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  • Eric A.S. Harvey, JD

Is First Amendment Absolutism Problematic in Wake of The Capitol Hill Riot?

Updated: Feb 2

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By Eric A.S. Harvey, JD


COPYRIGHT PENDING 2021


For better or worse, President Donald J. Trump’s incendiary "calls to action," that may have resulted in the Capitol Hill riot, occupy a part of judicial history yielding precedent that could afford him free speech protections under The First Amendment. This claim is not an endorsement of his conduct. It is also not meant to suggest that this article necessarily indicates agreement with the contention that President Trump's words, prior to and even during the riot, constituted "incitement to insurrection." What is written herein is merely an observation. However, while this article is not meant to compromise pushes for greater observance of universal First Amendment protections, this analysis of the riot may problematize First Amendment absolutism, given that protections for such speech that might have resulted in the Capitol Hill tragedy could be a factor in emboldening some of the more problematic Trump-like figures engaged in speech comparable to his during the civil unrest last week.



A Review of the Tragic Events at The Capitol Hill Riot:


As most of the world knows, a violent pro-Trump rally became a scourge upon the streets of Washington, D.C. last week.


Primarily hoping to overturn President-elect Joseph R. Biden, Jr.’s victory in the November presidential election, rioters descended upon The United States Capitol, destroying government property, causing the violent deaths of five people, attempting to destroy Electoral College certificates of ascertainment used to established electors’ credentials, and intending to throw a wrench into the progress of counting votes cast by members of the Electoral College—all of which are crimes likely to be heavily penalized to the fullest extent of the law. As Vice-President Mike Pence Tweeted mid-afternoon 6 January 2021, “This attack on our Capitol will not be tolerated and those involved will be prosecuted to the fullest extent of the law.” (Available at https://twitter.com/mike_pence/status/1346918222432374785, Accessed 11 January 2021.)


In response to the civil unrest, President Trump dragged his heals in mobilizing The National Guard to quell the mob, as Vice-President Pence “encouraged a more rapid deployment,” while he was in contact with The Pentagon, NewsWeek.com reported recently. (Available at: https://www.newsweek.com/fact-check-did-trump-call-national-guard-after-rioters-stormed-capitol-1560186, Accessed 11 January 2021.) Ultimately, after having “to be convinced,” President Trump capitulated to demands that he make use of The National Guard, and he authorized its deployment. This may have eventually caused dispersal of the rioters by nightfall. However, it was not without trauma that this event came to pass. Ibid.


To illustrate how disturbing the Capitol Hill riot was, let’s review the fallen. Amongst the dead, as catalogued earlier today by The New York Times in Who Are the 5 People Who Died in the Capitol Riot?, were:


(1) Police officer Brian Sicknick, 42, who succumbed to wounds a day after he assisted in suppressing the rioters and was “’truly a lovely, humble soul’ with a diligent work ethic” that “loved and spoiled his dachshunds,” The New York Times revealed;


(2) Ashli Babbitt, 35, a Trump-supporter and QAnon conspiracy theory enthusiast that was shot and killed by a police officer, as she attempted to enter Speaker of the House Nancy Pelosi’s congressional office through a broken window;


(3) Kevin D. Greeson, 55, whose family described him as a loving father, and who allegedly attended the disastrous rally not to engage in violence, but only to peacefully support the false claims of election fraud President Trump has promulgated;


(4) Rosanne Boyland, 34, another QAnon conspiracy theory advocate in recovery from drug addiction with dreams of becoming an addiction counselor; and,


(5) Benjamin Phillips, 50, a founder of pro-Trump website Trumparoo, which he marketed as a, “social network where American Patriots can mobilize against the corrupt communist Marxist scummy democrats.”


Available at: https://www.nytimes.com/2021/01/11/us/capitol-riot-victims.html, Accessed 11 January 2021.


To further illustrate the seriousness of the Capitol Hill riot, let’s draw attention to how Babbitt, mentioned above, was later celebrated as a martyr by Trump supporters engaged in challenging the election, The New York Times also reported today. Possibly of equal consequence is that her death at the hands of a police officer led to an excessive force investigation against the law enforcement official that allegedly killed her.


As should already be obvious, these are unquestionably serious crimes, allegedly perpetrated both by supporters and opponents of the pro-Trump civil unrest. In many cases, these crimes can be viably construed as federal ones, given that murder of a police officer is a Class C felony, that legal standards for identifying excessive force may occur within the purview of federal statutes, and that these crimes occurred on federal property.



President Trump’s Conduct Prior to and During the Riot:


What precipitated this course of events? It is widely argued that President Trump had a precipitative influence on this quite lethal disaster.


On 6 January 2021, President Trump attended a “Save America March” and addressed a rowdy crowd of supporters convinced of his claim that the election had been “stolen” from him, telling them to “fight like hell” and “take back our country.” He then encouraged those at the rally to march onward onto the Capitol. Meanwhile, former Mayor of New York City and lawyer for President Trump Rudolph Giuliani asserted the need for “trial by combat.” Concurrently, President Trump issued a warning against his opponents, saying, “We’re coming for you,” after he had for weeks called for “total war.” In the ensuing chaos, not only did the five aforementioned deaths occur, but also assaults on reporters were rampant, while protesters chanted “Hang Mike Pence” and sought to take lawmakers hostage, many news publications have reported.


The congressional chambers were cleared by security officials, and improvised explosives were later found at the scene, NBCNews.com reported last week. (Available at: https://www.nbcnews.com/politics/congress/live-blog/electoral-college-certification-updates-n1252864/ncrd1253112#blogHeader, Accessed 12 January 2021.) As the violence progressed, President Trump commended the protesters as “great patriots” via Twitter, while he at the same time advised them to return “home in peace.” However, characterizing the protesters as “great patriots,” while still advising them to return “home in peace,” regardless of whether it seemed as if he were trying to pacify the offenders by saying the latter, may still amount to an endorsement of their violence. And, in the time since the election, Trump has regularly Tweeted with extremely strong language about the need to challenge the election, saturating his social media rhetoric with words overwhelmingly characterized by many as calls for “insurrection,” Adjunct Professor of Law at Cornell Law School and Professor of Law at Alexandria University in Egypt Mohamed A. Arafa, SJD observed earlier today during my interview with him.


Was President Trump Responsible for this Violence?:


Indications of how widespread the argument that President Trump engaged in “incitement to insurrection” (which is a constitutionally recognized grounds for impeachment, Professor Arafa pointed out) are found within countless articles released in the last week by many high-profile news publications. Such an example of this argument is found in the title and content of an article released by The New York Times only days ago, ‘Be There. Will Be Wild!:’ Trump All but Circled the Date” (Available at: https://www.nytimes.com/2021/01/06/us/politics/capitol-mob-trump-supporters.html, Accessed 11 January 2021.) Suggestively, the subtitle reads, Inside Trump supporters’ online echo chambers, the chaos of Jan. 6 could be seen coming. People posted their plans to come to Washington — and showed the weapons they would carry.” Ibid.


“Be there. Be wild!” Refers to one of the more bombastic Tweets by President Trump, reading in full, “Big protest in D.C. on January 6th! Be there. Be wild!” He posted this 19 January 2021. It was followed up by additional Tweets from him, which were meant to remind interested parties of the upcoming event. Against the backdrop of all of the problematic behaviors in which President Trump has engaged, Professor Arafa asserted the possibility of a criminal charge specifically alleging that President Trump acted as “an accomplice to an act of violence.”


Courier-journal.com reported recently that Twitter finally decided to permanently suspend President Trump's Twitter account after the following two Tweets, dated the morning of 8 January 2021. Those Tweets read:


(1) “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!;" and,


(2) “To all of those who have asked, I will not be going to the Inauguration on January 20th.”


After Twitter permanently suspended President Trump's Twitter account, Twitter released the following statement, after reasoning that President Trump's mention of not attending the Inauguration was another attempt, only two days after the riot, to reinforce the notion that the election was fraudulent, and as such an attempt would increase the likelihood of future violence:


"Our public interest framework exists to enable the public to hear from elected officials and world leaders directly. It is built on a principle that the people have a right to hold power to account in the open."


Available at: https://blog.twitter.com/en_us/topics/company/2020/suspension.html, Accessed 12 January 2021.


In the same statement, Twitter continued:


"[...] we made it clear going back years that these accounts are not above our rules entirely and cannot use Twitter to incite violence, among other things. We will continue to be transparent around our policies and their enforcement."


Ibid.


In its justification for permanently suspending President Trump's Twitter account, Twitter asserted that he had violated its Glorification of Violence Policy, and that unless Twitter permanently suspended his account, it would be far more likely that future violence, predicated upon President Trump's claims in regard to election fraud, would occur. Ibid.


Given all of this, one would assume such speech by President Trump, both at “The Save America March” and on his Twitter feed, would not be protected by The First Amendment. However, to return to the claim made at the beginning of this article, which suggested that President Trump’s speech may fall within the scope of precedent that could protect it, his rhetorical attempts at “incitement to insurrection” and conduct as “an accomplice to an act of violence,” via his address at “The Save America March” and on his Twitter feed, may very well be protected.



Precedent that May Protect President Trump’s Speech:


To make this claim, although this article neither endorses this possible finding nor the opposite of such a finding, case law dating to 1969 is relevant. Precedent likely to protect President Trump’s speech before and during the onslaught against the Capitol was set into judicial record in landmark U.S. Supreme Court case Brandenburg v. Ohio, 395 U.S. 444 (1969), roughly a year after Civil Rights trailblazer Martin Luther King Jr.’s and Civil Rights Movement advocate and 1968 presidential candidate Robert F. Kennedy’s assassination and the civil unrest at the 1968 Democratic National Convention. In the same year as Brandenburg and roughly a year after the aforementioned traumatic events, The Manson Family butchered actress Sharon Tate (pregnant for eight and a half months) and four other people. Of particular importance in regard to Brandenburg is the test developed in this case for determining whether incendiary speech comparable to President Trump’s is protected under The First Amendment. This test, the “incitement to imminent lawless action” test, gauges whether speech is “likely” and “imminently” to cause “lawless action.” If speech is “likely” and “imminently” to cause “lawless action,” it is not protected by The First Amendment, the court in Brandenburg found.


In Brandenburg, Ku Klux Klan leader in rural Ohio Clarence Brandenburg was convicted of violating:


“[…] the Ohio Criminal Syndicalism statute for ‘advocat[ing]…the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ and for “voluntarily assembl[ing] with any society, group or assemblage or person formed to teach or advocate the doctrines of criminal syndicalism.”


Brandenburg v. Ohio, 395 U.S. 444 (1969).


Brandenburg, the appellant, had phoned a radio station to invite its reporters to a Ku Klux Klan rally, which he ultimately attended and where he delivered a speech replete with disgusting epithets directed against Black and Jewish people. The speech, reminiscent of President Trump’s condemnation of minorities during his first run for President and filled with the kinds of language President Trump used as a possible “accomplice to an act of violence” during the Capitol Hill riot, reads like a catalogue of racist and bigoted terms used to further disenfranchise already severely victimized people. It is Brandenburg's choice of words in regard to violence, and not his diction in regard to race, that justifies drawing attention to the similarity between Brandenburg's and President Trump's words. After all, as far as news publications have reported, Trump did not use racial epithets in his riot-related Tweets and during his address prior to the riot. Brandenburg's speech also calls for violent action against minorities solely on the basis of their race and religion. As the speech delivered by Brandenburg is so filled with frequent use of the n-word, it will not herein be quoted.


Nevertheless, the Majority in Brandenburg asserted that:


“[…] the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”


Ibid.


Claiming this, The Court overturned Brandenburg’s conviction. In other words, Brandenburg’s speech, strikingly similar to President Trump’s in its strong language advocating use of violence, was not recognized by the highest court in America as characterized by the “likely” and “imminent” elements of the “incitement to imminent lawless action” test. Ibid.


Conclusion:


Now, the question is: Is President Trump’s speech, both at “The Save America March” and in his Tweets,” protected by The First Amendment, given the precedent set in Brandenburg. Or might he face criminal prosecution for acting as “an accomplice to an act of violence,” as Professor Arafa had specified to be the possible criminal allegation against President Trump?


It is up to any American court that may try President Trump to determine whether his words at “The Save America March” and in his Tweets satisfied the “likely” and “imminent” elements of the “incitement to imminent lawless action” test. However, given the similarity of President Trump’s and Brandenburg’s rhetoric, it seems that a court might be far more likely to observe constitutional protections for President Trump’s speech than it would be to uphold any possible criminal penalty.


Whether or not it is truly right or just to find that President Trump’s words before and during the tragedy at Capitol Hill deserve First Amendment protection that would override a possible criminal penalty, it is still a possibility that his speech is constitutionally protected. Given the trauma at Capitol Hill against the backdrop of recent civil unrest in The United States, you would think that President Trump’s speech would most certainly be immediately recognized as an egregious crime to be invariably recognized as such and deserving of the most severe of punishments. And given the similarities of the socio-political terrains in which Brandenburg and President Trump's speech prior to and during the riot occurred, the notion that recognition of President Trump's speech as criminal should likely be completely prevalent.


It is argued that President Trump has done nothing but perpetuate societal ills that America should have overcome during The Civil Rights Movement and the corruption of The Nixon Administration. But it is also possible that The First Amendment may afford him a shelter against criminal conviction for using speech that is characterized by the “likely” and “imminent” elements of the “incitement to imminent lawless action” test. Perhaps, The First Amendment may create an impediment towards the realization of a more just America. Perhaps, it won’t. That remains to be seen. But, although it is the opinion of this writer that The First Amendment is the greatest guarantor of our liberal democracy and democratic republic, it is certainly reasonable to ask in the wake of the Capitol Hill riot whether First Amendment absolutism is as emblematic of justice and equality as what the Founding Father’s conceived of The First Amendment to be.


(Note: Allusions to The Nixon Administration in discussions of President Trump are particularly well-articulated by writer at TheAtlantic.com Ronald Brownstein in "In Huge Snag in Trump's Reelection Pitch," when Brownstein writes, "That’s a key difference from Richard Nixon, whose 1968 law-and-order campaign has inspired Trump’s offensive this summer. Although most Americans may have believed that Nixon could deliver order, many now say that Trump’s confrontational approach on racial issues increases the risk of violence." In this article, Brownstein is analyzing President Trump's strategy for reelection on a "law and order" platform, which is reminiscent to varying degrees of President Nixon's policies during his time in the presidential limelight. President Nixon's policies were also characterized by a commitment to law and order in the wake of the civil unrest during the late 1960s thru immediately prior to and during President Nixon's reelection campaign. Available at: https://www.theatlantic.com/politics/archive/2020/09/why-trumps-law-and-order-message-could-backfire/615946/, Accessed 12 January 2021.)


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