When Donald Trump’s second impeachment trial opens this week, the prosecution and defense will spend much time debating whether it is unconstitutional to try a President no longer in office —a dodge Republicans have seized upon to avoid taking responsibility for Trump’s actions on January 6th and to avoid his wrath. With conviction now unlikely, the trial offers Democratic senators and the handful of open Trump skeptics among the Republicans a chance to engrave Trump’s assault on the Constitution into the historical record. But the trial will also be a forward-looking political forum—a preview of how January 6th will figure in electoral competition between Democrats and Republicans, and among Republicans, in the months ahead.
Trump’s lawyers and acolytes have already made plain some of the political ground they prefer to fight on: the defense of the First Amendment. Impeaching Trump for mobilizing the January protesters with false claims about election rigging “is a very, very dangerous road to take with respect to the First Amendment, putting at risk any passionate political speaker,” one of Trump’s impeachment lawyers, David Schoen, told Sean Hannity on Fox News last week. The initial fourteen-page brief that Schoen and his co-counsel Bruce Castor filed in Trump’s defense mentions the First Amendment five times, aligning its arguments with the “cancel culture” protestations so prominent in conservative discourse: “If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all.”
As a defense against the House’s impeachment charge, however, the legal protections afforded by the First Amendment are largely irrelevant. The Constitution has designed impeachment as a political process, not a judicial one; what the House charges and what the Senate decides cannot be appealed to federal courts, for example, and the antiquated standard of “high crimes and misdemeanors” has been left to dangle for more than two centuries without clear definition. In criminal law, Trump’s incendiary speech on January 6th, at the rally that preceded the assault on the Capitol, raises the question of whether his words are prohibited by the very narrow “incitement” exception under the First Amendment; free-speech scholars disagree about whether he crossed the legal line. But, at the impeachment trial, it doesn’t—or shouldn’t—matter, since “the First Amendment does not shrink the scope of the impeachment power or alter what conduct” warrants a Senate conviction, as the House impeachment managers wrote in their trial memorandum, quoting Keith E. Whittington, a Princeton politics scholar.
There is no doubt that Trump’s abuse of office—his lies about election fraud, his strong-arming of state election officials including Georgia’s Secretary of State Brad Raffensperger, his advocacy for unconstitutional interventions in the Electoral College, and, finally, his incitement of protesters to march on the Capitol—warrant impeachment and conviction. The House prosecution brief prominently quotes Republican Representative Liz Cheney’s emphatic judgment: “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”
Yet, when addressing Trump’s prospective First Amendment defense, the prosecutors become more lawyerly and less persuasive. The House brief argues that “rights of speech and political participation mean little if the President can provoke lawless action if he loses at the polls.” It goes on to say that, because Trump attempted to subvert the Constitution by trying to overturn an election, he carried out a “direct assault” on First Amendment rights, and so his conviction by the Senate would “vindicate First Amendment freedoms.” This is a stretch; in any event, it would seem better and more consistent with liberal tradition to couple condemnation of Trump’s incitement on January 6th with a confident argument to preserve robust free speech in the public square—as an antidote to Trumpism, among other things.
The brief’s weakness on the First Amendment issue signals a loss of clarity among Democrats and liberals about the unqualified defense of free speech. Partly, this is because the serious emergency that Trump created after losing in November is proving difficult to enclose. Will Trump really be banned from all major social-media platforms forever? On what ground, and on whose authority? What will be the consequences of corporate deplatforming policies for civil-rights activists on the left—or for quirky, offensive speakers on the culture’s fringes?
There can be little doubt that policies which suppress Trumpian voices will eventually be used to suppress other voices. Even before the 2020 election, DeRay Mckesson, a Black Lives Matter activist who helped organize protests against the police killing of Alton Sterling, in Louisiana, had been taken to court by a police officer who claimed that he was responsible for injuries the officer allegedly sustained in a rock-throwing incident, even though Mckesson had not been involved in any violence himself. (The Supreme Court returned the case to local courts, without ruling on the First Amendment issues.) It is not hard to imagine how red-state and Trump-aligned prosecutors may use the fallout from January 6th to go after civil-rights campaigners whose protests organized on social media turn violent, even if the violence is carried out by saboteurs or by fringe extremists.
President Biden and Democrats in Congress are preparing an aggressive regulatory and antitrust agenda aimed at social-media and other tech companies, recognizing the democratic distortions created by their power. But the record of Democrats in this arena is poor. Over a decade or more, their light touch on antitrust and public-interest regulation enabled the growth of the social-media giants that now dominate our public square. Until now, Democrats have effectively lashed themselves to the corporate-free-speech policies of publicly traded corporations that face pressure to maximize shareholder value—and not necessarily the public interest. The voluntary actions taken by Facebook, Twitter, Google, Amazon, and other companies against Trump and his insurrectionist allies this winter did help contain a constitutional crisis. But the evolution of these corporate policies into a next-generation, privatized free-speech regime that will shape elections in 2022 and 2024 should make every citizen queasy, given what we have seen on the largest platforms since 2016.
Twitter has announced a “permanent” ban on Trump’s world-bending @realDonaldTrump account, on the ground that allowing Trump to tweet risked inciting further violence, which runs afoul of Twitter’s 2019 “World Leaders” policies, whose very existence signals the nature of the platform’s ambition and influence. Facebook, for its part, seeks to evolve its emergency interventions into sustainable corporate policies and has turned to its nascent Oversight Board for assistance. The board was created last year “to promote free expression by making principled, independent decisions regarding content on Facebook and Instagram and by issuing recommendations on the relevant Facebook company content policy.” Last month, Facebook asked the board to decide whether to reinstate Trump’s access to the platform. “This decision has great consequences for similar situations that may arise in the future elsewhere,” Nick Clegg, Facebook’s vice-president for global affairs and communications, told National Public Radio.
The Oversight Board is made up of twenty scholars, activists, and journalists from more than a dozen countries, and includes such respected figures as Alan Rusbridger, the former editor of the Guardian, who bravely published Edward Snowden’s revelations, under intense pressure from the British government not to do so. Yet the membership list can read like a parody of the conspiracist black-helicopter crowd’s anxieties about unaccountable global governance. Whatever the board decides about Trump, its own legitimacy may attract as much scrutiny as its recommendations do.
Facebook and Twitter have long sought to occupy a position of neutral permissiveness toward speech, inspired by First Amendment principles. Yet their business models have also led them to surveillance and data-mining practices that are incongruent with civil liberties. Last week, Charlie Warzel and Stuart A. Thompson of the Times reported on a data set that they obtained from sources that tracks the movements of some hundred and thirty individuals who were inside the Capitol on January 6th. It isn’t clear who collected this “surreptitious” information, as Warzel and Thompson called it. Phone and social-media companies are among those that could have had access. (The data showed where smartphones and so, potentially, their owners, were, inside the building.) Warzel and Thompson called the data set “a demonstration of the looming threat to our liberties posed by a surveillance economy that monetizes the movements of the righteous and the wicked alike.”
Trump will be tried this week for his “incitement of insurrection against the Republic he swore to protect,” as the House trial memorandum begins. In periods of national division and anxiety, such as this one, as the First Amendment scholar Geoffrey R. Stone narrates in his essential book “Perilous Times,” Americans have repeatedly overreacted and suppressed dissent in ways that, in hindsight, seem hysterical or malign. There is certainly no reason to shrink from Trump’s impeachment or conviction on free-speech grounds, as the board of the American Civil Liberties Union has persuasively argued. After the trial, however, a path to politics and public policy that neither enables Trumpian assaults on voting and the Constitution nor undermines the radical American experiment in free speech will be very hard to find. It is necessary nonetheless.
