First Amendment Blog Essay

Unbundling the First Amendment: Lessons from an Impeachment

A broad consensus of legal analysts—joined, it seems, by most senators of both political parties—recognizes that former President Donald Trump did not have a valid First Amendment defense at his second impeachment trial.  But the discussion that the trial occasioned about First Amendment defenses in impeachment trials suffered from a lack of precision about what “the First Amendment” means.  The phrase “the First Amendment” refers to a bundle of related things, and unbundling the concept is often a useful step toward clarity.  This post accordingly unbundles the First Amendment as relevant to the recent impeachment trial, and, in so doing, provides a more thorough understanding of why Trump had no First Amendment defense than has generally been articulated.  The exercise also provides a model for constitutional unbundling more generally: phrases like “equal protection,” “the Tenth Amendment,” and “the separation of powers” also refer to bundles of related things, such that a little unbundling can improve the clarity of analysis across a broad range of issues.

Discussion of the First Amendment in the recent impeachment trial moved, usually without acknowledgement, among three different things: the Constitution’s text, judicial doctrine, and general principles about free speech.  Those three things are related.  But they’re not interchangeable.

I. The First Amendment as Constitutional Text

Consider the Constitution’s text first.  In the most literal sense, “the First Amendment” refers to forty-four words appended to the Constitution in 1791.  Those words are “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances.”  Taken on their own terms, those words are not germane to impeachment proceedings.  The textual First Amendment states a set of principles applicable to lawmaking: “Congress shall make no law….”  An impeachment trial is not an exercise in lawmaking.  It is an adjudication.  (That’s why Madison described the Senate’s power to try impeachments as a judicial power, rather than a legislative one, albeit one not vested in an Article III court.)  Given that an impeachment is not an exercise of lawmaking—it makes no law—nothing that the Senate does in an impeachment proceeding can contravene the words of the First Amendment.

II. The First Amendment as Judicial Doctrine

Consider judicial doctrine next.  In court, the phrase “the First Amendment” has a broader scope than the words of the Constitution would indicate to a competent reader of English who knew nothing about American constitutional law.  As relevant here, courts often invalidate “under the First Amendment” governmental actions other than laws made by Congress.  So, the fact that an impeachment proceeding is not an exercise of the legislative power of Congress does not mean that it falls outside the conception of “the First Amendment” that prevails in free-speech cases that end up in court.  Courts articulate free-speech principles and apply them to specific cases, and that body of principles and applications becomes the thing we call “First Amendment doctrine.”  The people who argued that President Trump had a “First Amendment defense” to impeachment often meant, I think, that the principles of judicially articulated free speech doctrine afforded him a defense—principles including things like the Brandenburg test for incitement of violence.

There are two serious problems with the idea that judicial free-speech doctrine furnished President Trump with a defense to the impeachment charge.  The first is the judicial doctrine related to impeachments, which provides, per Nixon v. United States, that the work of the Senate when it sits as a court of impeachment is not subject to the strictures of the courts.  Judicial doctrine is created by courts for the use of courts: its content reflects not only judgments about the meaning of words and clauses in enacted texts (like the Constitution) but also considerations about the institutional features and limitations of courts as such.  Judicial doctrine is accordingly not an analytic lens that just any decisionmaker can use when confronted with constitutional questions, much less the analytic lens that every other decisionmaker must use.  As such, Brandenburg doesn’t define incitement as a metaphysical category.  It announces a test that courts are to use when assessing claims of incitement.  The Senate, being a different kind of institution, might have a different way of making the assessment. 

Most of the time, the Senate makes its assessments knowing that the courts might review its work.  In those cases, the Senate is wise to ask not just “What do we think is the right answer to this constitutional question?” but also “What will it look like to the courts, using their judicial lens?”  But in impeachment—where there is no judicial review—that necessity falls away.  The Senate is the final judge of what constitutes an impeachable offense, and it is not obligated to exercise its judgment by applying doctrines created for a different institution.  Indeed, it would often not make sense for it to do so, because those doctrines were designed as tools for a different kind of decisionmaker.  To be sure, a Senate that wished to act responsibly might consider judicial doctrine without being bound by it.  Sometimes courts have analyzed constitutional questions intelligently and in ways that are useful to nonjudicial actors, such that their analyses are persuasive authority or just plain illuminating.  But as with any case of persuasive authority, the decision of whether to apply that analysis, or perhaps of how to modify it, rests with the actual decisionmaker—here, the Senate.

The other serious problem with the idea that judicial free-speech doctrine furnished President Trump with a defense in his impeachment trial is that judicial doctrine is crafted for specific fact patterns, and no judicial doctrine speaks clearly to the unusual facts of this case.  Yes, there’s the Brandenburg standard for incitement.  But Brandenburg and this impeachment are distinguishable cases in several potentially relevant ways.  Brandenburg involved a criminal sanction, and the impeachment trial did not.  The defendant in Brandenburg was a private citizen, and the defendant in the impeachment trial was a public official—indeed, an official occupying an office for which doctrine is often uniquely crafted.  So, even if the Senate were to conduct itself just like an Article III Court—or, put differently, even if impeachments were tried in Article III courts rather than in the Senate—Brandenburg might not state the appropriate test for incitement in a president’s impeachment trial. 

Maybe a court faced with a case in which a senior public official was accused of incitement would fashion a test not quite as strict as Brandenburg, reasoning that public officials have duties that private citizens do not.  Or maybe a court would conclude, even before considering a Brandenburg-style question, that such an official’s status as a public employee took the whole case out of free-speech territory, in the way described in public-employee speech cases like Garcetti and Pickering.  Or maybe a court faced with the unusual and extreme facts of this year’s impeachment case, in which a sitting President engaged in a long campaign to undermine an election and, in the course of that campaign, inspired violence, would conclude that none of its prior decisions created an apparatus that squarely fit the present case, such that an incrementally new doctrinal structure was needed.  The issue that the Senate adjudicated this last week was an issue of first impression, and, in such cases, courts don’t just mechanically apply preexisting rules.  Often, they improvise, in good common-law fashion.  If, during an impeachment trial, the Senate stands in the shoes of a court—indeed, a court of last resort, given the lack of subsequent judicial review—then surely it should do no less.

III. The First Amendment as Shorthand for Free Speech

That covers the First Amendment as constitutional text and as judicial doctrine.  What’s left is the third possibility: that the impeachment trial raised a “First Amendment issue” inasmuch as “the First Amendment” is shorthand for a set of more or less widely held intuitions about free speech, rather than anything specifically stated in the Constitution or elaborated by courts.  And it does make sense to think that a Senate adjudicating an impeachment charge—indeed, a Senate doing anything at all—should take account of legitimate free-speech interests.  Free speech is an important value in our system, and rightly so, and the best ways to vindicate that value often require thinking beyond the doctrines that courts have created for their own use.  So, if an officeholder were to be impeached, and the Senate concluded that the gravamen of the charged offense was the officeholder’s expression of an idea that such an officeholder should be free to express, the Senate should not convict. 

But such an analysis cannot proceed on the premise that a President’s free-speech immunity from impeachment is as wide as a private citizen’s free-speech immunity from prosecution.  A private citizen is and should be protected from governmentally inflicted consequences for saying things like “I don’t care much about the Constitution, and I wouldn’t bestir myself to preserve it,” or “I think we should have a President for Life rather than requiring Presidents to stand for re-election.”  But if a President publicly says the first of those things and seems to mean it, he must be impeached and removed because he has repudiated his oath of office.  And if a President says, “I should be President for Life and not have to stand for re-election,” and seems to mean it, and acts in accordance with that view—say, by trying to remain in office despite adverse electoral results—he needs to be impeached and removed, because his posture is not compatible with his constitutional role.  Indeed, it’s probably a good idea to remove a President who says (and seems to mean) that he thinks he should be President for Life even before the election season comes, lest he use the considerable power of his office to undermine the election that he has said he doesn’t think he should have to respect.

These examples demonstrate that the political speech in which private citizens can engage without being subject to legal sanction is properly broader than the political speech in which a President can engage without acting incompatibly with the office.  And the fundamental question in an impeachment trial is always whether the defendant has acted in ways that are incompatible with continuing to hold the office.  “High crimes and misdemeanors,” after all, is best understood not as a reference to the statutory criminal code or to some determinate list of disfavored courses of conduct but as a placeholder for whatever conduct makes it unacceptable for an officeholder to remain in office. 

As a result, in an impeachment, the question of the proper scope of an official’s free speech merges with the question of impeachability itself.  It makes no sense to say something like “This official engaged in conduct that would be a high crime or misdemeanor but for the fact that he was exercising his right to free speech.”  If the officeholder engaged in speech in which that officeholder could rightfully engage, then he did nothing incompatible with holding office.  Free speech is not an affirmative defense in this scenario: it is a consideration built into the assessment of whether an offense has been committed in the first place.

(It is perhaps necessary here to say that this analysis might or might not be in tension with the Supreme Court’s decision in Bond v. Floyd.  In that case, the Court ruled, on “First Amendment grounds,” that the Georgia legislature could not exclude Julian Bond, recently elected to that body, from his elected office on the basis of political views he expressed while still a private citizen.  Bond does read naturally as a case in which the Court regarded the First Amendment as an affirmative defense, one that stood outside of and blocked application of the Georgia Legislature’s prima facie power to exclude.  Given the limited space available in this forum, I cannot fully analyze this question.  Suffice it to say that impeachment might be different from exclusion, that the speech of a President might be different from that of a private citizen, that the Supreme Court’s relationship to the Georgia Legislature might be different from its relationship to the United States Senate—and that Bond might be right in its result but less than clean in its analysis.)

As applied to the second Trump impeachment, therefore, the analysis runs like this: Did President Trump, while President, engage in a course of conduct incompatible with his office, such that the health of the constitutional system required his impeachment and removal?  I have little trouble concluding that the answer to that question has to be “yes.”  He actively and groundlessly sought to undermine public confidence in an election; he sought to pressure officials to distort the results of that election; and, in the course of his efforts to derail the electoral process, he inspired a mass violent attack on the Capitol Building, terrorizing the members of a coordinate branch of government.  (Whether he “incited” that attack, as incitement is defined in other contexts by judicial doctrine, is immaterial, for reasons explained above.)  It seems likely that he did all of that knowingly; at the very least he did it recklessly.  The acceptability of a President’s engaging in such a course of conduct is in no way a function of free-speech principles, because those activities are incompatible with the office whether they are pursued by means of words or otherwise.  Such a person cannot be permitted to hold office. 

Pulling back the lens a bit: What this analysis indicates about the First Amendment as a bundle rather than a unitary entity is also true, mutatis mutandis, in any number of other constitutional domains.  We often speak of “Equal Protection” or “the Supremacy Clause” or “the Tenth Amendment” without specifying whether we mean the Constitution’s text, the judicial doctrine, or something else.  And, because we do not have clarity on that point, the analysis sometimes goes awry, or discussants talk past each other without hope of mutual understanding.  If we unbundle, we can sometimes get clarity worth having.  In this case, unbundling the claim that the First Amendment applies in impeachment proceedings helps a good deal.  As a textual matter, the First Amendment is not addressed to impeachments at all.  Judicial doctrine might be informative, but it also might lead us astray: it is not designed for use in impeachment trials, and it is not binding authority there.  That free speech is an important constitutional value is definitely relevant in impeachment trials where speech is at issue.  But it must be evaluated against the question of whether the officeholder on trial behaved in ways incompatible with the office, rather than with free-speech standards designed for other people in other circumstances.