Skip to main content
You have permission to edit this article.
Noah Feldman: Lawsuit a rare test of free speech

Noah Feldman: Lawsuit a rare test of free speech

  • 0
Noah Feldman

Former President Donald Trump’s lawyers defended him during his second impeachment trial in part by arguing that his Jan. 6 speech was protected by the First Amendment. That defense was legally irrelevant to the high crimes and misdemeanors charge, and wasn’t settled by his acquittal.

But Trump’s free speech defense may now get its day in court. Rep. Bennie Thompson, D-Miss., has filed a civil lawsuit against Trump, Rudy Giuliani, the Oath Keepers and the Proud Boys for unlawfully conspiring to interfere with Congress in the Capitol attack in violation of the Ku Klux Klan Act of 1871. And while the First Amendment doesn’t apply to impeachable offenses, it does apply in cases of civil liability.

Trump’s best argument to get the case dismissed would be that he can’t held liable for conspiring with those who attacked the Capitol if all he did was express his First Amendment-protected political views. To decide that, a federal court would have to determine whether Trump’s speech was protected under the standard set by Brandenburg v. Ohio, the controlling precedent in incitement cases.

The statute that forms the basis of Thompson’s lawsuit establishes liability when two or more persons conspire “by force, intimidation, or threat” to prevent any officer of the U.S. from the “lawful discharge of the duties of his office.” On its face, the law covers the Jan. 6 attacks. There is no doubt that the rioters forcefully interfered with Congress’ discharge of its duties, and that Thompson was one of the people who was affected.

To win the lawsuit, Thompson would have to prove that Trump and Giuliani conspired with those who attacked the Capitol. It would not be sufficient simply to show that the attackers were inspired by Trump’s speech or by Giuliani’s repeated assertions that the election was stolen. A conspiracy requires agreement to commit an illegal act and intent to get it done.

Trump’s simplest defense strategy would be to claim that the words he spoke on and before Jan. 6 were protected by the First Amendment. Just like the government can’t put you in prison for protected speech, the government can’t hold you civilly liable for constitutionally protected speech. Being required to pay damages would violate your free expression rights.

The Brandenburg standard says that speech can only be penalized if it is directed towards inciting imminent lawless action and is actually likely to produce that lawless action. The second part of the test should be easy to satisfy in Trump’s case, because the Jan. 6 attacks actually did occur right after Trump spoke. The hard part would be to show that Trump’s words were “directed” to incitement, a standard that likely requires proof of Trump’s intent to incite, or proof that his words were literally directed to inciting violence — or both.

Based on the evidence we’ve seen so far, Thompson’s complaint may not be able to meet that standard. Even if Thompson could convince a jury that Trump and Giuliani conspired with the attackers, Thompson can’t win unless a judge first determines that Trump’s conduct violated Brandenburg. For that reason, Trump would be likely to raise his First Amendment defense right away, asking the judge to throw out the case before it ever got to trial.

The fact is, it’s hard to prove incitement under the Brandenburg standard. That’s why criminal prosecutors so rarely attempt it. Instead, when prosecutors want to convict someone for speech connected to violence, they tend to bring charges under statutes like the one that criminalizes material support for terrorism.

In the future, if dissatisfaction with the Brandenburg standard grows, it’s possible that conspiracy may become a route to punishing forms of speech that, like Trump’s, skirted the very edge of incitement without crossing the constitutional line.

Noah Feldman is a Bloomberg Opinion columnist.

Noah Feldman is a Bloomberg Opinion columnist.


Catch the latest in Opinion

* I understand and agree that registration on or use of this site constitutes agreement to its user agreement and privacy policy.

Related to this story

Most Popular

While watching period dramas, I like to relate the era to my own family to understand the historical timeframe. My grandmother would’ve been 12 at the beginning of Downton Abbey and my father five at the end of it, two years before my mother was born. The characters of Downton were introduced to electricity, motorcars and telephones. The series made note of how the young accepted change with calmness, whereas the older generations were suspicious of the new inventions.

Rep. Curtis Tarver, D-Chicago, has introduced House Bill 1727 in Springfield. His bill would abolish qualified immunity for police officers, and immunity for the governmental bodies that employ them, if the officers deprive any person of "rights" guaranteed in the Illinois Constitution, or fail to intervene to prevent the deprivation.

If you expected the administration of President Joe Biden to be a return to normalcy on trade issues after the drama of Trump-era tariff battles and tweet diplomacy, Treasury Secretary Janet Yellen has other ideas.

Outrage over the new Georgia law is warranted. It's an overt suppression scheme — aimed at Black voters, specifically, and overall turnout, generally. But before we give much more oxygen to the measure's red herring, criminalizing distribution of food and water to people in long lines at the polls, let's highlight its dangerous core: allowing elected officials to manipulate election outcomes.

Family Resources provides free and confidential comprehensive services to survivors of domestic violence, sexual assault, labor and sex trafficking, homicide and other violent crimes in Clinton, Jackson, Scott, Muscatine, Louisa and Cedar counties in Iowa and Henry, Mercer and Rock Island counties in Illinois.

Get up-to-the-minute news sent straight to your device.


News Alerts

Breaking News