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OpEdNews Op Eds    H2'ed 2/3/21

Trump's Reckless Speech, Impeachment, and the First Amendment

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Senator Mitch McConnell described the Jan. 6, 2021 violence at the U.S. Capitol:

"This mob was fed lies. They were provoked by the President and other powerful people. And they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like."

One might imagine that McConnell declared that President Donald Trump and other powerful people are guilty of inciting the insurrection at the Capitol. However, McConnell's above speech never indicated how he will vote in the impeachment trial.

Ironically, someone in the U.S. could unintentionally but recklessly provoke violence and face no criminal charges for inciting violence because the First Amendment protects free speech with limited exceptions. For example, the Supreme Court lowered the bar of free speech when it developed the standard of "imminent lawless action," that is, speech that intentionally encourages imminent and likely illegal activity.

The Supreme Court lowered the bar of free speech in its landmark decision called Brandenburg v. Ohio (1969). That is, Klu Klux Klan leader Clarence Brandenburg was guilty of charges for advocating violence according to the State of Ohio criminal code because he publicly discussed the possibility of violent revenge against African Americans and Jews. Brandenburg's lawyer took the verdict to the Supreme Court who determined that the First Amendment protects free speech unless the speech intentionally encourages imminent lawless action. In this case, Brandenburg's abstract public discourse did not fail the test of imminence and likeliness.

I qualify that various reckless free speech breaks no U.S. criminal law, yet it can cause major problems for employment with many companies. Also, reckless action can result in criminal charges or civil lawsuits while the legal definition of "recklessness" refers to recklessly ignoring obvious risks.

Consider the case of Trump's 2021 impeachment while U.S. impeachment law differs from U.S. criminal law. Quotes from the article of impeachment follow:

  • "Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States ...."
  • "President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials."
  • "There, he reiterated false claims that 'we won this election, and we won it by a landslide'. He also willfully made statements that, in context, encouragedand foreseeably resulted inlawless action at the Capitol ...."

If Trump faced criminal charges for inciting violence, then Trump would endure a guilty verdict if the jury would unanimously vote that Trump is guilty beyond all reasonable doubt of intending to encourage imminent and likely violence. For example, the legal definition of "incitement" in US criminal law implies deliberate encouragement because of Brandenburg v. Ohio.

However, US impeachment law could be flexible with the definition of "incitement" while holding government officials to standards of responsibility higher than Brandenburg v. Ohio.

I note this difference between criminal law and impeachment law because I doubt that a unanimous criminal jury would convict Trump of deliberately provoking violence. Regardless if my doubt is right or wrong, the Senate trial can take liberty to define "incitement" and needs only two thirds of the Senators to render a guilty verdict for provoking the insurrection. Then, a simple majority vote would disqualify Trump from ever again entering the government arena while recklessly provoking the public.

Some say the US will heal faster if the Senate dismisses Trump's trial, especially since Trump already ended his term. However, dismissing the trial would permit Trump to return to politics and continue his reckless speech in the government arena. I guess some would see that as "Return of the Jedi" and others as "Revenge of the Sith."

Consider the following. Trump persistently ignored Republican allies who said that no evidence supported his accusations that major voter fraud stole the election from him. Plus, he persisted with endless lawsuits and rhetoric that provoked outbursts among violent far-right proponents. The violent outbursts climaxed with the insurrection that put all members of Congress in imminent danger, and Trump recklessly delayed condemning the insurrection. This resulted in bipartisan condemnation of how he handled losing the 2020 election. Death threats continue against government officials.

If the prosecution acts wisely and enough Republican Senators decide to definitively end Trump's political career because they deem him too recklessly dangerous for political campaigning and office, then so be it.

-the end-
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James Goetz is a philosopher, theologian, and member of the National Coalition of Independent Scholars. His published conjectures include the universal wormhole, semiclassical theism, semiclassical Christianity, Relative-Social Trinitarianism, (more...)

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