Prosecuting Trump Runs Into Some Serious 1st Amendment Troubles

But they are surmountable if the government takes into account his other actions on January 6, 2021.

Alan Rozenshtein and I published a new essay in the Atlantic here.

Here’s our lede: “We believe that the government can prosecute Trump for his speech, but it must proceed very carefully to avoid risking the criminalization of legitimate political expression. The way to do this is for the evidentiary bar to be set appropriately high: Specifically, in cases where a speaker plausibly but ambiguously advocates lawlessness, the government should be required to show that the defendant took additional “overt acts,” beyond making the speech itself, that furthered violence. (We explain this balanced approach for prosecuting political speech—whether for incitement, obstruction, fraud, or insurrection—in greater detail in a forthcoming law-journal article.)”

Our main argument: “When it comes to legal liability for political speech, ties go to the runner—meaning the First Amendment should prevail in close calls, especially in criminal trials. The Brandenburg test is an example of what are called “prophylactic” rules in constitutional law: rules that add a high standard in order to reduce the risk of violating constitutional rights. In particular, there is a serious risk of hindsight bias in any attempt to decide whether a certain speech caused, or would have caused, violence or lawlessness. And when legal rules set a bar too low and with too much subjectivity, they risk opening a door to future prosecutions tainted by partisan bias.

But this is not a tie, because a prosecution need not, and should not, rest solely on Trump’s speech. The January 6 Committee already did much of the work last summer, producing testimony from Cassidy Hutchinson and others showing that Trump took additional concrete acts that he knew would increase the risk of violence.”

See our forthcoming article here:

“January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution,”
37 Constitutional Commentary (forthcoming 2023)


Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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