course of conduct is impeachable? And how many of the signatories think the former course of conduct is impeachable? And how many think both courses are impeachable? We do not know.
Roman numeral III is titled:
"The President's speech and conduct around January 6 constitute unprotected incitement."
Does everyone agree with that statement? No. The section begins:
Even if the principles of First Amendment law are applicable in the impeachment context (and many of us believe they are not), many of us believe there is an extraordinarily strong argument that the Supreme Court's standards, articulated in Brandenburg v. Ohio, for when the government may criminally punish an individual's deliberate incitement of others to engage in imminent lawless acts are satisfied in this case.
This sentence is even tougher to follow. Many professors think the First Amendment is not relevant. But some do. And many professors think that Trump's conduct satisfies the high bar set by Brandenburg. But not all professor reach that conclusion. So we are left to believe that some of the signatories think that the First Amendment applies and the Brandenburg test is not satisfied. In other words, Trump's speech would be protected under the Brandenburg standard. These dissenters would agree with me and Tillman, at least in part. But they may think that the President's other conduct after the speech is impeachable. And there is no First Amendment defense to that other conduct. The letter states:
In this context and under the circumstances, many of us believe there is a powerful case that even under the Supreme Court's narrow standards for when speech inciting violence is not constitutionally protected, President Trump's words and conduct were unprotected. His words and conduct were, in the words of the Brandenburg case, "directed to inciting or producing imminent lawless action and . . . likely to . . . produce such action."
By allowing such a wide range of views, the drafters of this letter have revealed there is some dissent on this issue. Yet the conclusion dismisses any possible dissent:
The First Amendment is no defense to the article of impeachment leveled against the former President, because the First Amendment does not apply in impeachment proceedings; because the president does not have a First Amendment right to incite a mob and then sit back and do nothing as the hostile mob invades the Capitol and terrorizes Congress; or because, in context, President Trump engaged in unlawful incitement.
Do all the signatories agree with this statement? Or only "many"?
I have long been critical of these sorts of group statements. Law professors tend to have very nuanced views. And letters prepared for 100+ professors cannot adequately reflect that nuance. This letter tried to accomplish some nuance by referring to the views of "many" professors. But in doing so, the letter fractured so badly that I'm not even sure what precisely a majority agreed upon. This statement reads like a splintered plurality decision from the Supreme Court where there is a majority that agrees on a single disposition, but there is no single rationale. Alas, this nuance will be lost in public discourse. What matters is that 140 law professors submitted a letter arguing against Trump's First Amendment defenses.
The New York Times offered this summary:
Claims by former President Donald J. Trump's lawyers that his conduct around the Jan. 6 Capitol riot is shielded by the First Amendment are "legally frivolous" and should do nothing to stop the Senate from convicting him in his impeachment trial, 144 leading First Amendment lawyers and constitutional scholars from across the political spectrum wrote in a letter circulated on Friday.
Which argument, exactly, is "legally frivolous"? I do not know.
Two of my co-bloggers, Sasha Volokh and Daivd Post, signed the statement. But other co-bloggers, who have written about the First Amendment and January 6–Jonathan Adler, Ilya Somin, Keith Whittington, and Eugene Volokh–did not sign. Several of these professors signed another letter about late impeachments.