Houston Community College v. Wilson Reaffirms That Elected Officials Have Free Speech Rights

This basic principle was contested during President Trump's second impeachment trial.

During President Trump's second impeachment trial, Seth Barrett Tillman and I wrote that elected officials, including the President, retained their First Amendment right to freedom of speech. (See here, here, here, and here.) We often quoted from Chief Justice Rehnquist's classic book about presidential impeachments, Grand Inquests. He observed that, during times of conflict, "[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good." Yet, some of our critics argued that elected officials had reduced First Amendment rights, and their speech was subject to the Pickering/Garcetti line of cases. In other words, elected officials would be treated in the same fashion as civil servants.

In Houston Community College v. Wilson, the Supreme Court reaffirmed that elected officials have free speech rights. Justice Gorsuch's unanimous majority opinion reflects this position--and it did not seem controversial at all.

First, the Court stated, directly, that elected officials retain their free speech rights. These accountable officials need to exercise those rights to fully represent their constituents.

First, Mr. Wilson was an elected official. In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes. As this Court has put it, "[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement" that it was adopted in part to "protect the free discussion of governmental affairs." Mills v. Alabama, 384  U. S. 214, 218 (1966). When individuals "consent to be a candidate for a public office conferred by the election of the people," they necessarily "pu[t] [their] character in issue, sofar as it may respect [their] fitness and qualifications forthe office." White v. Nicholls, 3 How. 266, 290 (1845). 

Mills v. Alabama, the cited case, does not directly support the proposition that elected officials retain their free speech rights. But the Court stated the issue clearly: elected officials can "continue exercising their free speech rights when the criticism comes."

Second, Gorsuch expands on this reasoning. He explains that the elected members of the Houston Community College Board can use their free speech rights to censure Wilson, a fellow elected member:

Second, the only adverse action at issue before us is itself a form of speech from Mr. Wilson's colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same. The right to "examin[e] public characters and measures" through "free communication" may be no less than the "guardian of every other right." Madison's Report on the Virginia Resolutions (Jan. 7, 1800), in 17 Papers of James Madison 345 (D. Mat-tern, J. Stagg, J. Cross, & S. Perdue eds. 1991). And the role that elected officials play in that process "'makes it all the more imperative that they be allowed to freely express themselves.'" Republican Party of Minn. v. White, 536 U. S. 765, 781 (2002).

Again, the First Amendment protects the rights of politicians to criticize other politicians. Their speech is not subject to the ad-hoc balancing test from Pickering.

Gorsuch's analysis recognizes that elected officials are accountable to the electorate, and not a bureaucracy. Those elected officials are expected to receive public criticism. But more importantly, those elected officials retain their free speech rights to respond to public criticism.

Gorsuch stressed over and over again that the case concerned elected officials:

Given these features of Mr. Wilson's case, we do not see how the Board's censure could qualify as a materially adverse action consistent with our case law. The censure at issue before us was a form of speech by elected representatives. It concerned the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. 

These First Amendment rights are not diminished by entering elected office, as they perhaps would be by entering the civil service.

In January 2020, Tillman and I wrote:

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.

I think HCC v. Wilson provides some support for our position.

Comments

[DaivdBehar]

Good victory for real people against the Ivy indoctrinated enemy of our nation. It is high time to retaliate against these agents of the Chinese Commie Party, to end their tax exemption, to de-accredit them, to end all government funding, to shut them down, to seize their assets in civil forfeiture for tax fraud.

[Michael D]

What is the tax exemption you mention?

[Michael P]

Most prestigious colleges and universities are non-profits that are tax exempt under Section 501(c)(3). For-profit colleges are often derided as lower quality because they have that profit motive.

[DaivdBehar]

To obtain this exemption, they promised to provide education. In education, all sides of a subject are presented. If one side of a subject is presented, it is called indoctrination, and represents tax fraud.

People ask, should the flat earth theory and the idea the sun revolves around the earth be presented in astronomy class. They ask should atheism be covered by a religious school. The answer is, yes, if you want the tax exemption. Explaining both sides will be educational. For example, what was the evidence known to ancient people those elite, established ideas, violently enforced ideas were false. In law school, the model of the Inquisition and of Scholasticism should be reviewed along with criticism of them. They are the methodology of the lawyer profession, and quite wrong save for the $trillion the profession scores in rent seeking garbage results.

[DaivdBehar]

People may google Form 990 for all these universities, and look under the purpose section, where they promise to provide education, every year.

[Rev. Arthur L. Kirkland]

For-profit schools are derided for low quality (by informed, educated observers) because they are downscale institutions.

[DaivdBehar]

hi, Artie. Tell us what city you live in. It may explain your views.

[DaivdBehar]

Artie, I attended a for profit law school, owned by the Washington Post and by Jeff Bezos. It was a tremendous experience. Every turn of the page of every was like the shower scene from Psycho, chilling, shocking, horrifying. I learned things were 100 times worse and more toxic than the public realized. Something has to be done to fix your profession. It stinks at everything save at the collection of the $trillion rent.

[Charles Epperson]

You do know that the Government body won this right? I do not understand that you said really has to do with this case other than you pet boar to gore of all lawyers are evil and need to be gotten rid of.

[Charles Epperson]

Oops I replied to the wrong spot. I was referring to DavidBehar

[Da5id]

If only there were a "mute user" button....

[Michael P]

The clock of DaivdBehar has the hour hand stuck on "Lawyers are responsible for all the world's problems, and I point this out because I love them enough to correct them", and the minute hand stuck on "Have you resigned so a diverse can replace you? What are your race and gender so I can write a letter of recommendation for you?"

Don't expect much from that account.

[DaivdBehar]

Hey, Mickey. I await your criticism of repetitiveness of Eugene and of Artie. They are far more dreary and repetitive in their fake bullshit assertions.

[DaivdBehar]

Mickey. You also forget the dozens of other ideas I bring to this lawyer site from my high school education.

[SimonP]

Ironically, Wilson was an anti-gay conservative gadfly, who got himself elected to the HCC Board specifically to attack what he viewed as its corrupt and excessive practices.

The Fifth Circuit, in holding for Wilson, was essentially endorsing his actions. I doubt they would have reached for the First Amendment remedy if he were of the liberal persuasion.

[Jaypd]

You are garbage

[Kazinski]

Well that escalated quickly.

[DaivdBehar]

Hi, Jay. Are you a Democrat?

[BravoCharlieDelta]

Don't worry, they will make an exemption for Trump speech. It's different. It's dangerous to our Democracy because Democracy dies in Darkness.

Trump Law!

[Stephen Lathrop]

I suggest one needful exception to free speech rights for elected officials. It is based in part on the following, from the OP:

Gorsuch's analysis recognizes that elected officials are accountable to the electorate, and not a bureaucracy.

That is exactly right, but it cannot imply, as it might at first seem to do, that elected officials should be free to say anything at all, according to the officials' unconstrained judgments about what serves the electorate. Allow that, and a logical contradiction undermines the accountability argument.

Specifically, accountability to the electorate—perhaps for this discussion better designated the sovereign People—logically forbids speech contrary to the expressed will of the sovereign.

Of course, the will of the sovereign People may often be unclear, or rightly contested. In ambiguous cases—which are most cases—the endorsement implied by election goes far to justify an elected official to suppose his own views ought to be freely expressed as if they were sovereign views—which is the notion implied when an election is said to confer a, "mandate."

In one specific instance, however, the expressed will of the electorate cannot properly be regarded as ambiguous. In that instance alone, accountability to the electorate must be accepted by all elected officials to mean mandatory agreement. That instance occurs at the moment a completed election is certified. When that happens, the results are entered into the public records of the nation as a sovereign decree of the People, exercising their constitutive power. That is not ambiguous.

At that moment—and afterward with regard to elections—accountability to the electorate demands that all elected officials concede the People's sovereignty, not contest it. More than concede, actually. The proper duty is jealously to defend that sovereign power against all challenges.

In this one instance, the duty of the elected official is unambiguous—it is not only to submit to the will of the sovereign People, but also to defend publicly that it is the sovereign People, and only the sovereign People, who may exercise constitutive power in the United States.

Thus, a fractious defeated candidate for election, after the election has been certified for his opponent, may not properly claim a right to free speech to say otherwise. To do that is the opposite of accountability to the electorate. It is instead to enter into a contest against the People, for their sovereignty. That is conduct an elected official, wielding the power of government, ought not be permitted. It is conduct akin to treason, and ought to be recognized as such, and punished as a crime.

These First Amendment rights are not diminished by entering elected office, as they perhaps would be by entering the civil service.

In light of concerns about defending sovereignty, as discussed above, that assertion about undiminished rights in elected office ought to be reconsidered. An elected official claiming a right to speak to contest the sovereignty which put him in office cannot be a proper power under the Constitution. To insist otherwise turns American constitutionalism upside down. Even the government as a whole is not sovereign, not in the least. American constitutionalism requires that must always be conceded by officials who run government, never contested.

But admittedly, current law leaves the analysis ambiguous. An appearance can arise—and actually has taken over—that America practices a sort of decapitated constitutionalism—where actual sovereignty has been lopped off—leaving government officials sovereign by default. That requires a sharp correction.

A way to correct it would be to require from every candidate for office, and from every bureaucrat empowered to manage elections, an oath of submission to the will of the sovereign People, as expressed in the form of a certified election. Such an oath would be a requirement imposed only on those empowered by government, and thus under a special duty of loyalty to the sovereign.

Others, not in government, ought to remain free at all times to say anything they please about government, about elections, about laws, about bureaucrats, and to protest without limit what they may take to be stolen elections. To do that would in fact be exercise of the joint sovereignty of the People, which the oath for officials is intended to protect.

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.

I hope the discussion above shows how free speech limitations for elected officials—in the narrow context of elections—not only make sense, but are actually necessary. Without them, there is too great a risk that the power of government will be wielded for private ambition, and against the expressed will of the sovereign People themselves. The purpose of the oath mentioned above is to draw a distinct line between two classes which American constitutionalism must recognize and separate—the class which is free to act at pleasure to exercise joint sovereignty on the one hand, and on the other hand the class of government servants who owe the former a duty of loyalty.

[Lee Moore]

More than your usual dose of idiocy, Lathrop old chum.

an elected official to suppose his own views ought to be freely expressed as if they were sovereign views

The principle is not that the (successfully) elected official can suppose each of his utterances to be "sovereign views" - it is that if the people wish to punish him for expressing views which differ from theirs (or some of theirs, since "the people" have millions of voices) they do so at the next election. Courts do not do so in the interim.

A way to correct it would be to require from every candidate for office, and from every bureaucrat empowered to manage elections, an oath of submission to the will of the sovereign People, as expressed in the form of a certified election.

How then is a candidate to contest the next election if his view is that the people reached the wrong answer last time ? And the people frequently seem capable of changing their mind from election to election - as seen , eg in 2010, 2012, 2014, 2016, 2018. Your suggestion is manifest lunacy.

accountability to the electorate demands that all elected officials concede the People's sovereignty, not contest it

As Stalin - no mug he - apocryphally pointed out, what matters is who counts the votes rather than how the people actually vote. To argue that a candidate should not be allowed to dispute whether the count reflects the actual vote is positively Stalinist.

[Stephen Lathrop]

To argue that a candidate should not be allowed to dispute whether the count reflects the actual vote is positively Stalinist.

I did not argue that. I argued that after the question of the legitimacy of the vote count is beyond practical question—which is to say after the count is certified and accepted by Congress—disputes from candidates sworn to abide by that count must cease. Prior to that, they get to dispute as fast and furiously as they please. Plus which, their unsworn supporters can keep protesting indefinitely.

[Rossami]

That's ridiculous. There is no point at which the legitimacy of the vote count is beyond question. The counters and certifiers are as susceptible to corruption as anyone else.

It would be a grotesque suppression of freedom to deny the right to challenge what you sincerely think is wrong. Your claim to limit it to "practical" certainty is just stupid. There is no objective source of perfect "truth" on which such a system could rely.

[Stephen Lathrop]

By the way, Moore, do you suppose it is unreasonable to impose on candidates for office an oath to abide by an election result determined by others? If so, can you explain why opposition of that sort is any different than a Stalinist insistence that an incumbent office holder enjoys power to control the counting?

[Lee Moore]

"Abide by" how ? There's no conceivable justification for requiring a candidate to refrain from arguing that the election was rigged or fraudulent or wrongly counted or otherwise illegal, or from seeking to get whatever relief he can from the courts. Nor is there any reason to require an oath to refrain from using artillery to seize power back by force, as that is already illegal.

It may be, depending on the circumstances, desirable for a candidate who believes he has been robbed of victory by illegal means, to keep quiet. Or, depending on the circumstances, it may not. But requiring him, by law, to shut up would be tyrannical.

Obviously.

[Stephen Lathrop]

There's no conceivable justification for requiring a candidate to refrain from arguing that the election was rigged or fraudulent or wrongly counted or otherwise illegal, or from seeking to get whatever relief he can from the courts.

You are not required, of course, to believe anything you do not want to believe. Others have thought differently.

As an alternative to We the People, what is your pick for a better sovereign for the United States? Would it be Donald Trump, and supporters of his cult of personality? If not, there is every, "justification for requiring a candidate to refrain from arguing [ceaselessly] that the election was rigged or fraudulent or wrongly counted or otherwise illegal, or from seeking to get whatever relief he can from the courts." To do those things, the Party doing them would make himself a rival for the People's sovereignty. He would begin a process to seek actual overthrow of American constitutionalism.

Your comments betray thinking unprepared to contend with issues which apparently strike you as simpler than they are. Like most Americans, you take existence of accustomed government institutions as sufficient proof to justify empowering American government figures as if they were sovereign. Ignoring the non sequitur, if that actually could happen, the notion of limited government would become a paradox.

You seem to grapple not at all with general questions bearing on national existence. Where does a national government come from? What conditions must be satisfied to bring it into existence, to maintain it, to constrain it? Given no government, or the wrong government, what power can exist to change that situation, and replace it with another? Who decides, and on what basis, what form a newly-created government will take? Until you are ready to supply general answers to questions of that sort, you are doomed to misconstrue a term like, "tyranny," by supposing a context for it which would prove impossible to apply.

[Stephen Lathrop]

Lee Moore, I asked, "Do you suppose it is unreasonable to impose on candidates for office an oath to abide by an election result determined by others?"

How do you answer?

[Kazinski]

I’ll answer that, what’s the enforcement mechanism if you think the official violated his oath?

Voting him out of office? That’s already on the table.

Impeachment, well they already did that with Trump.

Recalling the official, well that’s already available some places, it would put it on the table for jurisdictions that require an allegation of improper behavior like Washington.

The courts? They have no role here, it’s non-justiciable.

Then I might also ask, would you apply your Sovereignty principle to Al Gore’s contesting the Florida election? When is an assertion of an improperly conducted election legitimate and when is it violating the sovereignty of the people. Seems pretty subjective to me.

Like a lot of your thinking it’s a muddled statement of principle that you seem to think can be immutably transformed into black letter law.

[Stephen Lathrop]

Then I might also ask, would you apply your Sovereignty principle to Al Gore’s contesting the Florida election? When is an assertion of an improperly conducted election legitimate and when is it violating the sovereignty of the people. Seems pretty subjective to me.

No, I would not apply it to Al Gore, because he did not continue to contest the election after the outcome became certain, let alone after the result was certified and accepted by Congress. I was not unclear about when the deadline was. You should pay closer attention to comments you criticize.

I assume if a law to make criminal the violation of the oath gets signed by the president, then it does become a matter for the courts. Do you want to correct me on that?

[Dilan Esper]

Specifically, accountability to the electorate—perhaps for this discussion better designated the sovereign People—logically forbids speech contrary to the expressed will of the sovereign.

Whoa. The framers' version of "popular sovereignty" is bad enough, but this sentence totally indicts your worldview, Stephen. It's basically the logic of Soviet Communism.

If you have a proper worldview about government power- that the state is not the people, and it rules because it monopolizes force- one thing that worldview does is stress the importance of human freedom even when the state doesn't approve of what you are doing. But if the state is actually "the people", then that justifies authoritarian government, because after all, any authoritarian or even totalitarian measure is legitimate- it comes from "the sovereign people".

No, Stephen, the people are not sovereign. The government is, and it has to be constrained and limited and watched like a hawk.

[Stephen Lathrop]

But if the state is actually "the people", then that justifies authoritarian government, because after all, any authoritarian or even totalitarian measure is legitimate- it comes from "the sovereign people".

Esper, it looks as if your long struggle against the founders may be about to break into the sunlight of genuine understanding. Yes, it was the founders' view that sovereignty considered alone was a power so limitless that it could justify tyranny. They had specific instances of that sovereign tyranny in mind, and not just that of George III. But they also believed that history showed no modern national state was possible, except at the behest of an all-powerful sovereign. What else except absolute power could create a government at pleasure? Do you doubt that was their belief? Behold:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

What constraint upon the People do you find in that? There is none. Their power is boundless.

In those words they are endowed literally with power to act at pleasure. At least for our entire lifetimes, that text has been misread by many as a maundering attempt to found governance on individual rights. It is nothing of the kind. It is about power and legitimacy, and for the first time in history understood those subjects correctly.

That brilliant formulation, the foundation of a world-wide revolution in thinking about governance, proposes not one scheme of legitimacy, but two. It is those two legitimacies yoked in concert which alone can create beneficent government. By themselves each legitimacy is insufficient, or even destructive.

The first legitimacy is sovereign legitimacy. Its test is power to act at pleasure. Its sole constraint is geographic; it applies to the borders which enclose the domain the sovereign enjoys power to govern.

The second legitimacy is government legitimacy. Its test is conformance to the sovereign will. Nothing more. A government is legitimate if it does what the sovereign, acting at pleasure, commands it to do.

No doubt you spy a problem. It was the solution of that problem which made America great, and a revolutionary example to the world.

The brilliance of the American founding was to allocate sovereign power to the governed—instead of to the government—and thus make their own welfare the missing piece of an otherwise flawed construct. It was that engagement of the people as subjects in the definition and exercise of those two otherwise insufficient concepts of legitimacy, which made it all work benevolently. In the American scheme, the all-powerful sovereign was constrained by the awful realization that in abusing its subjects it could only harm itself.

A major political problem today is that the founders' understanding of their scheme of government has, as a practical matter, largely been forgotten. So what we get instead amounts to a notion of decapitated constitutionalism, from which the active role of the sovereign has been lopped off. The problem with that is that the power of the subjects themselves has been the principal victim of the decapitation.

[Dilan Esper]

The Founders did what they did. They were smart on some things (I very much appreciate their anti-royalism), awful on others (e.g., slavery), and full of propaganda (which hardly makes them unique). We certainly shouldn't ignore everything that we know about government and liberty to listen to a bunch of people with very different values and concerns.

But no matter what people want to say rhetorically about the framers' rhetoric, it's incredibly dangerous to think that acts of the government are the acts of the people. You scare me.

[David Nieporent]

I suggest one needful exception to free speech rights

Shocker.

[benji]

So if you lose an election you can be put to death for your speech? Cool cool cool

[Krayt]

Elected officials, though they may be compensated, are not employees of the government. They are the government.

With that understanding, it's easy to see why elected officials retain free speech in their position. Their authorization comes from The People, who already spoke very clearly about speech. And nobody has the authority to shut up their representatives. What makes some other elected official deign to misbelieve their authorization from the very same People is somehow greater?

[Stephen Lathrop]

Krayt, actually the sovereign People have the authority to do anything at all, whatever it pleases them to do. They are not even constrained by the Constitution. The Constitution is their decree. They can honor it, they can ignore it, they can throw it down and dance on it. They can shut up their representatives. That is what it means to be sovereign. You get to act at pleasure, without constraint.

Governments, on the other hand, are constrained, by the People.

All of that is sort theoretical, of course—a description of the way things work as a matter of principle. Practical reality can differ, but it ought not stray too far from the principles.

[Charles Epperson]

Yes, and the time and place that the people exert that will is in the election. Unless there are recall statues that's where the "will of the people" ends. And if the representative goes off the rails, then you do not re-elect them. As is said they answer only to the constituents.

Unless we have constrained our representatives before the fact of being elected the representative can indeed speak as they want, even contrary to the "will of the people"

[Stephen Lathrop]

Epperson, your formulation would make the Constitution sovereign. It is not. It is the sovereign's decree, constituting (and constraining) government. The American sovereign People remain active continuously. They need not be quiescent or without effect during the intervals between elections.

[Krayt]

You think you argue against me but you don't. It is the power of the people via their elected officials that the officials retain free speech. How could it be otherwise?

[Stephen Lathrop]

Krayt, as founder James Wilson wrote, about an almost identical utterance as yours, "You approach the truth, but you do not reach it." The truth is that rights for everyone are indeed protected by the power of the people, but not via the free agency of their elected officials. The founders wanted their own agency to be the object pursued by elected officials. They wanted the elected officials constrained. They expected that would happen via their own power, which they understood as absolute, and greater than government's.

The founders well understood that government would always be the principal threat to constitutional rights. The founders were not so foolish as to suppose a paradox would supply protection. Government can not at once be the agency which destroys rights, and also the only means to protect them. The founders' view was that sovereign power to overawe government was the source of both government constraint, and of protection for individual rights.

The founders expected their power to be made efficacious through elections, if necessary through impeachments, and hoped at all times that it would be promoted on their behalf by the wisdom of the better leaders, and by the education—formal and informal—of the people themselves. Hence Ben Franklin's famous remark, "A republic, if you can keep it." The, "you," was the point.

[DaivdBehar]

Stevie. Those government lawyers control the men with guns, to impose their sicko, garbage, rent seeking scam, in utter failure. They run a tighter ship than the KGB. For example, an epithet at work gets you fired. That did not happen under Stalin.

[Dilan Esper]

Krayt, actually the sovereign People have the authority to do anything at all, whatever it pleases them to do.

Funny how whenever "People" try to exercise these powers, they get arrested and thrown in prison by Article III judges acting on authority from "the People's charter".

[Stephen Lathrop]

Esper, the persons jailed are not jailed in their capacity as joint sovereigns. They are jailed in their capacity as offending subjects. The dual character of American sovereignty is a frequent source of confusion. It is a subtle concept, so often misunderstood.

[Dilan Esper]

It's not a subtle concept. It's not a concept at all. Ordinary people are not sovereigns, because they don't control the army or the courts.

[Stephen Lathrop]

Jointly, as I said, they are sovereigns. And they do control the army, and the courts.

[David Nieporent]

Krayt, actually the sovereign People have the authority to do anything at all, whatever it pleases them to do.

Nope. Our rights are endowed by our creator, not by "sovereign People."

[Stephen Lathrop]

Nieporent, go ahead and believe if you must that your rights descend from the sky. But do not be so foolish as to suppose that some sky-power will vindicate them for you. For vindication, you have only the power of the sovereign People to turn to. Only they possess a power sufficient to overawe government, which is the inevitable opponent of your rights, and the agency which will deprive you of them if it can. The rights you actually have are the rights the People agree to vindicate.

You seem a pretty hard-headed guy. It would be a disappointment to discover you count yourself among maundering Lockeans, with the implications for ineffectuality in defense of rights that would imply. To be fair to you, Lockean-style arguments about rights made a lot more sense in the 17th century, when at least some British subjects still supposed their sovereign ruled by divine right, and thus commanded God-like powers on their behalf.

In a society like that, Locke's scheme could be at least tenuously effectual, because a fair number of folks would still forbear, to stay on the good side of God. Not in this society, not anymore. The founders saw that change coming. You might even say they ushered it in.

[David Nieporent]

For vindication, you have only the power of the sovereign People to turn to.

No, they're the ones we need vindication from.

[Stephen Lathrop]

Nieporent, with that you deny the sovereignty of the People. You thus deny the Constitution itself. That alas, is where the logic of libertarianism tends to lead. By implication it explains why libertarianism cannot rightly be counted a theory of government.

Viewed as you would have it, the best anyone can say about libertarianism is to call it an ideologically-derived critique of government. Seen that way, libertarianism may at times prove constructive, or not, but it is never a foundation on which an alternative government can be built. You have explained by example why most folks will always conclude that as a theory of government, libertarianism is so manifestly incompetent that its advocates comprise mostly heedless youngsters and older cranks.

[Don Nico]

Stephen,
Your concept of the People's Sovereignity is so far over the top that is a mockery of itself.
Can you really believe that the People control the army and the nukes. Don't you understand the meaning of official US doctrine enunciated by every POTUS in his Nuclear Posture Review and de facto accepted by the Congress: "The President of the United States is the sole authority who can authorize the employment of nuclear weapons."
Where is ANY mention of the People in that?

[benji]

He didn't mention sky-power or the sky or God or anything like it, he mentioned our creator. Do you doubt you were created? Did you simply pop into existence?

[Martinned]

Given that this case wasn't about impeachment, I very much doubt that it sheds any light on how one part of the constitution (the first amendment) might constrain another part (the impeachment clauses).

[SimonP]

In typical fashion, Josh is choosing to read into this opinion an interpretation designed to support a very different conclusion.

What's interesting here is that, at the Fifth Circuit, Wilson argued that his First Amendment rights were infringed by the Board purporting to bar him from future membership due to his advocacy. The Fifth Circuit rejected this argument, reasoning that he wasn't entitled to be a member of the Board, so there was no cognizable "retaliation" for his speech. Cite Gorsuch on accountability to the electorate, etc., here. The Fifth Circuit instead found for Wilson on a more narrow analysis of the Board's censure.

So this case actually undermines Josh's broader argument that there is some constitutional limitation on Congress's ability to impeach Trump for exercising his own "free speech" rights. Trump isn't "entitled" to be president, and he's not "entitled" to be free from impeachment and removal from office under the impeachment clause. His argument remains as circular as it ever was.

[Jason Cavanaugh]

"This basic principle was contested during President Trump's second impeachment trial."

No, it was not.

[Purple Martin]

Yup, as soon as I read that subtitle, I preliminarily assumed Prof. Blackman would introduce a non-sequitur as support of an unrelated pet theory he wanted to push.

So I read the piece. Confirmed

[benji]

Well, you don't necessarily need to read the subtitle, just see that it was a Josh post.

[Jimmy the Dane]

America had a good run, but we are now nothing more than a Banana Republic.

The same leftist tards that tried to railroad Kavanaugh and thought it was perfectly acceptable to turn his hearings into a circus are now basically yelling at Republicans who asked hard questions toward a nominee they prefer and calling them racist. If you read the between the lines of any op-ed this morning the basic conclusion is white people shouldn't be able to ask black people questions.

Trump's second impeachment trial was basically the same tard-isms. Mad leftists who didn't know what else to do but publicly cry and point fingers. There was no "rule of law" going on during this entire sham proceeding. It was all just more banan-republic-ism playingout.

Need more proof? Plenty of political prisoners currently being held in DC for what, trespassing? NYC and San Fran don't even keep murderers in jail pending trial anymore, but for some reason there is a moral imperative to keep some guy who walked around the capitol building for 15 minutes in jail with no bail.

Clown world no longer is sufficient enough to sum this all up.

[Rev. Arthur L. Kirkland]

Disaffected, defeated, desperate, delusional, bigoted right-wingers are among my favorite culture war casualties.

May better Americans never tire of stomping conservatives' ugly, stale thinking into irrelevance in modern America.

Being half-educated, superstitious, gullible, and bigoted does -- and should -- have consequences.

[Jimmy the Dane]

So says the useful idiot....

[Bored Lawyer]

While this decision seems to be correct, I fail to see what it has to do with Trump's impeachment. Is there some free speech defense he had that someone wanted to deny him?

[David Nieporent]

Trump was impeached¹ for inciting the insurrection. Some completely partisan hacks like Blackman and Turley tried to argue that the 1A protected his speech and therefore he couldn't be impeached for it.
​
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¹The second time. The first time, of course, he was impeached for extorting Ukraine by withholding vital American military aid to get them to fabricate stuff about his political opponent.

[Bored Lawyer]

Well, I would think "inciting" would have to be limited in some way to accomodate free speech. Direct call for an insurrection, as opposed to just saying generally that Biden and his forces cheated. But I think that is already built into the charge.

[Purple Martin]

The point Prof. Blackman ignores is that constitutional impeachment of a President is not limited to an act defined as a crime by statute, such as incitement, insurrection, or sedition.

It is the sole responsibility of the House to define the act warranting impeachment, and of the Senate to convict or not convict based on that act. In that, Senators may consider Bill of Rights arguments but are not constrained by them.

[benji]

Yes, many seem to think a "crime" must be involved to impeach the President (or at least Trump) and so defenses against criminal charges are important. But that only matters to an extent the Senate cares about them since all they're doing is firing someone.

[Stephen Lathrop]

Nico, a thought experiment for you.

POTUS announces, "Henceforth, regardless of what Congress, the Courts, or the People themselves may say, I reserve to myself the power to launch nuclear weapons at pleasure, against any target, anywhere, at any time."

Polling shows that large majorities in every state disapprove of the President's announcement. Following the polling, the House impeaches the President, and the Senate removes him from office.

What happens next?

In my view, the Vice President gets sworn in, and that is the end of it. Do you suppose otherwise? Maybe a Supreme Court case?