Among the arguments against barring Donald Trump from running for president again is that it would violate his First Amendment rights. But top scholars of that amendment explain that its free speech protections and the 14th Amendment’s insurrectionist ban “work together in harmony to protect democracy.”
A new amicus brief joined filings from historians, conservatives and others bolstering the legal case for upholding the Colorado Supreme Court’s ruling against Trump last month. He can file a final reply brief by Monday ahead of the historic Feb. 8 oral argument in Washington. The justices’ forthcoming ruling could settle Trump’s eligibility nationwide as cases proceed across the country ahead of the November election.
The constitutional scholars recall that, under the Supreme Court’s 1969 decision in Brandenburg v. Ohio, the First Amendment doesn’t protect speech that’s both “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action.” That precedent and the disqualification clause in Section 3 of the 14th Amendment “are easily harmonized,” the experts write to the justices, “because both require a searching review of the full context surrounding Trump’s Jan. 6 speech.”
They add that Trump’s course of conduct and speech also lack First Amendment protection under the “integral-speech” and “true-threat” exceptions. On the issue of threats, they wrote:
Trump’s violent, incendiary speech calling on others to violate the law is not the kind of speech afforded First Amendment protection. Nothing in the First Amendment should inhibit this Court from carrying out its constitutional duty to disqualify Trump from appearing on Colorado’s 2024 Republican presidential-primary ballot.
Like the amicus brief from conservative former federal Judge J. Michael Luttig and others, warning the justices against creating an “off-ramp” to avoid deciding Trump’s eligibility, this First Amendment brief is the latest filing showing that the former president doesn’t have a good legal argument for holding office again — and that the justices have their work cut out for them if they’re intent on ruling otherwise. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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