Trump’s Disqualification Case Could Set a Dangerous First Amendment Precedent

SCOTUS should ensure that dissidents can continue making passionate and even angry rhetorical challenges to the political status quo without fear.

T his week, the Supreme Court will hear arguments in Trump v. Anderson, an appeal from the Colorado supreme court’s decision disqualifying former president Donald Trump from appearing on that state’s Republican presidential-primary ballot. Colorado’s highest court held that Trump is disqualified from becoming president because he “engaged in insurrection” on January 6, 2021. Under the terms of the 14th Amendment, anyone who served “as an officer of the United States” and then subsequently engaged in insurrection is barred from holding “any office, civil or military, under the United States.” The court held that Trump meets these criteria and therefore should not appear on the ballot for an office he cannot hold.

Most of the attention in this case has understandably focused on the novel 14th Amendment questions at stake. Did Trump engage in insurrection by plotting to overturn the 2020 election or by riling up a mob on January 6 and then abetting their destruction? Is the president “an officer of the United States,” and is the presidency an office “under the United States”?

But these questions should not distract from an important First Amendment question that is also under review. The Colorado supreme court held that Trump’s speech near the National Mall on January 6 was not protected by the First Amendment because it qualified as “incitement,” a type of speech that the government can punish and even criminalize. Whether the Supreme Court rules that Trump is disqualified under the 14th Amendment or not, the high court should not endorse this approach to the First Amendment. There are multiple ways that the Court could find Trump to be disqualified for insurrection without holding his speech to be categorically unprotected. Affirming the Colorado supreme court’s methods would unnecessarily set a dangerous precedent that could chill the speech of politicians and activists of all political persuasions.

During Trump’s speech on January 6, he called on his assembled supporters to “fight like hell” and told them, “If you don’t fight like hell, you’re not going to have a country anymore.” He insisted, “When you catch somebody in a fraud, you’re allowed to go by very different rules.” He announced that “we’re going to walk down to the Capitol,” and declared, “You’ll never take back our country with weakness. You have to show strength and you have to be strong.” Soon thereafter, those assembled did walk to the Capitol, and many of them violently invaded it.

Was Trump’s speech protected by the First Amendment? The legal standard to answer that question was set out by the Supreme Court in the 1969 case Brandenburg v. Ohio. In Brandenburg, the Court held that speech is not protected if it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In cases such as Hess v. Indiana (1973), the Court has since clarified that speech is only “directed to” inciting lawlessness if the speaker intends to produce that result. Thus, Trump’s speech was unprotected only if he intended to instruct his listeners to immediately break the law.

Proving a speaker’s intent is difficult, by design. As the Supreme Court explained just last term in Counterman v. Colorado, “Incitement to disorder is commonly a hair’s-breadth away from political ‘advocacy’ — and particularly from strong protests against the government and prevailing social order.” Brandenburg’s intent requirement was meant to ensure “that efforts to prosecute incitement would not bleed over, either directly or through a chilling effect, to dissenting political speech at the First Amendment’s core.” Insurgent candidates should feel safe proclaiming, “It’s time to throw those bums out of Congress,” or, “It’s time to burn down the whole system,” so long as those candidates intend their speech to be metaphorical.

The easiest way to prove intent is when a speech explicitly calls on its listeners to commit immediate violence. But calls to “fight like hell” and to “go by very different rules” are ambiguous; not every politician who uses those phrases in a speech intends them to be a literal call to arms. The Colorado supreme court thus went beyond text and looked at context, including Trump’s “knowledge of the anger that he had instigated” and “his awareness of the threats of violence that had been made leading up to January 6.” The court also noted that after the violence began, Trump “stood back and let the fighting happen, despite having the ability and authority to stop it.” From these facts, the court inferred that “violence was what he intended.”

In addition, to help determine whether Trump’s listeners understood his speech as a call for lawlessness, the court referenced testimony by a sociology professor and self-proclaimed “expert in political extremism.” The expert argued that “Trump’s calls to ‘fight,’ which most politicians would mean only symbolically, were, when spoken by [President] Trump, literal calls to violence” understood by “violent far-right extremists.” The court agreed, holding that “President Trump’s supporters did not miss or misunderstand the message.”

The Colorado supreme court thus held that Trump’s speech on January 6 was unprotected, meaning the First Amendment was no bar to disqualifying Trump on the basis of that speech. If the U.S. Supreme Court affirms that reasoning, it would be an outcome many would celebrate. But expanding the Brandenburg inquiry to encompass a search for coded language and dog whistles would have unintended consequences that should give even Trump’s harshest critics pause. Even if the Colorado supreme court guessed right in this case, opening the door to allow future courts to “decode” the speeches of other politicians would lead to the chilling effect that Brandenburg was intended to prevent.

As the Supreme Court observed in Counterman, the Brandenburg test was developed “against a resonant historical backdrop: the Court’s failure, in an earlier era, to protect mere advocacy of force or lawbreaking from legal sanction.” From the 1910s through the 1950s, the Court had allowed criminal prosecutions for political advocacy such as opposition to the draft and support for socialist reforms, on the grounds that such advocacy represented a “clear and present danger.” During this era, those who were prosecuted for their speech usually held unpopular minority views — views toward which judges were no more sympathetic than prosecutors.

This era taught that the “danger” of abstract political advocacy is inevitably in the eye of the beholder, and punishing ideas because they might be “dangerous” strikes at the core of First Amendment freedom. If political advocates knew that the abstract “dangerousness” of their speech could later be weighed by an uncharitable judge, those with the most radical views would self-censor the most.

A similar problem would arise if the Colorado supreme court’s approach were endorsed by the highest court in the land. Political advocates would know that the alleged “coded” meaning of their speech could later be parsed by judges wary of — or unfamiliar with — their views. Imagine an activist giving a speech on the National Mall urging supporters to make sure Congress passes a civil-rights bill “by any means necessary.” Or imagine a third-party presidential candidate who gives a speech outside a presidential-debate forum and declares,“It will be an existential crisis if either candidate in that building is allowed to become president.”

Or, to take a real-world example, consider then–Senate minority leader Chuck Schumer’s speech in front of the Supreme Court Building in 2020. While the justices were inside hearing a case, Schumer angrily announced, “I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

If the door is opened for judges to use a politician’s past history and worst supporters as evidence of a sinister subtext, each of these examples would run some meaningful risk of being held unprotected. And even scrupulous judges would inevitably view speech they disagree with through a more skeptical lens. It’s better not to start down that path, especially because the Colorado supreme court’s decision to disqualify Trump can be affirmed without endorsing its First Amendment reasoning.

First, the U.S. Supreme Court could simply hold that the 14th Amendment takes precedence over the First, as the later-enacted amendment. As William Baude and Michael Stokes Paulsen explained in their article that put Trump’s disqualification on the legal map, the 14th Amendment necessarily “qualifies, modifies, or simply satisfies the First Amendment to the extent of any conflict” between the two. For that reason, “The Brandenburg question is beside the point.” If a speech qualifies as engaging in insurrection, that speech is disqualifying even if it is also protected by the First Amendment. The Court could thus decline to answer the question of whether the speech is protected under the Brandenburg standard, since that question would make no difference to the outcome.

Second, the Supreme Court could shift the focus of the inquiry away from Trump’s speech and toward his conduct, including his attempts to change the outcomes in some swing states through pressure on state officials or through “alternate slates” of electors. The Court could also home in on Trump’s inaction after the Capitol had been breached, declining to send in the National Guard or try other options. If any of these actions or inactions qualify as engaging in insurrection, then the Court can once again reach the same result without needing to decide whether Trump’s speech alone is disqualifying and unprotected.

It’s a truism that “bad facts make bad law.” And the facts don’t get much worse than what we saw on January 6, 2021. But the Supreme Court can avoid making bad First Amendment law by choosing a different approach from Colorado’s high court and avoiding the Brandenburg test altogether. That is the safest path. The Supreme Court should ensure that advocates and dissidents can continue making passionate and even angry rhetorical challenges to the political status quo without fear that a court could misconstrue their speech and impose penalties or even prison.