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Don’t Let Trump’s Second Trial Change the First Amendment

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That the law as it stands probably would not recognize the president’s remarks as incitement does not necessarily mean that it should not do so. Mr. Trump’s claim earlier this week that his remarks outside the White House were “totally appropriate” is preposterous: He deceived his supporters, disgraced his office and ordered the subversion of democracy. The rise of social media, the heated rhetoric of the Trump era, and recent spikes in hateful speech and hate crimes have raised important questions about whether decades-old First Amendment precedents can adequately arbitrate hazardous speech in an age of digital media and demagoguery. It is reasonable to ask whether a more expansive definition of incitement ought to be considered; for example, if Mr. Trump was found to have been aware of plans for an attack when he spoke, that could color the interpretation of his words. It is also fair to ask whether the authority wielded by those in high positions should inform the incitement test, recognizing, for example, that the legitimization of extreme tactics by a sitting president is far more damaging to democracy than similar claims by an ordinary citizen. Scholars have debated these issues in law review articles, and new ideas may soon work their way into the law.

But as they hastily grapple with Mr. Trump’s unprecedented pillage of constitutional norms, Congress should take care not to inadvertently lower the First Amendment guardrails for speech more generally. In debating the charges against Mr. Trump at his trial, members of Congress and those commenting on the issues should make clear that their vernacular references to incitement are distinct from how the term is used in its strictly legal sense.

Progressives have a strong stake in keeping the First Amendment carve-out for incitement fairly narrow. Historically, this exacting standard has protected not just right-wing activists like Brandenburg, but also dissenters on the left, including socialists, antiwar protesters, flag-burners and civil rights advocates. In the 1982 case of NAACP v. Claiborne Hardware, for example, the Supreme Court found that a civil-rights leader’s threat to break the “damn neck” of anyone flouting a boycott of white stores was not incitement, even though acts of violence against boycott violators were later committed. The court found no evidence that the organizer ever “authorized, ratified, or directly threatened” violence, and rejected claims that he had a “duty to repudiate” the violence that followed. The leeway the Claiborne court acknowledged for an advocate to “stimulate his audience with spontaneous and emotional appeals” is essential to the work of movement organizing.

Despite Claiborne, conservatives still try to use the doctrine of incitement to deter or punish agitation for social change. In 2016 a police officer sued the Black Lives Matter activist DeRay Mckesson after a rally that Mr. Mckesson organized erupted into violence and the officer was injured — even though there was no evidence or even suggestion that Mr. Mckesson had expressly sanctioned the mayhem. Still, it took an appeal to the Supreme Court to reject lower court rulings that would have held Mr. Mckesson liable for coordinating the protest, gutting the Brandenburg test. (Rather than tossing the case entirely, the court sent it back to Louisiana for further proceedings, meaning that Mr. Mckesson’s legal predicament persists.)

Last year, the South Dakota Legislature, targeting anti-pipeline protests, passed a new law creating a crime of “incitement to riot” that defined riots as acts of violence that can include as few as three people. If the stringent legal test for incitement were watered down in order to punish Mr. Trump, the result could be heightened legal exposure for countless others who deserve protection for their speech and assembly rights. Moreover, the strict standard in the United States for incitement has been influential globally and is referenced in a seminal 2011 U.N. human rights resolution that addresses how religious intolerance can be combated without trampling free expression. Any proposals to ease the U.S. legal standard should take into account the risk of legitimizing authoritarian leaders around the world who use spurious charges of incitement to quash their political opposition.

That the legal doctrine of incitement to imminent violence should not be expediently molded to meet the moment does not mean that Mr. Trump should go unpunished. The framers of the Constitution delineated the parameters of impeachment broadly, knowing they could not foresee every scenario in which it might be warranted. Scholars generally agree that the grounds for impeachment are not limited to committing legally prosecutable crimes; there is a reason the power to impeach was granted to the legislative (and therefore political) branch rather than the judicial (and therefore legal) branch. There is a very strong case that Mr. Trump’s efforts to thwart the Constitution, subvert the election results, encourage insurrection and intimidate officials into obstructing the democratic process meet the impeachment standard.

It is important, as we move toward an exigent impeachment trial, that we avoid conflating what is impeachable with what is illegal. It is up to Congress to decide whether Mr. Trump’s behavior violated his oath to preserve, protect and defend the Constitution. It is up to courts to decide when incendiary language meets the legal standard of incitement, consistent with the First Amendment. In performing its constitutional role in impeachment, Congress should take special care not to alter the constitutional standard for incitement.

Suzanne Nossel (@suzannenossel) is the chief executive of Pen America and the author of “Dare to Speak: Defending Free Speech for All.”

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