There’s a game people play when opening their fortune cookies. You read your fortune out loud and add “in bed” at the end. It’s not so much a game, I guess, as a reliable way to make jokes.
If I were one of Donald Trump’s lawyers, I’d probably ask, first, if my client had access to a time machine and could go back to January 6, 2021, and add “at the ballot box” or “with nonviolent means” to the end, and maybe sometimes the middles, of many of the sentences he uttered. (Yes, “in bed” would also be an option.)
Then he might have an argument that, during his speech at the Ellipse, he was advocating for peaceful democratic behavior and not violence in the form of sacking the Capitol, breaking doors and windows, menacing an entire branch of the U.S. Government, killing a police officer and injuring many others, threatening to hang the vice president, stealing Jim Clyburn’s iPad, using fire extinguishers and flag poles to beat other citizens, burning and stomping on equipment belonging to the Associated Press, and, oh yes, don’t forget, delaying the constitutionally prescribed work of the government.
But time machines are hard to come by, and I’m not a lawyer.
News outlets are reporting that Alan Dershowitz is likely to be one of President Trump’s impeachment lawyers. We might read Dershowitz’s recent editorial in Newsweek, “Impeachment Over Protected Speech Would Harm the Constitution,” then, as a preview of the impeachment trial defense.
And so it is that the defense of Trump is likely going to be that he didn’t incite an insurrection. He merely advocated for one.
Dershowitz writes that impeaching Trump for inciting an insurrection threatens “the line carefully drawn by First Amendment jurisprudence between those who advocate unlawful conduct and those who commit it.”
Pause on that for a moment: “those who advocate unlawful conduct.”
What the President’s likely lawyer is saying is that the President advocated for the insurrection, for the use of force against the government, but that he didn’t incite that violence and lawless action.
This is a kind of confession. It’s like the defense attorney who, in his opening statement to the jury, admits that his client killed someone and then stresses that “killing isn’t the same as murder.” Dershowitz describes the President’s speech at the Ellipse on January 6, 2021, as “a constitutionally protected speech that caused several hours of inexcusable violence.”
He admits that Trump’s speech was the “‘but for’ cause of the resulting violence.” The insurrection wouldn’t have happened without him. It wouldn’t have happened if not for what he said.
According to Dershowitz, who is more than likely— and once again—one of the President’s lawyers, Donald J. Trump’s speech caused the violence on January 6, 2021.
While we’re opening our fortune cookies, it might be a good time to think about John Stuart Mill’s corn-dealer.
In On Liberty (1859), John Stuart Mill acknowledges that, in thinking about whether someone should be allowed to say what they’re saying, whether we should inhibit their speech by punishing it or preventing it, the context matters:
No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed out among the same mob in the form of a placard. Acts of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavorable sentiments, and, when needful, by the active interference of mankind. The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people.
Speech may be constrained if it causes harm. If the speech is bad but not too harmful, we can battle it with other speech—“unfavorable sentiments”—but then, at some point, if it’s bad enough, if the harm is serious enough, we must restrict the speaker’s liberty to speak.
If a nuisance has been made, according to Mill, you might need to punish the speaker for the speech.
Mill is a British philosopher from another century, and perhaps we’re not convinced that nuisance is enough.
But the rules in the U.S. aren’t so different from what Mill articulates. In fact, Mill anticipates the “time, place, and manner” restrictions to free speech codified in various decisions—Cox v. State of Louisiana (1965), Grayned v. City of Rockford (1972), and Ward v. Rock Against Racism (1989)—of the U.S. Supreme Court. Both John Stuart Mill and the United States Supreme Court (in interpreting the U.S. Constitution) have landed on the same shores: None of us has unlimited and absolute freedom of speech all the time and in every place and in every situation.
The content of the speech itself—about corn dealers being starvers of the poor—is fine as long as the context provides for a limited chance that it will cause harm: an op-ed in the newspaper, for instance.
Both the content and the context matter.
And context may matter more. Speech becomes a nuisance, in Mill’s example, largely because of the context: proximity to the “house of a corn-dealer,” presence of an “excited mob.”
The Article of Impeachment passed by the House of Representatives on January 13, 2021, includes some context:
The context, we know, also includes various other facts not mentioned in the Article of Impeachment, including but not limited to:
Dershowitz is right that mere advocacy for the use of force or for law-breaking is protected speech in the United States. The successful appellant in Brandenburg v. Ohio (1969), for instance, was a Ku Klux Klan leader in Ohio who at a meeting was recorded saying that theirs was “not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” The Court found that the man’s speech, because it did not immediately result in lawless action, was advocacy rather than incitement.
The Court articulates the distinction in Noto v. United States (1961): “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.”
If the Ku Klux Klan members, having heard their leader’s words, got in a car and drove to D.C. and broke through the barriers around the Capitol and sought out the Speaker’s office while holding zip-tie handcuffs, then the leader’s words, those same words, are no longer abstract advocacy.
It’s such a strange, unsettling idea, so novel a phrase to articulate, that I think it needs to be repeated: The argument Alan Dershowitz is putting forward is that the President of the United States was advocating, abstractly teaching the moral necessity of, violence against the government of the United States, just like that KKK leader from the early 1960s.
I understand the desire to distinguish between “advocacy” and “incitement” by some other means, perhaps through a kind of clarity test: Was the speech act clear in meaning to those who heard it?
But notice in Mill’s example that the speech can be curtailed through the “active interference of mankind” not only if the speech asks specifically for a nuisance to be made. The speaker outside the house of the corn-dealer, or the President of the United States, need not say anything as explicit as “Here’s the law I’d like you to break . . . . ” or “Now is the time to use violent force to get me what I want . . . .”
For the President’s speech not to be protected by the First Amendment, the bar is actually much lower, according to Brandenburg v. Ohio: the advocacy of lawbreaking or violence merely needs to incite or produce imminent lawless action and be likely to incite or produce such action for it to lose its First Amendment protection.
Because we know that the lawless action did in fact occur immediately after the President’s speech, the next question is whether the lawless action was likely to result from the speech itself.
I can’t imagine Dershowitz or anyone else arguing with a straight face that the speech caused the insurrection but that the resulting violence was somehow an unlikely outcome of the speech, in context.
In order for the President’s speech to be protected under the First Amendment, wouldn’t it need not to be the but-for cause of the insurrection that followed?
Once the Capitol was breached and the President didn’t immediately communicate a message—that's not what I meant! you misunderstood me! no, don't do that! stop now!—his abstract advocacy for insurrection starts to look a lot like incitement to insurrection.
The First Amendment might protect the President’s speech if the context were radically different, if the speech had occurred on December 6 instead of January 6. If the speech had been delivered not 2.4 miles from the Capitol but in an untelevised, you-have-to-be-there-to-hear-it event in Fairbanks, Alaska, on the day the Joint Session met to count the electoral votes, so that the insurrectionists could not, after listening to the speech, so imminently turn toward mayhem, maybe then . . . .
But time machines are hard to come by.
Richard Sonnenmoser writes about fatherhood, music, pop culture, and politics. He’s had fiction, poetry, and nonfiction published in Harvard Review, West Branch, Crab Orchard Review, Permafrost, Big Muddy, and others.