By Rose Dallimore
On Jan. 5, 2021, I made my usual pilgrimage from my hometown of Chattanooga, Tennessee, to Washington, D.C. Interstate 81 has been plastered with signs extolling the wisdom of two men who are important in rural Virginia — Jesus Christ and Donald Trump — for as long as I have been making the drive, but this trip was distinct. For the entire journey, I found myself amid a caravan of Trump supporters who had been called to protest the results of the 2020 presidential election by a campaign fueled largely through social media. The effort to #StopTheSteal was a baseless call propagated by networks of conspiracy theorists and encouraged by then-President Trump himself. Confederate and American flags flew side by side on the backs of cars and trucks, while stickers and cardboard cutouts of Trump jutted from trunks. Stickers on vehicles echoed many of the same messages, affirming the right to bear arms, Trump 2020, and freedom of speech. As I approached the District, I saw a man with the unmistakable red cap waving a Confederate flag from an overpass. The trucker in the lane next to me gave the man a supportive honk as he yelled unintelligibly and joyfully at the stream of traffic below. The only word I caught was “revolution.”
By 1:30 p.m. the next day, I understood the call to protest the election results and the hundreds of other grievances brought forth by the rioting Trump supporters was more serious than I could have imagined. The mob that gathered in front of the U.S. Capitol Building broke through barricades and trampled security while Congress was in the process of voting to affirm the election results, solidifying Joe Biden’s transition to the presidency. Everyone watching understood this moment was unlike any other in American history. The Confederate flag and the swastika were brandished through ransacked congressional offices as our legislators donned gas masks and scurried away to secure locations. As Democrats and even several Republicans pleaded with Trump to call off the crowd, the commander-in-chief equivocated, saying, “We love you. You’re very special” to supporters as he asked them halfheartedly to “go home.” The former president went so far as to refuse to call in the National Guard for needed backup security for hours until Mike Pence eventually made the call. In a video released on the White House Twitter the following night, Trump condemned the violence that occured after the fact but continued to defend his decision to seek legal recourse against the election certification and did not accept culpability for the events of the previous day.
In the aftermath of the insurrection at the U.S. Capitol, many have wondered how culpable Trump should be for the violence and attempted sedition that unfolded on Jan. 6. From fomenting the conditions that led to such a violent escalation and refusing to denounce forthrightly the actions the group was taking, did Trump finally push his Free Speech limits too far? Does a sitting president have the same rights to speech and expression as any private American citizen? Certainly his speech has a stronger impact.
Trump was swiftly punished by Silicon Valley tech titans and other private sector actors. In the days following the insurrection, he was banned from Twitter, Facebook, Instagram (a subsidiary of Facebook), Youtube, Reddit, Snapchat, Twitch, and other smaller social media platforms for his role in spreading misinformation and inciting violence. U.S. lawmakers, whose lives were threatened by Trump’s actions, also acted. The House impeached Trump for a historic second time Jan. 13 on charges of incitement of insurrection. In the article of impeachment, House Democrats outlined the history of Trump’s false statements about the legitimacy of the 2020 election, claims that he reiterated to his crowd of supporters in a speech just before they attacked the Capitol. The article excoriates the disgraced administration’s theme of lying, spreading misinformation, and pressuring state and federal government officials to uphold Trump’s version of the election narrative.
Some legal experts argue the instances mentioned in the article were protected by the First Amendment, regardless of who the speaker was and what position he held. In the article of impeachment, Democrats maintain Trump “threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of government. He thereby betrayed his trust as President, to manifest injury to the people of the United States.”
Insurrection is defined as a criminal act under Title 18 of U.S. Code, which reads, “whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” Herein lies the motivation to impeach and charge Trump with insurrection: It would prevent him from seeking elected office ever again.
As I listened to the impeachment debate in the House of Representatives, I heard three key arguments in Trump’s favor: the question of limits on speech, the analysis of his intentions, and the overall impact of his speech. Aside from Republicans’ oft-proffered desire “not to divide the country further,” the basis of their defense lay in the acceptance that speech and violence are not, in this case, equatable. Several representatives and others close to the president emphasized that Trump’s tweets and speeches, in the time leading up to the attack, did not clearly call for violence — or, at least, not clearly enough to meet the legal threshold for incitement. How, then, could Trump be culpable for how his speech acts were perceived and acted upon?
Some adherents claim a distinct line between Trump’s right to vitriolic but legally protected political speech and the incitement of violence.
It must be noted that a president has more social uptake and power to control and mobilize his listeners than any other American citizen. Also worth noting is the fact that violence was openly discussed on several online platforms in the days and hours leading up to the Capitol breach, including in an FBI memo issued the day before it happened. Yet, in the speech he delivered to his crowd of supporters on the morning of the insurrection, Trump encouraged his followers to march to the Capitol: “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.” He certainly never warned against the use of violence, force, or sedition, and he even promised to go along to the Capitol (though he actually did not).
Trump, in that moment, was talking to scores of supporters who had made their intentions clear on social media. But he has a history of doing so, too, having previously expressed his sympathy for and exploited the whisperings of internet conspiracy groups like QAnon, inspired a group of Michigan men to plot to kidnap Gov. Gretchen Whitmer (D), and famously told the Proud Boys — a neo-fascist, white nationalist group — to “stand back and stand by” rather than denouncing white supremacy and homegrown hate groups.
An example of another person once convicted of inciting violence through his political speech is the legendary presidential candidate, labor organizer, and socialist Eugene V. Debs. He ran up against the U.S. government several times for his protest and rhetoric, but in 1917, he was charged under the Espionage Act for a public speech he gave protesting U.S. involvement in World War I, particularly attacking the draft. He was arrested for allegedly attempting to cause anti-military insubordination and for his own refusal to serve.
Debs appealed his case on Free Speech grounds in 1919 to the Supreme Court. His appeal was unanimously rejected, with the opinion from Justice Oliver Wendell Holmes outlining that “such a speech is not protected because of the fact that the purpose to oppose the war and obstruct recruiting, and the expressions used in that regard, were but incidental parts of a general propaganda of socialism and expressions of a general and conscientious belief.”
The decision rested on a precedent set earlier that year in Schenck v. United States, which ruled that detaining an individual for passing out anti-draft materials was constitutional. This case established the general rule that speech could be restricted if it presents a “clear and present danger” of violence or to the government. This “test” of speech conditionality, along with the similar “incitement to imminent lawless action” test, have since been employed by the courts in cases of alleged seditious libels and related matters.
Given the nature of Debs’ speech and the climate of anti-socialism at the time, Free Speech advocates have historically interpreted his conviction as a flagrant violation of his First Amendment rights, and while his sentence was commuted by President Warren Harding in 1921, his has remained an influential case. While no one is suggesting that Donald Trump be charged under the Espionage Act, the precedent for prosecution for anti-establishment inflammatory speech, particularly of those known to have a particular degree of power and influence behind their rhetoric — and thus a captive audience — does exist.
The events of Jan. 6 and their aftermath have raised questions for the American people as to whether speech itself can be insurrectionist, especially if the speaker has significant authority. This is not a question to be taken lightly, and the events of Jan. 6, 2021, certainly have shaken the constitutional foundations that have strengthened this democracy since its founding. In the impeachment proceedings and beyond, prosecutors will have to look closely at Trump’s exact words during the events leading to the riot at the Capitol if they hope for any sort of conviction, but there is indeed a precedent and the possibility for a charge of incitement.
But the First Amendment has never been simple. In my own time studying and writing about Free Expression, I have found a striking hypocrisy with which we defend or deny freedom of speech in the United States. Scores of heavily armed Capitol police beat, maced, shot at, and arrested hundreds of peaceful Black Lives Matter protestors during 2020. Yet a suspiciously sparse Capitol police force failed to secure the country’s legislative center and stand up to white nationalists and seditionists. A sitting president used his political speech and influence to encourage a mob of armed protestors with a well-documented desire to pursue violence to further his political goals.
Not all Free Speech controversies are created equal in this country, because neither all speakers nor all speech are treated in the same manner. Free Speech is a vector through which the most striking divisions in our country are revealed and hopefully overcome; that is why it is so important. But this was not the average Free Speech controversy. This is a case where the degree of power behind the speech may equate to violence and insurrection, and it resulted in a catastrophic end to one of the most challenging presidencies in American history.