Impeachment, Incitement, and the First Amendment

Did President Trump’s January 6 speech prior to the attack on the Capitol constitute the crime of incitement? Is it necessary to demonstrate that it did in order for the Senate to find him guilty of incitement as a high crime and misdemeanor under the Impeachment Clause and convict him? What are the relevant legal and constitutional standards? Catherine Ross, George Washington University Law School professor and author of the forthcoming book A Right to Lie? Presidents, Other Liars, and the First Amendment, and Josh Blackman, professor of law at South Texas College of Law in Houston whose work has been cited by President Trump’s defense team during this second impeachment trial, join host Jeffrey Rosen to debate those questions.

Some terms that will be helpful to know this week:

• “The Brandenburg test”: In Brandenburg v. Ohio (1969), the Supreme Court established that speech could be punished in a criminal trial only when the speech is:
• “directed to inciting or producing imminent lawless action” AND
• “likely to incite or produce such action”
• Impeachment: per Article II, Section 4 of the Constitution, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Resources and transcript available at constitutioncenter.org/interactive-constitution/media-library

Questions or comments about the show? Email us at podcast@constitutioncenter.org.