Friday, January 08, 2021

Trump, Incitement, and Free Speech

Andrew Koppelman

 Josh Blackman and Seth Tillman argue at the Volokh Conspiracy blog that, even if Trump culpably incited the cop-killing riot in the Capitol building, he cannot be impeached for it, because his speech is protected by the First Amendment.  They cite the extremely protective standard of Brandenburg v. Ohio, which limits criminal punishment for incitement. 

But they neglect to mention the more pertinent area of free speech law, which concerns the disciplining of public employees because of their speech.  Under that doctrine, there is no protection for speech made in the course of an employee’s duties, and even speech off the job, about matters of public concern, can be punished if the orderly operation of government outweighs it.

The pertinent Supreme Court decisions are Garcetti v. Ceballos, Connick v. Meyers, and Pickering v. Board of Education, all routinely covered in introductory First Amendment cases.

There is some doubt whether Trump’s reckless speech to the angry crowd was within the scope of his duties.  If it was not, it receives a higher level of protection.  The question then would be, in a case where he was discharged from his employment (which is of course what impeachment amounts to), whether the speech impaired the government’s interest in administrative efficiency, to a degree that outweighs the speaker’s free speech rights.

Whether Trump’s incitement of the crowd, and the consequent death, destruction, and interruption of the business of Congress impaired the government’s interest in administrative efficiency, is a question I leave as an exercise for the reader.


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