Even Republican Presidents Would Seem to Have a Right to Free Speech

It seems to me that the point of the super partisan congressional January 6 Commission is to tar former president Donald Trump with inciting a riot (“insurrection” for the hyperbolic), an issue they raised and lost in the second impeachment battle. Perhaps they hope to persuade the Department of Justice to institute some cooked-up criminal charges against him for his comments on January 6.  If I’m right about their objective, this week the Supreme Court in a unanimous opinion seems to have dealt them a  setback.

The Trump remarks on January 6, 2020

Here are the words in tweets and before an open assembly of his supporters that most set off his political enemies. They are clearly the words of an elected official critical of some other elected officials and urging a legislative remedy.

"States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!"

“We will never give up. We will never concede. It doesn't happen. You don't concede when there's theft involved.”

He asked the attendees to "walk down" to the Capitol to "cheer on our brave senators." and to "fight like hell" because if they didn't, they wouldn't "have a country anymore." (He did this in the context of an effort to persuade the vice-president to delay the electoral vote count until the legislatures in the contested states could more fully consider the claims of vote fraud).

Trump tweeted Pence "didn't have the courage to do what should have been done." 

He called for people to "support our Capitol police and law enforcement." He added that people should "stay peaceful" and that officers are "truly on the side of our country."

"I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!" 

I read these comments to reflect his view -- and that of his supporters -- that the election was lost by fraud and that, it was his belief (right or wrong) that the law permitted the vice-president to delay the vote temporarily to allow legislatures in the contested states to reconsider their electoral votes in the light of new evidence.

You may read these comments otherwise, though I think you would have a hard case to make if you believe these words to be tantamount to encouraging an insurrection or a coup d’état.

Houston Community College System v. Wilson

In any event, this week a unanimous Supreme Court in Houston Community College System v. Wilson would seem to present a considerable hurdle to any suggestion that President Trump lacked the right to address his followers, complain about election fraud, and urge a temporary halt to counting the electoral votes. The Volokh Conspiracy is always a worthwhile source of information on constitutional issues. This week Professor Josh Blackman explains on that site the ruling that came down on March 24. 

Justice Neil Gorsuch entered the unanimous opinion in the case.  He wrote that not only do elected officials retain the right of free speech but that retention is important if they are to carry out the wishes of their constituents.

The relevant facts in that case involved an elected college board member who was often loudly and litigiously at odds with the other members who censured him and, finally, deemed him inappropriate to retain his elected board membership.  For procedural reasons relating to the way in which the case reached the Supreme Court, all the Court had before it was the verbal censuring of David Wilson, not the exclusion from office. On the sole issue before them, the Court made clear that just as Wilson had the right to complain of the board’s doing, the board had a free speech right to respond with censure.  

Our case is a narrow one. It involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment. It entails only a First Amendment retaliation claim, not any other claim or any other source of law. The Board’s censure spoke to the conduct of official business, and it was issued by individuals seeking to discharge their public duties. Even the censured member concedes the content of the censure would not have offended the First Amendment if it had been packaged differently. Neither the history placed before us nor this Court’s precedents support finding a viable First Amendment claim on these facts. Argument and “counterargument,” not litigation, are the “weapons available” for resolving this dispute. 

The short form precis of this decision is that elected officials are free to criticize each other under the Constitution.

Blackman argues, and the Wilson case supports his contention, that while the First Amendment does not preclude some restraints on the free speech rights of civil servants, the same kind of restraints are simply inapplicable to elected officials. This strikes me as self-evident. 

The Court, as I noted, did not deal with the board’s exclusion of the offending member from his elected position. But it would be inconsistent to say the board member had a constitutional right to criticize the actions of the other members, and yet allow them to retaliate against him by preventing him from taking office for having exercised that right. 

Maybe someone should slip the opinion to the hacks running the January 6 Commission.

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