Written by Guest Author: Oliver Pope
11th February 2021
It has been over three weeks since Joe Biden was sworn in as the 46th President of the United States. Since this time, former President Trump has mostly fallen under the radar – remaining banished from the mainstream social and news media. However, all that is about to change as the Senate Impeachment hearings ramp up. Inevitably, the trial will revolve around whether Donald Trump’s language surrounding the January 6th Capitol Riot constituted incitement of insurrection. If the Senate convicts Trump on these charges, he could ultimately be prevented from ever holding office again. Such a conviction will have far-reaching constitutional, political and social ramifications, with freedom of speech being at the forefront of the debate.
Many strongly argue that Trump’s actions transcend the boundaries of free speech. Instead, I argue that in reality, the issue is more complex, more contextual and more nuanced and is further complicated when examined through a legal, political and/or moral lens.
The First Amendment in the United States Constitution protects freedom of speech, allowing individuals and collectives to express opinions – both popular and unpopular – unless their speech directly incites violence. His reckless tweeting on January 6th – in which he concurrently decried election fraud whilst encouraging peaceful protests – is not the primary focus of the impeachment trial. Rather, the trial is predicated on Trump’s spoken rhetoric at his rally in Washington DC and the phrase, “if you don’t fight like hell, you’re not going to have a country anymore”.
Although I am no Constitutional lawyer, I argue that from a legal viewpoint, what Trump said likely does not constitute incitement. Firstly, the US Courts generally observe that political speech is at the ‘core’ of the First Amendment and is thus, strictly protected.It also matters in what forum the address is made. Traditional public forums such as parks and sidewalks and designated public venues such as municipal theatres and meeting rooms are all strictly protected from government interference. Making a political speech at a political rally in the political heart of America as the President of the United States makes it very hard to build a case around incitement.
Despite this, some argue that the phrase “fight like hell” breaches the freedom of speech provisions under The First Amendment. In the Supreme Court case, Chaplinsky v New Hampshire, 315 U.S. 568 (1942), Justice Francis W. Murphy on behalf of a unanimous court ruled that ‘fighting words’ are words that:
“by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
Using the Justice’s judgement, it is difficult to argue that Trump’s words had little social value – millions of his supporters believed in the legitimacy of his election fraud claims – and there was substantive interest in what he had to say. Further, it is not just Trump who uses inflammatory language. Representatives including Chuck Schumer and Attorney General of Pennsylvania, Josh Shapiro have used the same phrase when talking to the media.
In reality, politics is an emotive and contentious arena of ideas, and thus, at times, divisive and potentially dangerous things may be said. We can all agree that the violence and chaos that occurred at The Capitol was horrific and heinous. However, during these times, it is not conducive nor unifying to uphold double standards and displays of hypocrisy. Rather, criminality should be totally condemned, and perpetrators convicted whilst still recognising the importance of free speech and individual autonomy. In doing so, we do not risk going down the slippery slope of speech regulation.
It can be concluded that no illegality was committed on the part of Trump. Yet, just because an act is legal does not necessarily make it right or moral. The context surrounding the events is an important consideration. We have to ask ourselves what we expect of our leaders. In times of crisis and division, our political leaders should work to unite, not divide and calm tensions rather than inflame. As President of the United States, Donald Trump swore an oath to protect and defend the United States against enemies foreign and domestic. He may not have legally incited the violence, but by reveling in ambiguity and dog-whistling, his reckless and ‘unpresidential’ rhetoric was an inflammatory force in the unfolding and escalating Capitol Riot.
So where to from here?
Ultimately, it may not matter whether Donald Trump’s actions were legal or moral. Impeachment is a pseudo-legal political show in which the jury consists of partisan politicians who either love or hate Trump. In fact, an actual crime (as defined in criminal law) does not have to be committed for a President to be impeached. Therefore, impeachment is rather a process where politicians can signal their virtue, score more political points in their political games whilst further dividing the nation and delaying critical legislation and coronavirus relief. Ironically, Trump’s brash and abrasive entry into the US political sphere, in which he aggravated underlying political partisanship, may well be the cause of his conviction. Put another way by Akiva Cohen on Twitter:
“Impeachment is a political solution to a political problem. It should be reserved for truly heinous behaviour that harms the country. But ‘this wasn’t technically a statutory crime’ should play exactly zero role in that analysis”
The former President’s four-year term and dual impeachments expose the truth of politics: it is a world rife with division, hypocrisy, power plays and political manoeuvres. Conviction of impeachment may be an appropriate punishment for his involvement in the Capitol Riots, but every politician and prominent media figure also has to answer for their involvement in exacerbating the tensions and divisions in America. Ultimately, the responsibility falls on voters to elect officials who will genuinely represent their interests, promote bipartisanship and uphold the Constitution and The First Amendment at all times, not just when it is politically convenient. Only then can the ‘swamp be drained’.
Let me know your thoughts in the comments below! All comments will be answered by the original author of the post 🙂
“Trump Impeached for Using Democrat’s Own “Fighting Words””
“Establishment to Thwart Democracy Using Old Dictator Tactic”
“Incitement: Is the President Guilty of Inciting the Riot?”
“READ: The House of Representatives’ article of impeachment against Donald Trump”
Legal Information Institute
“Does impeachment require criminal behavior? In a word, “No””