Legal scholars urge court to reject Trump’s ‘spurious’ free-speech defence in Capitol riot lawsuits

Four experts argue insurrection ‘may be the most spectacular example of incitement’ in modern US history

Alex Woodward
New York
Saturday 10 July 2021 17:12
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‘This is our house’: Trump supporters storm Capitol building

A group of Constitutional law scholars have urged courts to reject “spurious” legal arguments from Donald Trump and his allies in lawsuits alleging the former president incited the deadly riot at the US Capitol on 6 January.

The group of four legal experts – including leading First Amendment lawyer Floyd Abrams, who argued the Pentagon Papers case – filed a 23-page briefing supporting lawsuits from two Democratic lawmakers and US Capitol Police officers who have accused the former president of “directing” the assault in the halls of Congress to stop the certification of presidential election results.

Defendants – including Donald Trump Jr, Rudy Giuliani and US Rep Mo Brooks – have claimed that their speeches to a rally before the insurrection should be considered constitutionally protected “political” free speech.

In filings on 8 July, legal scholars said it is “important not only to reject plaintiffs’ spurious and thinly developed First Amendment defences, but to do so on grounds that preserve the effectiveness of political-intimidation statutes generally”.

They also argued that the court must recognise the imbalance between freedom of political speech and intimidation that leads to violence.

They wrote: “Granting constitutional protection to the statutorily proscribed acts of political intimidation in the guise of ‘speech’ would render the government incapable of carrying out its functions, including its core democratic function of protecting the ability of all eligible citizens to engage freely and without coercion in the democratic process, whether by voting or by supporting and advocating for candidates.”

Democratic lawmakers have accused Mr Trump and his allies of violating the Ku Klux Klan Act of 1871, which sought to combat violence against government agencies and Congress in the aftermath of the US Civil War amid white supremacist terror during a Reconstruction era undermined by the violent disenfranchisement of Black Americans.

“As the history of these statutes demonstrates, throughout much of our national existence it has been government policy to allow white-supremacist terrorism to prevail over the democratic rights of minorities, particularly in the South,” the scholars wrote in their brief.

“It took a bloody Civil War and a hard-fought Civil Rights movement to end that policy and to establish the government’s democracy-protecting function as a fundamental attribute of, and justification for, federal power,” they said. “The political-intimidation statutes were part and parcel of that revolution.”

The legal experts – including Berkeley School of Law’s Erwin Chemerinsky and Harvard University’s Martha Minow and Laurence Tribe – said they “harbor little doubt” that the law’s application to the events of 6 January falls within the “incitement and true-threats exceptions” of the First Amendment.

They also warned that while the insurrection “may be the most spectacular example of incitement and ‘true threat’” in modern political history, contemporary intimidation “often takes subtler forms that these statutes can address effectively – if they do not become neutered by a mistaken application of First Amendment principles”.

“A ruling that limited the political-intimidation statutes ... would sharply curtail the reach of these statutes at a time when voting, and the public officials who administer voting, are under relentless partisan attack – as the facts of January 6 attest,” they argued.

Speeches from Mr Trump and his allies were “integral to antidemocratic conduct that federal law has proscribed for 150 years,” they said.

Attorneys for Mr Swalwell wrote in a separate filing that the former president and his allies launched a “months-long campaign of lies and deceit that culminated in violence-laced calls to save a country they claimed was being stolen,” despite calls for violence among his supporters, including threats to kill his vice president, Mike Pence, and other lawmakers.

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