Trump and the First Amendment – Conclusion

Published: March 22, 2021

By Jim Lichtman
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Trump has been banned from all social media. That’s good news, right?

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Gone is the misinformation, false conspiracy theories, lies, bigotry and personal attacks. Perhaps, more importantly, gone is the media’s Fugitive-like obsession, (well, not completely), in covering every tweet, twitch and tongue lashing coming from his chubby fingers. But…

…what about Trump’s First Amendment rights and due process, and what about the rights for anyone else who chooses to use incendiary rhetoric on social media?

There are both legal and ethical facets to examine.

Let’s begin with the legal aspect. Do social media platforms like Twitter, Facebook, etc. have the right to ban anyone from using their site?


As former Rep. Justin Amash put it: “The First Amendment prohibits government censorship and protects private censorship. In a free society, Twitter and Facebook are allowed to make horrible decisions with respect to content moderation, and you are allowed to tell them off and use another service.”

Nadine Strossen, law professor at New York Law School, and for many years, the head of the American Civil Liberties Union writes, “…the First Amendment free speech guarantee, along with all constitutional rights, only protects us against the government.”

Strike two.

Norm Eisen – one of my heroes who writes and speaks cogently on ethics – and colleague Joshua Matz, wrote an opinion before the Senate trial began.

“Legal experts from across the ideological spectrum, including leading conservative scholars, support Trump’s immediate removal. Nonetheless, many Republicans will vote against impeachment, invoking two main constitutional concerns: due process and freedom of speech. …

“Starting with due process, the Constitution speaks plainly: The House has the ‘sole Power of Impeachment’ and the sole authority to ‘determine the Rules of its Proceedings.’ The House thus has broad legal authority to structure its own impeachment proceedings. As Judiciary Committee Chair Peter Rodino observed in 1974, presidential participation in that process ‘is not a right but a privilege or a courtesy.’

“Most crucially… the House already knows everything necessary to charge Trump with an impeachable offense. He committed his high crime and misdemeanor live on camera—in plain view of the House, which was then ransacked and vandalized by a mob he unleashed to block its certification of the election results. Law enforcement officials have already arrested and charged well over 150 perpetrators of the violence at the Capitol; there is no reason for the House to hesitate in charging the man who incited it all. …

“It really isn’t a close question,” Eisen and Matz conclude. “Trump’s statements in fact incited the mob to besiege the Capitol—and were part of a broader effort to subvert the democratic process.”

Strike three.

What about intention? That’s a Trump defense used so often about his rhetoric that he should put it on his license plate. How can you determine if Trump intended to incite violence or was just “figuratively speaking” as his lawyers contend?

Frankly, I can’t see any daylight between Trump’s words and supporters’ actions.

His invitation to supporters: “Big protest in DC on January 6th. Be there, will be wild!”

His speech on January 6th to thousands of those supporters: “You have to show strength and you have to be strong. …

His words: “…we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”

Another invitation: “So we’re going to… walk down Pennsylvania Avenue. … And we’re going to the Capitol…”

Minutes later: the “wild” attack on the Capitol begins.

I was never good at Algebra, but I don’t think it takes a Bill Gates to see how A goes to B which results in C.

The ethical argument is even more direct.

Dishonesty: For weeks after the election, he repeats the false allegation that the election was “stolen.” Even as the Capitol riot was underway, in a statement to supporters to quell their actions, Trump repeats, “We had an election that was stolen from us. It was a landslide election.”

Irresponsibility: With thousands of supporters listening to his January 6th speech, he whips up the crowd with more lies and attacks against both Democrats and “weak” Republicans and ends by saying, “…we’re going to the Capitol.”

Disloyalty: to the country, the democratic process, and American values.

Disrespect: to the Constitution, a lack of courtesy, civility and decency in his statements and total lack of consideration for the safety of lawmakers, including the vice president who left the floor of the Senate moments before the mob of rioters entered.

Unfair: interrupting a Constitutionally guaranteed process of certification of the votes of a fair election.

And an utter lack of conscience by placing his own interests ahead of the country.

To borrow Eisen and Matz’s earlier statement, “It really isn’t a close question.”

However, in yet another twist, The Washington Post just posted a story that Trump will launch his own social media platform in the next several months. What happens next? More rants.  More supporters praying at his feet. God help us.


  1. Wow–almost attorney Lichtman–quite a case you present.
    “Frankly, I can’t see any daylight between Trump’s words and supporters’ actions.”

    Eight-hundred Spring breakers arrested in Florida and still only 150 arrested in DC for a crime that was much worse.

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