Impeach Trump But Not for What He Said on January 6th

It’s chilling when my fellow liberals like Nancy Pelosi start talking about “incitement of insurrection,” a charge that’s been used against the Left and doesn’t apply here.

Donald Trump was impeached on Wednesday for the second time, and rightfully so. As the House of Representatives charged, Trump “threatened the integrity of the democratic system,” “interfered with the peaceful transition of power,” and “betrayed his trust as President.” He should be convicted by the Senate and barred from ever holding office again.

But is Trump also guilty of “incitement of insurrection,” to quote the title of the House’s lone article of impeachment? I don’t think so. Terms like that have been weaponized across our history to suppress dissent, especially when it comes from the Left. My fellow liberals should be wary of invoking these words now, even for a cause as just as the removal of President Trump.

Consider the fate of Charles Schenck, the secretary of the Socialist Party in Philadelphia during World War One. Schenck was arrested and convicted for circulating flyers urging draft resistance. His sentence was upheld by the Supreme Court in 1919 when Justice Oliver Wendell Holmes famously argued that Schenck’s advocacy was tantamount to falsely shouting fire in a crowded theater. It represented a “clear and present danger” to the nation’s wartime effort, Holmes said, so the government had it shut it down.

Holmes would come to regret his ruling in that case, which could be used to censor almost anything. Just a few months later, the court upheld the conviction of protesters who had distributed flyers condemning the American invasion of Russia during the Bolshevik Revolution. Holmes believed that these leaflets—unlike Schenck’s—didn’t pose a clear danger to the war effort. But he was in the minority this time. The government had a new hunting license, and it was declaring open season on free speech.

During the 1950s, hundreds of Americans were jailed, harassed, or hounded out of their jobs for prior or current affiliation with the Communist Party. In Texas, joining the Party was punishable by 20 years in jail; in Michigan, the penalty was life in prison. The justification was the same one that censors always use: Communist speech could cause harm, especially during war. We were fighting a Cold War rather than a hot one, pitting the United States against the Soviet Union in a global battle for hearts and minds. But that was all the more reason to suppress speech, lest anyone on our side consider joining the other.

Only in the 1960s and 1970s would America finally start to protect the right to dissent. As protest against the Vietnam War swelled, the Supreme Court overturned the arrest of 19-year-old Paul Cohen for wearing a jacket that bore the words “F___ the Draft.” Charles Schenck couldn’t have gotten away with that. But now Paul Cohen—and the rest of us—could.

At the same time, the Court also upheld the free-speech rights of racists and other bigots. When Ku Klux Klan leader Clarence Brandenburg was arrested for telling a KKK rally in 1964 that “there might have to be some revengeance [sic] taken” against the federal government for suppressing “the white, Caucasian race,” the Court said his speech should be allowed. To censor him, the state would have to show evidence of “imminent lawless action.”

That’s the rule now, as well it should be. You can’t suppress speech simply because you fear it might create some kind of disturbance. You need to prove that it poses an obvious and immediate threat of violence, which is a much stricter standard that Holmes’ clear and present danger test.

So it was chilling to hear Speaker Nancy Pelosi use exactly those words during Wednesday’s impeachment debate when she called President Trump a “clear and present danger” to the country. I realize that she was referring to the threat that Trump poses to the nation, in the broadest sense, and of course, she’s right. But her choice of phrase was jarring, nevertheless, because it’s what every censor says when they want to silence somebody else.

To be clear, I’m not in the least bit worried about Donald Trump’s freedom of speech. As we have all learned, and all too well, he can say whatever the hell he wants. My concern is that last week’s riot—and this week’s impeachment—will be used to muzzle future dissent. Then we all lose.

Let’s be honest: we don’t know if Donald Trump’s speech at the Washington Monument directly caused protesters to invade the Capitol. But we do know that he refused to recognize the results of the November election, he pressured state officials to overturn them, and he told his vice-president to invalidate electoral votes. And after the riot started, he did nothing to protect lawmakers and others who were in mortal peril. He should be impeached for what he did before and after the insurrection, not for “inciting” it.

Did Trump’s lies and vicious rhetoric play a role in inspiring the invasion of the Capitol? Of course, they did. But in the United States, that’s not enough to suppress speech. And if you think otherwise, watch out! The next time around, the censors might claim that your own speech created a clear and present danger.

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Jonathan Zimmerman

Jonathan Zimmerman teaches education and history at the University of Pennsylvania. He is the author of  The Amateur Hour: A History of College Teaching in America, published by Johns Hopkins University Press. He is the co-author (with Signe Wilkinson) of Free Speech, And Why You Should Give a Damn, which will be published in the spring by City of Light Press.