In short, a president who recklessly urged his followers to violate the law could be impeached even if an ordinary citizen could not be convicted for the same words, absent proof that his speech was intended and likely to produce imminent lawless action. It follows that President Trump doesn’t have unfettered free speech rights to subvert the results of a fair and free election. Their public position imbues their speech with more influence than the average citizen - as the saying goes, with great power comes great responsibility. As a matter of law, public employees are regularly sanctioned for speech that fosters a hostile work environment. The First Amendment doesn’t protect the rights of public employees to say whatever they want when speaking in their official capacity. At a minimum, because of his role and authority, the president does not have the same freedom of speech as an ordinary citizen. Whether the president has any First Amendment rights when speaking in his capacity as president has never been established. The Supreme Court has long held that public employees can be fired for on-the-job speech that would be fully protected from criminal prosecution. 6 speech, impeachment is a political remedy: to remove an executive official who has abused his office, not to convict them of a criminal offense. While the First Amendment would likely bar the criminal conviction of a private citizen for the president’s Jan. They specifically seek to remove the president from office. The ACLU believes a president can be impeached for speech that a private citizen could not be prosecuted for.įirst, proceedings to impeach and remove a president are not criminal proceedings. 6 inciting a mob, but rather identifies it as part of a pattern of “efforts to subvert and obstruct the certification results of the 2020 presidential election,” including the improper pressure placed on Georgia Secretary of State Brad Raffensperger “to ‘find’ enough votes to overturn the Georgia presidential election results and threatened Mr. It does not single out Trump’s speech on Jan. The House impeachment resolution reflects this. 6, as part of that pattern, does not run afoul of the First Amendment. Holding the president accountable for his words on Jan. If a president’s repeated lies, illegal political pressure, and the stoking of a mob to subvert the democratic process are not an abuse of power warranting impeachment, it is difficult to know what would be. 6 can be considered part of a pattern of efforts to upend an election he lost. We concluded that President Trump’s remarks on Jan. We discussed at length the free speech implications of this impeachment process. After meetings on both Saturday and Sunday, the ACLU board unanimously passed a resolution again calling for President Trump’s impeachment, which can be found here. Our board - comprised of leading lawyers and activists from every state and the District of Columbia - is a thoughtful, deliberative body of committed civil libertarians. These critics maintain that our commitment to the First Amendment should solely trigger a defense of the president’s “free speech.” But freedom of speech poses no bar to holding a president responsible for his unfounded, bad-faith effort to subvert the results of a free and fair election. Some dyed in the wool civil libertarians have criticized the ACLU for supporting Donald Trump’s impeachment.
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