The Volokh Conspiracy

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My Washington Post Op Ed on Impeachment and the First Amendment

The op ed, published today, explains why the First Amendment doesn't protect Trump against impeachment and conviction for his role in the attack on the Capitol.


This morning, the Washington Post published my op ed on impeachment and the First Amendment. Here is an excerpt:

Former president Donald Trump is about to be tried in the Senate for his role in allegedly encouraging the Jan. 6 attack on the Capitol by a mob intent on overturning the results of the 2020 presidential election. Trump's lawyers and some legal scholars claim it would be unconstitutional to convict Trump, because his speech was protected by the First Amendment.

When he stood on the Ellipse and told the crowd that "if you don't fight like hell, you're not going to have a country anymore," and that "we're going to walk down Pennsylvania Avenue … we're going to the Capitol," he may have been provocative and unwise. But, so goes the argument, he was not inciting imminent violence, according to the standards established by the Supreme Court….

The First Amendment protects private citizens against criminal and civil sanctions for a wide range of speech. But it doesn't protect government officials against impeachment and conviction.

Under Supreme Court precedent, lower-level government employees have some significant protection against being fired because of their political views and speech. But the court has also made clear that higher-level policymaking employees enjoy no such protection. Indeed, high-ranking officials get fired because of their political speech all the time….

The idea that officials can be impeached and removed for noncriminal speech that violates duties of their office dates back to the Founding era. Two early impeachments of federal judges were brought on in large part by speech that indicated they could not be trusted to perform their duties properly…

I have previously written about impeachment and the First Amendment in a series of posts here at the Volokh Conspiracy blog. See here for the most recent, which includes links to others.