The First Amendment After Trump

Originally published in California Publisher, Winter 2021.

By Jason Shepard

Donald Trump’s presidency ended in January days after his supporters attacked the U.S. Capitol to stop Congress from certifying Joe Biden as his successor, resulting in Trump’s second impeachment and his permanent ban from Twitter and Facebook.

Trump’s legacy on First Amendment freedoms was the subject of my last column. The scope swept wide, but history will judge it incomplete after the Capitol riot on Jan. 6.

Get me rewrite!

On Nov. 3, 2020, Biden beat Trump by an electoral college vote of 306 to 232. By the national popular vote, Biden netted seven million more votes than Trump.

Yet, for months, Trump stoked false claims that voter fraud stole the election from him. His obsession with the “Big Lie” fueled a seditious protest in Washington on Jan. 6 that turned violent when thousands of supporters stormed the Capitol, vandalizing the building, assaulting police officers, and hunting for hostages, including the vice president. Five people died and more than 140 were injured.

The “Stop the Steal” conspiracy stands as the clearest example to date of how the spread of misinformation in the digital era can subvert American democracy and have deadly consequences.

Six weeks after the Capitol attack, at least 235 people face federal criminal charges, including for trespass, destruction of government property, conspiracy, and assaulting law enforcement officers.

At least 30 of those arrested are linked to extremist groups, including the Proud Boys, Oath Keepers, Three Percenters, Texas Freedom Force and QAnon, according to CBS News. Some media personalities are also under investigation, including right-wing talk show host Alex Jones and Trump adviser Roger Stone, according to the Washington Post.

“The scope and scale of this investigation in these cases are really unprecedented, not only in FBI history but probably DOJ history,” Acting U.S. Attorney Michael Sherwin said in a statement.

The events of Trump’s final months in office also raise several more questions of First Amendment law. Was Trump’s spread of the Big Lie an example of sedition and incitement? How should internet companies combat misinformation on their platforms that could cause an insurrection?

Trump’s lawyers said his speech and conduct surrounding the events fell “within the norms of political speech that is protected by the First Amendment.”

On the floor of the Senate, lead House impeachment manager Jamie Raskin argued otherwise.

“This case is much worse than someone who falsely shouts fire in a crowded theater. It’s more like a case where the town fire chief, who’s paid to put out fires, sends a mob not to yell fire in a crowded theater, but to actually set the theater on fire,” Raskin argued during the Senate trial.

The trial was brief, without witnesses. In the end, 57 Senates voted to convict, falling short of the 67 required.

Much like 9/11 brought attention to the dangers of extremist speech globally, as a result of Jan. 6, Trump’s legacy will include a searching for new boundaries of sedition and incitement in an era of rising domestic extremism.

Between 1919 and 1969, prosecutions for sedition in the U.S. targeted socialists, communists and other “radicals” for speech that challenged government authority.

The U.S. Supreme Court upheld many sedition convictions, but over time, expanded First Amendment protections for “abstract advocacy” unlikely to provoke people into illegal activity.

In Brandenburg v. Ohio, the Supreme Court in 1969 issued a three-part “incitement” test, in a case that overturned the conviction of a Ku Klux Klan leader who gave a fiery speech calling for “revengeance.”

Under the incitement exception to First Amendment protections, speech advocating violence or sedition can be punished only when speech is directed to inciting imminent lawless action and is likely to produce such action.

Even under the speech-protective Brandenburg test, Trump’s conduct and the events on Jan. 6 seems to meet the “textbook definition” of incitement.

When I teach the incitement test to my Communications Law students, I pretend to be a raving professor extolling my students to rise up in revolution to attack the university president’s house in opposition to tuition increases. I stole the idea from my former colleague Genelle Belmas.

In my performance, if I’m erudite and talk in generalities about protesting with violence, the First Amendment protects me. If I stoke passions through lies and hyperbole, even that is protected without more to meet the likelihood and imminence prongs. No one would literally take to violent activity just by listening to a mad professor. Students get the idea that even though generalized advocacy is protected by the First Amendment, there’s a line that’s very far down the road for unprotected incitement.

In my wildest intimations, my imagination failed itself at what we actually experienced from President Trump leading up to and on Jan. 6.

An overwhelming number of First Amendment scholars agree.

“If anything is incitement, it’s what President Trump and Rudy Giuliani did” on Jan. 6, Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, said at a virtual forum sponsored by the First Amendment Coalition on Jan. 14.

On the eve of the impeachment trial, a group of 144 constitutional lawyers signed a public letter denouncing Trump’s First Amendment defense and concluding that Trump’s speech and conduct constitute unprotected incitement.

Others aren’t so sure what would happen in a criminal prosecution or civil lawsuit.

“A criminal incitement prosecution is very difficult under these circumstances,” Lyrissa Lidsky, dean of the law school at the University of Missouri, said a virtual panel discussion sponsored by the Floyd Abrams Institute for Freedom of Expression at Yale Law School.

Trump’s habit of saying extreme things and then pulling back or adding disclaimers would be evidence in his defense, Lidsky said. So too might be his assertion that he genuinely believed his lies.

In addition to renewed attention to sedition and incitement under the law, the events of Jan. 6 will also serve as a reckoning for social media companies, many of which are caught between pressures to support robust free speech principles while also limiting the harms of speech on their platforms.

While Twitter and Facebook had started labeling some of Trump’s posts as false or misleading after the November election, Trump’s permanent “deplatforming” after Jan. 6 raised the stakes for social media companies.

Trump’s ban draws more attention to the ways in which the law does, and does not, regulate speech on social media, including under a federal law known as “Section 230” of the Communications Decency Act, which provides broad legal immunity for liability for content posted by others.

Following the Capitol attack, Facebook, in particular, came under fire to examine how its algorithms and design encouraged the spread of posts containing misinformation and extremist views.

“Trump’s statements on and off social media in the days leading up to January 6th were certainly inflammatory and dangerous, but part of what made them so dangerous is that, for months before that day, many Americans had been exposed to staggering amounts of sensational misinformation about the election on Facebook’s platform, shunted into echo chambers by Facebook’s algorithms, and insulated from counter-speech by Facebook’s architecture,” the Knight First Amendment Institute at Columbia University wrote to a newly created Facebook Oversight Board.

While Chemerinsky supports social media companies taking down specific posts or adding fact-check labels for posts that violate viewpoint-neutral policies, he’s bothered by permanent bans.

“I worry that if we encourage Twitter to censor Donald Trump today, tomorrow it might be my speech or your speech that gets censored,” Chemerinsky said.

Rick Hasen, law professor at University of California, Irvine, sees things differently.

In a letter to Facebook, he said Trump’s actions warranted a ban. Hasen said a strong presumption supporting political speech should be overcome only when speech shows a serious and imminent danger of undermining democratic governance, and Trump’s actions met that threshold.

“There will be close calls under a policy that allows the deplatforming of political leaders in extreme circumstances. This was not one of them,” Hasen wrote.

Jason M. Shepard, Ph.D., is chair of the Department of Communications at CSU Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at jshepard@fullerton.edu or Twitter at @jasonmshepard.

Media law prof and COMM dept chair @CSUF. Into: #FirstAmendment #journalism #socialmedia #politics. Past: @CapTimes @isthmus @TeachForAmerica @UWMadison PhD.

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