This morning the Washington Post published my opinion on the impeachment and the First Amendment. Here is an excerpt:
Former President Donald Trump is on trial in the Senate for his role in allegedly promoting the January 6 attack on the Capitol by a mob seeking to turn the results of the 2020 presidential election upside down. Trump’s lawyers and some legal scholars claim it would be unconstitutional to condemn Trump because his speech was protected by the First Amendment.
When he stood on the ellipse and said to the crowd, “If you don’t fight like hell, you will have no more land” and “we’re going to walk down Pennsylvania Avenue … we’re going.” to the Capitol, “he may have been provocative and unwise. But the argument goes that he did not instigate imminent violence according to the standards set by the Supreme Court.
The first change protects individuals from criminal and civil sanctions for a wide range of speeches. But it does not protect government officials from impeachment and conviction.
Under the Supreme Court precedent, subordinate government employees have significant protections against dismissal because of their political views and speech. However, the court also made it clear that higher-level policy makers do not enjoy such protection. Indeed, high-ranking officials are constantly being fired for their political speech.
The idea that civil servants can be charged and dismissed for making non-criminal statements that violate the duties of their office stems from the early days. Two early impeachments of federal judges were brought up largely through a speech that indicated they could not be trusted to perform their duties properly …
I’ve already written about impeachment and the first amendment in a number of posts here on the Volokh Conspiracy blog. Find the latest information here, including links to others.