For 40 years, I taught college classes on the history of freedom of speech. They focused on Supreme Court rulings that interpreted the meaning of the First Amendment clause prohibiting Congress from enacting a law that abridged that freedom. So I paid close attention to the recent debate over whether former President Donald Trump incited the violent riot that swept through the U.S. Capitol at the cost of five lives. Or were his words protected under the First Amendment?
According to an oxymoronic caption beneath a New York Times photograph (Feb. 11), Trump’s words “may be legally defensible, yet impeachable.” Lead House of Representatives impeachment manager Rep. Jamie Raskin (D-Md.) concluded that Trump “surrendered his role as commander in chief and became the inciter in chief of a dangerous insurrection.” An accompanying article by Times Supreme Court correspondent Adam Liptak explored the legal meaning of “incitement” and whether Trump should be found guilty for his inflammatory words.
For more than 50 years, the court’s decision in Brandenburg v. Ohio (1969) has been recognized as the determinative legal precedent. It unanimously overturned the conviction of a Ku Klux Klan leader who had urged his followers at a public rally to “send the Jews back to Israel” and to consider “revengeance” against “Niggers.” The court held that the government cannot constitutionally punish abstract advocacy of force or the violation of law. The test was whether the speech is “directed at inciting or producing imminent lawless action” and is “likely to incite or produce such action.”
Not only is there legal precedent, but Trump precedent, to consider. In a 2016 campaign rally, he pointed at protesters and told his followers to “get ’em out of here.” The protesters, who were subsequently assaulted, sued Trump for inciting a riot. Adam Liptak, clearly indicating which side he is on, devoted nearly two columns to the decision by Judge David J. Hale of the Federal District Court in Louisville (Kentucky) permitting the lawsuit against Trump. But Hale was overruled by a federal Appeals Court ruling, citing the Brandenburg precedent, that Trump’s words were constitutionally protected by the First Amendment.
What did Trump say to his followers in January? He stated: “All of us here do not want to see our election victory stolen by emboldened, left, radical Democrats.” Urging them to “show strength” and “fight like hell,” he said, “we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women.” Trump added: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
Trump’s impeachment lawyers insisted that his words were “core free speech under the First Amendment.” But House impeachment managers imaginatively insisted that the First Amendment “protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office.” Can it be that the only American ineligible for First Amendment protection is the president of the United States?
There are ways other than a flawed impeachment trial for the removal of a leader from office. Consider, by contrast, Israeli Prime Minister Benjamin Netanyahu, under indictment for bribery and fraud, who faces trial in March and elections thereafter. Voters, not Knesset members, will decide whether he remains in office. Might it not be preferable for American lawmakers to rely on the democratic process for removing an elected leader? Trump had already been effectively “removed” when he was defeated for re-election. The trial clearly was a political weapon for the pleasure of Democrats’ revenge.
Democrats may have enjoyed their moment of infuriated righteousness, but the blatant politicization of a legal process is not to their credit. If they had suppressed their fury (and followed the Israeli model), they would have recognized that voters had already removed Trump from office. Once he had retreated in defeat to Mar-a-Logo, with his presidency ended in disgrace, impeachment became more a self-congratulatory Democratic game than a serious legal process. And, by Senate vote, it failed. The Israeli model, at least in this instance, reveals its superiority. When voters have chosen to reject their leader by electing his opponent that should suffice. It’s called democracy.
Jerold S. Auerbach is the author of “Hebron Jews: Memory and Conflict in the Land of Israel” and “Print to Fit: The New York Times, Zionism and Israel 1896-2016,” which was recently selected for Mosaic by Ruth Wisse and Martin Kramer as a “Best Book” for 2019.