Trump and the First Amendment – Part 1

Donald Trump has been banned by social media.

Facebook, Twitter, Instagram, YouTube, Amazon web services, Snapchat, Reddit, Twitch, Liquid Web and Shopify have all banned the ex-president from tweeting posting, chatting and twitching his rants and lies.

Many of his staunchest supporters are banned, as well, including Steve Bannon and Rudy Giuliani. Twitter also banned the MyPillow guy Mark Lindell due to violations of Twitter’s “civic integrity policy.” (Full disclosure: I just bought 8 pillows from the guy. Yes, I think he’s crazy, but he makes great pillows. I promise not to reorder.)

While it’s a relief to most of the country that Trump & company have lost their most powerful megaphones, there’s another question to consider.

What about the First Amendment?

At his second impeachment trial, Trump attorney Michael van der Veen argued, “There is no doubt Mr. Trump engaged in constitutionally protected speech that the House has improperly characterized as incitement of insurrection.”

However, before the Senate trial began and we learned that their defense would focus on his “constitutionally protected speech,” 144 constitutional law professors weighed in:

“Although we differ from one another in our politics, disagree on many questions of constitutional law, and take different approaches to understanding the Constitution’s text, history, and context, we all agree that any First Amendment defense raised by President Trump’s attorneys would be legally frivolous.

“In other words, we all agree that the First Amendment does not prevent the Senate from convicting President Trump and disqualifying him from holding future office. …

“Asking whether President Trump was engaged in lawful First Amendment activity misses the point entirely. Regardless of whether President Trump’s conduct on and around January 6 was lawful, he may be constitutionally convicted in an impeachment trial if the Senate determines that his behavior was a sufficiently egregious violation of his oath of office to constitute a ‘high Crime or misdemeanor’ under the Constitution.”

Yet Trump’s lawyers, backed by a flood of legal argle-bargle, continued to claim Trump had no part in what the FBI declared a domestic terror attack.

Here is some of Trump’s whipped up rhetoric before the attack. You decide.

“…you’ll never take back our country with weakness. You have to show strength and you have to be strong. … And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore. …

Supporters chants went from “Fight for Trump,” to “Hang Mike Pence!” when they arrived at the Capitol.

“Trump’s lawyers say the exhortation to ‘fight like hell’ and other comments were figures of speech not meant to be taken literally.”

“If that doesn’t satisfy test, no one will ever be convicted under Brandenburg again,” George Washington University law professor Catherine Ross.

In Brandenburg v. Ohio, the Supreme Court held that the government cannot penalize inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Based on the definition, Trump willfully whipped up the crowd, then tells them “…we’re going to walk down Pennsylvania Avenue,” followed by the attack on the Capitol.

Lawyers for Trump argue that he never intended to bring about the insurrection of the Capitol.

My questions for the lawyers: What other intention did he have? Let’s all walk down to the Capitol and have a picnic?

However, the most supreme act of cowardice in the last 4 years took place when Majority Leader Mitch McConnell stood before his Senate colleagues and declared, “There’s no question — none — that President Trump is practically and morally responsible for provoking the events of the day.”

That statement came after McConnell voted to acquit Trump.

At the end of the day, “[Utah Senator Mitt] Romney was one of seven Republicans who crossed the aisle and voted to convict the former president…. Trump was ultimately acquitted on a 57-43 vote…” And all of it taking place in what’s been called the “world’s greatest deliberative body.”

While I don’t know the genesis of the expression, after two impeachment trials, a second with the greatest public evidence of inciting insurrection, the “body” is dead from a preordained decision from a majority without conscience.

The only people holding Trump accountable… belatedly, is social media.

History will record the trial, the Trump presidency and his co-conspirators in both houses of Congress as one of the darkest and dangerous periods in America.

Monday: my perspective.

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