The House impeachment brief endangers freedom of speech
The brief filed by the House managers advocating for the conviction and disqualification of citizen Donald Trump contains an attack on freedom of speech for all Americans. It declares that “the First Amendment does not apply at all to impeachment proceedings,” despite the express language of the First Amendment that prohibits Congress from making any law, or presumably taking other action, that curbs freedom of speech.
The brief is based on a flawed reading of history and the role of freedom of speech in governance. Its section on freedom of speech begins with a sentence which reveals its fundamental error as it claims that the “First Amendment exists to promote our democratic system.” This idea surely would have surprised the framers of the First Amendment, who believed in freedom of speech but not so much in democracy. The framers of our constitutional system thought they were building a republic with limited suffrage and many checks on democracy in the United States.
The Electoral College, as it was conceived by the framers, was anything but democratic. State legislatures could select the electors without even allowing eligible voters to participate in the process. Just a small fraction of citizens and residents, male white landowners, were eligible to vote, and even they were subject to varying standards. The Senate back then was selected by state legislatures instead of democratic voting.
Benjamin Franklin once said, “It is a republic if you can keep it.” Freedom of speech was essential to keeping this a republic, but not necessarily a democracy. Over the years, we have evolved into a democracy, with near universal suffrage, direct election of senators, and voting for presidential electors, but we would still have the protections of the First Amendment even if we had not adopted these attributes of democracy. So the First Amendment does not exist only to “protect our democratic system.” It exists to protect our liberty, regardless of the system we select.
If Americans were to vote to restore the British monarchy, as some Tories advocated both before and after the revolution, the First Amendment still would grant us the right to dissent. The First Amendment is not merely a means to securing any one form of government. The freedom of speech it protects is an end unto itself under any system of governance.
Why is this historic point so important now? Because the argument made by the House impeachment managers that the First Amendment does not apply to presidents or others who “attack our democracy” was precisely the argument made by Joseph McCarthy and his followers in the 1950s, when they tried to deny First Amendment protection to communists and others who were viewed as enemies of democracy and who, if they had come to power, would have denied the rest of us our freedom.
Those of us who had fought against McCarthyism understood, apparently better than the House managers, that freedom of speech needs to include those who would replace democracy with other systems of governance. It must even include those who advocate severe restrictions on freedom of speech, as many left wing radicals do today. They should also be allowed to voice their dangerous views if democracy is to be preserved.
The House brief goes on to argue that even if the First Amendment were deemed applicable to impeachment, “a First Amendment defense would still fail,” because the speech Trump made to supporters “plainly satisfies” the Brandenburg principle. That is wrong as a matter of constitutional law. The speech was within the protection of Brandenburg. Trump called for a peaceful and patriotic protest. He advocated instead of incited. There is a clear difference. An incitement is a directive to act lawlessly. The speech was made a mile from the Capitol and, while he used strong words, they are like other calls to action protected by the First Amendment.
Hundreds of speakers, some of whom I and the American Civil Liberties Union have represented, have made similar remarks within constitutional protections. Even the American Civil Liberties Union, which supports the second impeachment of Trump, has acknowledged that his speech fell in the protections of Brandenburg. The brief filed by the House managers does not mention that opposition to their misguided argument.
Perhaps the most fundamental flaw in the brief is regarding impeachment as “an employment action against a public official.” They offer the absurd analogy that “just as a president may legitimately demand the resignation of a cabinet secretary who publicly disagrees with him” on policy matters, then the “elected representatives may disqualify him from federal office when they recognize that his public statements constitute a violation of his oath of office and a high crime against the constitutional order.”
However, any analogy between a president firing a cabinet secretary and Congress removing and disqualifying a president flies in the face of the Constitution. Indeed, the framers had rejected the British parliamentary system in which “elected representatives” may remove a prime minister by a simple majority vote of no confidence. Instead, they imposed strict criteria in removing and disqualifying a president which needs evidence of such treason, bribery, or other high crimes and misdemeanors.
Impeachment is not, as the House managers claim, “fundamentally an employment action.” It is an interference with democracy that can result in a small number of elected officials removing an elected president and denying the public the right to vote for him in a future election. To fail to understand this difference is to fail to understand the Constitution.
Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is author of the recent book “Cancel Culture: The Latest Attack on Free Speech and Due Process” and his podcast “The Dershow” is also now available on Spotify and YouTube. You can find him on Twitter @AlanDersh.