I see smart people saying specious things about Trump’s speech. Some such speech about Trump’s speech is dangerously misleading. Some falsely state or imply that Trump’s speech is extra-protected by the First Amendment merely because Trump is a political candidate. Some say or imply such things, specifically, about Trump speech that certainly may (and Trump certainly may intend) to intimidate actual or potential witnesses, lawyers, jurors or judges (who may fear for their own or their families’ physical safety) in Trump’s trials. Trump has no more right than any mafia don does to use explicit or implicit threats or intimidation to undermine the process of law that is due to (and is required for) all criminal defendants.
First, Trump’s efforts to take public office and become a public servant do not afford his speech more protections under our Constitution than we all enjoy. As shown in a previous piece (quoting the U.S. Supreme Court (SCOTUS)), the “speech” of any person on “matters of public concern” is “at the heart of the First Amendment’s protection.” More specifically and emphatically, any person’s “speech” about our public servants or about how they perform their public service is the very “essence of self-government,” so such “speech” by any person necessarily “occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Trump’s speech is not more special than ours in this regard.
Second, our systems of law and government do not make any actual or potential public servant any more specially protected (in any relevant respect) than the public. Pretty much everybody intuitively knows at least this most fundamental aspect of our systems of law and government.
The very cornerstone of the foundation of both systems consists of two “Truths” that are “self-evident,” i.e., that “all” citizens are “equal” under the law, and all citizens have equal “Rights” to “Life, Liberty, and the Pursuit of Happiness.” In that regard, actual or potential public servants cannot (logically or lawfully) be more special than the public they serve. The foregoing point was made again at least as emphatically by our original Constitution and then again even more emphatically with repeated amendments.
“We the People of the United States” wrote and ratified our own “Constitution” (and constituted federal government) precisely to “secure the Blessings of Liberty to ourselves.” We the People designed the Constitution to protects ourselves from all state and federal officials. So our Constitution requires all legislators and all officers (including every judge of—and every attorney admitted to practice in—every state or federal court) to acknowledge that they are subordinate to our Constitution by swearing that they will “support” our “Constitution” as “the supreme Law of the Land.” The president must swear a special oath that is far more emphatic. He must “to the [very] best of” his “Ability, preserve, protect and defend” our “Constitution.”
Some wise people foresaw that some (purported) public servants just would not be able to resist the temptation to abuse their powers and abuse the people they purport to serve, so We the People promptly amended our Constitution to re-emphasize the equality before the law of all persons and all public servants: “No person” whatsoever may “be deprived” by any public servant whatsoever “of life” or any “liberty” or any “property, without due process of law.”
Some people (with some alarming similarities to Trump) pretended (like Trump) that the foregoing aspects of our systems of law and government did not apply to them. So We the People again amended our Constitution to again re-emphasize that no public servant whatsoever, even of “any State,” has any power to “deprive any person of life, liberty, or property, without due process of law” or to “deny to any person” the “equal protection of the laws.”
All citizens are equal, all other persons are equal, and all public servants are equal under the supreme law of the land (our Constitution) and under all laws, all of which must comply with our Constitution. Trump’s speech must be protected, and may be punished, under the same standards that govern the speech of the rest of us.
For 55 years, with the famous decision in Brandenburg v. Ohio, 395 U.S. 444 (1969), SCOTUS has emphasized the limits that Trump’s speech has exceeded. The “constitutional guarantees of free speech and free press do not” protect any speech that has been proved to constitute “advocacy of the use of force” or “advocacy” of any other “law violation” when “such advocacy is directed to inciting or producing imminent lawless action” and it “is likely to incite or produce such action.”
Trump’s speech is, and must be, the victim of its success. Since at least January 6, 2021, Trump’s own speech—and the lawlessness and violence of the people who hear or see his speech—repeatedly have created copious evidence that Trump’s speech does incite, and Trump intends his speech to incite, imminent lawless action (including violence). For many years, starting with Trump’s rallies, Trump’s own speech has created evidence that it has the power—and he intends it—to incite imminent lawless action (including violence) by people because they see or hear Trump’s speech. Such speech by any person is not protected by our Constitution. Our Constitution is protected against such speech and people.