The Lawfare Podcast

Lawfare Archive: Why the First Amendment Doesn’t Protect Trump’s Jan. 6 Speech

Sep 2, 2024

In this engaging discussion, legal experts Alan Rozenshtein, a senior editor at Lawfare and associate professor at the University of Minnesota Law School, and Jed Shugerman, a professor at Fordham Law School, dive into the First Amendment's complexities regarding Trump's speech on January 6. They analyze whether his remarks could be seen as incitement to violence and explore the nuanced legal standards influencing this debate. The conversation also touches upon the potential for criminal liability and the historical context surrounding insurrection laws.

43:23

Creator website

Episode guests

Ala

AI Summary

AI Chapters

Episode notes

Podcast summary created with Snipd AI

Quick takeaways

The complexity of First Amendment protections complicates the potential criminal liability of Trump’s January 6 speech, despite its provocative content.

Experts caution that prosecuting Trump for his rhetoric could set a dangerous precedent, blurring the line between political speech and criminal incitement.

Deep dives

First Amendment Implications of Trump's Speech

The discussion centers on whether former President Trump's speech on January 6, 2021, could be interpreted as incitement to violence, given its content. The First Amendment generally protects political speech, even when it might lead to lawless behavior, as established in the Brandenburg v. Ohio case, which sets a high threshold for criminalizing speech. Trump's exhortation to 'fight like hell' is viewed through a lens of ambiguity that complicates its potential legal ramifications, as it lacked explicit directions to commit violence. The speakers argue that this ambiguity may protect Trump from prosecution, as the speech alone does not clearly demonstrate intent to incite a riot or explain imminent lawlessness.

Intro

5min

Legal Complexities of First Amendment Speech

16min

Trump's Speech and January 6th Analysis

11min

Examining Obstruction of an Official Proceeding and First Amendment Concerns

2min

Insurrection Laws and Free Speech

12min

Podcast Conclusion and Sponsorship Highlights

2min

From October 28, 2022: There's been a lot of discussion about whether Donald Trump should be indicted. Lately, that discussion has focused on the documents the FBI seized from Mar-a-lago or the Jan. 6 committee's revelations about his efforts to overturn the 2020 election. But what about his speech on the ellipse on Jan. 6 when he told a crowd of thousands to “fight like hell,” and they went on to attack the Capitol? Isn't that incitement?

Lawfare executive editor Natalie Orpett sat down with Alan Rozenshtein, a senior editor at Lawfare and an associate professor at the University of Minnesota Law School, and Jed Shugerman, a professor at Fordham Law School. Alan and Jed explained the complicated First Amendment jurisprudence protecting political speech, even when it leads to violence, and why they believe that given everything we know now, Trump may in fact be criminally liable. They also reference Alan and Jed’s law review article in Constitutional Commentary, “January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution.”

To receive ad-free podcasts, become a Lawfare Material Supporter at www.patreon.com/lawfare. You can also support Lawfare by making a one-time donation at https://givebutter.com/c/trumptrials.

Support this show http://supporter.acast.com/lawfare.

Hosted on Acast. See acast.com/privacy for more information.