During an interview with BBC Newshour on Feb. 8, Knight Institute Senior Staff Attorney Katie Fallow addressed First Amendment questions raised by the impeachment trial of former President Trump, which began today.
In response to a question from the BBC’s Paul Adams about whether Trump incited violence during the Jan. 6 insurrection at the U.S. Capitol, Fallow made clear that the First Amendment sets a very high bar. Explained Fallow: “You cannot be punished for speech, even if you’re advocating lawlessness or the overthrow of the government or violence, unless, in a very narrow category, you show that that speech is intended to incite imminent lawlessness or violence and is likely to incite lawlessness or violence. And it has to be imminent.”
Fallow also emphasized, however, that the Senate need not find that Trump’s speech satisfied the First Amendment standard in order to conclude that his conduct was impeachable. A letter signed by prominent legal scholars, and circulated over the weekend, made the same point.