Impeachment, Incitement, and the First Amendment

We the People

National Constitution Center

News, News Commentary, History

4.6 • 1.1K Ratings

🗓️ 11 February 2021

⏱️ 49 minutes

🔗️ Recording | iTunes | RSS

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Summary

Did President Trump’s January 6 speech prior to the attack on the Capitol constitute the crime of incitement? Is it necessary to demonstrate that it did in order for the Senate to find him guilty of incitement as a high crime and misdemeanor under the Impeachment Clause and convict him? What are the relevant legal and constitutional standards? Catherine Ross, George Washington University Law School professor and author of the forthcoming book A Right to Lie? Presidents, Other Liars, and the First Amendment, and Josh Blackman, professor of law at South Texas College of Law in Houston whose work has been cited by President Trump’s defense team during this second impeachment trial, join host Jeffrey Rosen to debate those questions. Some terms that will be helpful to know this week: “The Brandenburg test”: In Brandenburg v. Ohio (1969), the Supreme Court established that speech could be punished in a criminal trial only when the speech is: “directed to inciting or producing imminent lawless action” AND “likely to incite or produce such action” Impeachment: per Article II, Section 4 of the Constitution, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments about the show? Email us at podcast@constitutioncenter.org.

Transcript

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0:00.0	I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome
0:07.8	to We The People, a weekly show of constitutional debate.
0:11.8	The National Constitution Center is a nonpartisan nonprofit chartered by Congress
0:16.7	to increase awareness and understanding of the Constitution among the American people.
0:23.0	This week the Senate began the second historic impeachment trial of former President Donald Trump.
0:30.0	Today we will debate the merits of the impeachment charges should former
0:36.5	President Trump be convicted of the high crime and misdemeanor of incitement to insurrection.
0:44.8	To debate that question, I'm joined by two of America's most thoughtful scholars on the First
0:49.8	Amendment issues raised by the charges of incitement of insurrection and two of America's
0:55.8	leading constitutional commentators.
0:58.3	Catherine Ross is Fred C. Stevenson, research professor at the George Washington University Law School.
1:04.8	She's the author of many books, including the forthcoming Right to Lie, Presidents, Other Liars,
1:12.0	and The First Amendment.
1:13.7	Catherine, thank you so much for joining.
1:16.4	Thank you for having me, Jeff.
1:18.4	And Josh Blackman is professor of law at South Texas College of Law in Houston.
1:23.0	He's the author of three books, including an introduction to constitutional law,
1:28.0	101 Supreme Court cases, everyone should know.
1:32.0	He blogs at Josh Blackman.com and reason.com.
1:36.2	Josh it is wonderful to have you back on the show. Thanks Jeff.
1:40.0	Catherine let's begin with a legal question.
1:45.0	If President Trump were to be charged in a criminal trial of incitement to insurrection, would his conduct meet the standard articulated in the Brandenburg case,
	...

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