Harvard Law Professor Explains Why Trump’s ‘Free Speech’ Defense May Not Stick

Harvard constitutional law professor Laurence Tribe has poured cold water on the free speech defense being put forward by former President Donald Trump’s legal team ahead of his Senate impeachment trial for inciting the deadly U.S. Capitol riot.

Trump impeachment counsel David Schoen argued in an interview with The New York Times on Tuesday that the former president’s provocative comments to his supporters before they ransacked the Capitol on Jan. 6, for which the House impeached Trump for a second time last month, was actually protected by the First Amendment.

“We can’t control the reaction of the audience,” Schoen was quoted as saying.

CNN’s Erin Burnett on Tuesday asked Tribe if the defense would work.

“I don’t think so. It’s a very serious point, but it’s wrong,” Tribe replied.

Tribe said he recognized “there is a difference between the right of an ordinary citizen to express herself passionately and the right of someone to run for president, take the oath as president and then stand by the presidential seal in front of the White House and urge an angry mob to burn it down.”

The “usual trope about yelling ‘fire’ in a crowded theater, which isn’t within your rights of free speech, doesn’t quite capture” the severity of Trump’s rhetoric that whipped his supporters into a frenzy ahead of the riot, he added.

Trump, even before the election, spread baseless conspiracy theories about mass voter fraud. Following his loss to President Joe Biden, Trump incessantly reiterated the same false talking points as he refused to concede.

“What’s involved here is much more like being the fire chief and urging a mob to burn the theater down. That is not freedom of speech,” Tribe said. “We are not talking about the rights of people to express themselves. We’re talking about getting rid of somebody permanently from government when that person is an enemy of government, when that person threatens to take it apart.”

Trump’s trial in the Senate is set to begin next week.

Democrats need 67 votes to convict Trump and prohibit him from taking office again. Only a handful of GOP lawmakers favor convicting the one-term president.