There is a fundamental belief among Americans that we have the right to do and say whatever we want because we are protected by the First Amendment. Although freedom of speech exists in America, all speech is not “free.” There is a cost.
On Monday, the U.S. Senate began debating whether to hold Donald Trump accountable for inciting the Capitol insurrection that resulted in the deaths of five individuals including a Capitol police officer. At issue is a single article of impeachment that accuses the former president of “reiterating false claims that he had won this election” and that he “willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol.”
In response, Trump’s legal team has asserted that the statements he made at the rally were protected by his First Amendment right to free speech. Thus, Trump should not be held accountable for any subsequent actions of the protesters.
In the landmark case of Brandenburg v. Ohio (1969), the Supreme Court, while acknowledging the sacredness of free speech, established that the government can punish what has been defined to be inflammatory speech if that speech is "directed to inciting or producing imminent lawless action producing and is likely to incite or produce such action."
However, the impeachment and trial process as set forth in the Constitution may be viewed as a political process rather than a judicial process. There is a difference. In the judicial process, attorneys dispute the existence of necessary facts to establish that the defendant did, in fact, commit the crime. In this political impeachment process, the law will be argued as opposed to the facts. Because this process is taking place in a partisan Senate, it is not likely that Trump will be found guilty, especially given the retributive nature of party politics.
As Americans, we have become comfortable with the concept of freedom, the ability to determine our own destiny. We have freedom of speech, religion, press and freedom. We are free to peacefully assemble, and we have free elections. It was the idea that all men were created equal that inspired one of the greatest civil rights movements in history where oppressed African Americans demonstrated their humanity in refusing to meet violence with violence.
The Capitol insurrection is much bigger than just a few people getting drunk on Trumpism. “We the People” must defend our nation against the domestic terroristic ideas that threaten our democracy from within such as partisan politics, classism, elitism and racism. As true citizens of America, we must do our part in protecting democracy. If nothing more comes of this impeachment trial, America should be reminded that ideas, not weapons, are the most powerful tools of revolution.
BLAIR D. CONDOLL, J.D.
political science professor, Dillard University