Yesterday the House January 6 Committee unanimously voted to recommend that former President Donald Trump be criminally prosecuted, for charges including conspiracy to defraud the United States, obstructing an act of Congress, and, the most serious, insurrection. A congressional criminal referral of a former president is unprecedented, and if Special Counsel Jack Smith and the Department of Justice decide to prosecute Trump, they will have to address a formidable defense: that Trump’s speech on January 6, 2021, no matter how irresponsible or how full of lies about a “stolen” 2020 election, was, after all, a political speech and thus protected by the First Amendment.
Prominent legal scholars—and one lower-court judge—have rejected that argument, countering that Trump’s speech, in which he urged his supporters to march to the Capitol and “fight like hell,” was sufficiently inflammatory to permit criminal prosecution. But this is too sweeping, and gives insufficient weight to the First Amendment concerns that prosecuting Trump for his actions that day would raise.
We believe that the government can prosecute Trump for his speech, but it must proceed very carefully to avoid risking the criminalization of legitimate political expression. The way to do this is for the evidentiary bar to be set appropriately high: Specifically, in cases where a speaker plausibly but ambiguously advocates lawlessness, the government should be required to show that the defendant took additional “overt acts,” beyond making the speech itself, that furthered violence. (We explain this balanced approach for prosecuting political speech—whether for incitement, obstruction, fraud, or insurrection—in greater detail in a forthcoming law-journal article.)
For more than half a century, the Supreme Court has sharply limited when speech can be criminalized. In the 1969 criminal case Brandenburg v. Ohio, the Supreme Court declared what is now the canonical two-part test for punishing inciting speech: First, the speech must be intended to “incit[e] or produc[e] imminent lawless action,” and second, the speech must be “likely to incite or produce such action.” This test is meant to be highly protective of speech; for example, in a later civil case, the Supreme Court held that a boycott organizer’s threat to “break [the] damn neck” of boycott evaders was protected because, as the Court later explained, this speech was insufficiently tied to a specific act and instead “amounted to nothing more than advocacy of illegal action at some indefinite future time.”
Trump would have a strong argument that his speech does not pass the stringent Brandenburg test. First, he could argue that he never explicitly called for violence, and that his exhortations to the crowd to “fight” (a word he used nearly two dozen times in the speech) were merely metaphorical. Second, he could point to language in the speech that urged the crowd to march “peacefully and patriotically” as evidence that his speech explicitly rejected violence and could not reasonably be understood as endorsing lawlessness. Another appellate court has adopted this more forgiving approach to Trump’s language, ruling, in a civil lawsuit by protesters injured at a Trump rally, that Trump could not be held liable for urging his supporters to “get [protesters] out of here,” because Trump did not explicitly call for violence and even told the crowd, “Don’t hurt ’em.”
When it comes to legal liability for political speech, ties go to the runner—meaning the First Amendment should prevail in close calls, especially in criminal trials. The Brandenburg test is an example of what are called “prophylactic” rules in constitutional law: rules that add a high standard in order to reduce the risk of violating constitutional rights. In particular, there is a serious risk of hindsight bias in any attempt to decide whether a certain speech caused, or would have caused, violence or lawlessness. And when legal rules set a bar too low and with too much subjectivity, they risk opening a door to future prosecutions tainted by partisan bias.
But this is not a tie, because a prosecution need not, and should not, rest solely on Trump’s speech. The January 6 Committee already did much of the work last summer, producing testimony from Cassidy Hutchinson and others showing that Trump took additional concrete acts that he knew would increase the risk of violence.
For example, when told that magnetometers were keeping members of the crowd away from the stage, Trump angrily ordered them removed, saying, as Hutchinson recalled under oath, “I don’t effing care that they have weapons. They’re not here to hurt me. Take the effing mags away. Let my people in. They can march to the Capitol from here.” Had this order been followed, Trump’s audience would have been both more heavily armed and physically closer, and thus presumably easier to whip up, a fact that indicates his intent and meaning when he said “fight like hell,” “we’re going to the Capitol,” and “I’ll be there with you.”
On his way back to the White House, Trump ordered that he be driven to the Capitol so he could accompany the crowd; when the Secret Service refused, according to some accounts, Trump angrily lunged at his driver. For much of the first hour after his return to the White House, Trump kept insisting on being taken to the Capitol. And not only did Trump not intervene for several hours once the violence began, he tweeted, knowing full well that the mob was wandering through the Capitol calling for the hanging of the vice president, that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.”
Making what Trump did, in addition to what he said, a centerpiece of a criminal case provides a principled basis for denying Trump a First Amendment defense. It also preserves broad free-speech protections for those who go no further than speaking in ways that only ambiguously call for violence or lawbreaking.
This “overt acts” requirement, though it has not been explicitly adopted by the Supreme Court for these statutes, is well grounded in existing First Amendment doctrine. It also accords with the long historical practice, extending back to pre-Revolutionary English law, of requiring testimony showing overt acts for any treason prosecution—a principle that is enshrined in the Constitution’s definition of treason. Many criminal statutes on conspiracy (also a kind of speech) likewise include a requirement to show overt acts toward the crime, and courts often add such a requirement to similar statutes as a way to avoid overcriminalizing speech.
Failing to hold Trump accountable will embolden future would-be authoritarians. But prosecuting him on an overbroad theory of criminal liability might lead to an acquittal or, perhaps even worse, a conviction that could be used as precedent to prosecute controversial political speech. If the Department of Justice indicts Trump for his role in the January 6 attack on the Capitol, as we think it should, it should make clear that his inflammatory speech is only part of a broader pattern of actions for which he is being prosecuted. This approach would reaffirm the government’s commitment to a robust First Amendment, to the democratic process, and to the rule of law.