Impeachment Over Protected Speech Would Harm the Constitution

by Alan Dershowitz

Whatever one may think of President Trump’s speech last Wednesday—I personally found it deeply upsetting—one thing is clear: It was fully protected by the First Amendment. Nothing the president said constituted unprotected “incitement,” as narrowly defined by the Supreme Court over nearly a century of decisions. His volatile words plainly fell on the side of political “advocacy,” which is protected speech.

In the leading case of Brandenburg v. Ohio, a unanimous Supreme Court ruled that even the advocacy of the use of force is constitutionally protected, unless it is specifically “directed to inciting or producing imminent lawless action.” In subsequent decisions the courts have narrowly defined “incitement” to exclude the kind of speech delivered by President Trump. It is beyond dispute, therefore, that his speech—disturbing as it may have been—is within the core protection of political speech.

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