Trump Claims “Freedom of Speech” – the Law Says Otherwise

Donald Trump claims he is not responsible for inciting the January 6 insurrection on the Capitol by his followers. For weeks, Trump had made baseless claims that he won the 2020 election, and that the presidency was being “stolen” from him. In truth, he lost the election by over 7 million votes.

Over those weeks between the election and the January 6 Trump coup attempt, Trump urged followers from domestic terrorist organizations like the Proud Boys and the Oath Takers to descend on the Capitol on January 6 to “stop the steal.” On the day of the coup, Trump, Rudy Giuliani, and Donald Trump Jr. gave fiery speeches reiterating the Big Lie that Trump had won the election. They urged the crowd to go to the capital and “fight”.

As a direct result of Trump’s Big Lie that he won the election, his followers staged an insurrection – violently attacking the police and breaking into the Capitol on a mission to kill Vice President Mike Pence and Speaker of the House Nancy Pelosi and stop the lawful counting of ballets to formally award the presidency to election winner Joe Biden. People died including police. In fact, over 140 police were injured or worse.

Trump claims that under the law, he has the freedom of speech to say whatever he wants.

The problem with that belief is that in 1919 in the case Schenck v. United States, the United States Supreme Court ruled that speech that is dangerous and false is not protected. It was Chief Justice Oliver Wendell Holmes Jr. who wrote that such things as “falsely shouting fire in a theatre and causing a panic” are not protected. In 1969, Brandenburg v. Ohio refined the scope of the banned speech to that which is likely to incite imminent lawless action.

Every time Donald Trump tells people that Joe Biden won the 2020 presidential election due to voter fraud, he is lying. Over 60 lawsuits by Donald Trump were thrown out because there is no evidence of voter fraud. His own Attorney General said there was no fraud and Trump lost the election. He has failed to provide on single shred of evidence to support his claims. He is lying. It’s what Donald Trump does.

You can’t yell fire in a crowded movie theater and expect to rely on a freedom of speech defense when people are injured or even killed.  Donald Trump’s freedom of speech does not permit him to tell people there was election fraud that multiple recounts have proven didn’t occur and then encourage them to stage a coup. When the speech is dangerous and false and likely to incite imminent lawless action, it is not protected under free speech.

Trump’s next defense is that he President of the United States when he made those incendiary speeches to encourage his followers to attack the Capitol and the President has blanket immunity to do anything he wants. The problem with this argument is that if he was acting as President of the United States then his comments were still not only false, but he was also committing treason by violating his oath to uphold the Constitution.

The fact is that Donald Trump, Rudy Giuliani, and Donald Trump Jr. are directly responsible for the January 6th insurrection. They deserve to be punished under the law.

Republicans have given up their chance for a bipartisan investigation into the January 6th insurrection. They have no basis to argue the findings when a partisan investigation finds these three loathsome creatures guilty.

Peace. Love. Trust.

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