Writing in an\u00a0op-ed for The Hill<\/a>, Dershowitz made a case against a key argument contained in the brief (pdf<\/a>), namely that \u201cthe First Amendment does not apply at all to impeachment proceedings,\u201d signals Congressional willingness to take aim at freedom of speech more broadly.<\/p>\n \u201cThe brief filed by the House managers advocating the conviction and disqualification of citizen Donald Trump contains a frontal attack on freedom of speech for all Americans,\u201d\u00a0<\/strong>Dershowitz wrote.<\/p>\n \u201cIt states categorically that \u2018the First Amendment does not apply at all to impeachment proceedings,\u2019 despite the express language of that amendment prohibiting Congress from making any law, or presumably taking any other action, that abridges \u2018the freedom of speech.’\u201d<\/p><\/blockquote>\n Attorney Alan Dershowitz, then member of President Donald Trump\u2019s legal team, speaks to the press in the Senate Reception Room during the Senate impeachment trial at the Capitol in Washington on Jan. 29, 2020. (Mario Tama\/Getty Images)<\/em><\/p>\n The legal scholar then challenged another statement in the brief, namely that \u201cthe First Amendment exists to promote our democratic system.\u201d<\/strong><\/p>\n \u201cThis categorical statement surely would have surprised the Framers of the First Amendment, who believed in freedom of speech but not so much in democracy,\u201d Dershowitz wrote. \u201cThe Framers of our constitutional system thought they were building a \u2018republic,\u2019 with limited suffrage and many checks on \u2018democracy,’\u201d he added, arguing that freedom of speech is \u201cessential to keeping it a republic, but not necessarily a democracy.\u201d<\/p>\n \u201cSo, no, the First Amendment does not exist only to \u2018protect our democratic system.\u2019 It exists to protect our liberty, regardless of what system we choose,\u201d<\/strong>\u00a0he wrote.<\/p><\/blockquote>\n Dershowitz said that the argument made by the authors of the House brief\u00a0that the First Amendment \u201cdoesn\u2019t apply to presidents or others who \u2018attack our democracy,\u2019 is the same as that made by Sen. Joseph McCarthy and his acolytes decades ago \u201cwhen they sought to deny First Amendment protection to communists and others who were seen as enemies of democracy and who, if they had come to power, would have denied the rest of us our freedoms, including that of free speech.\u201d<\/p>\n \u201cFreedom of speech must include those who would replace democracy with other systems of governance.<\/strong>\u00a0It must even include those who advocate severe restrictions on freedom of speech, as many young left wing radicals do today. They, too, must be allowed to express their dangerous views,\u201d he argued.<\/p><\/blockquote>\n The House brief argues that\u00a0the First Amendment protects private citizens from the government but \u201cit does not protect government officials from accountability for their own abuses in office.\u201d<\/p>\n Holding Trump \u201caccountable through conviction on the article of impeachment would vindicate First Amendment freedoms\u2014which certainly offer no excuse or defense for President Trump\u2019s destructive conduct,\u201d the brief\u2019s authors argue.<\/p>\n \u201cEven if the First Amendment were applicable here, private citizens and government officials stand on very different footing when it comes to being held responsible for their statements,\u201d\u00a0<\/strong><\/em>they wrote.<\/p><\/blockquote>\n Citing U.S. Supreme Court rulings in cases\u00a0Branti v. Finkel<\/em>\u00a0and\u00a0Elrod v. Burns<\/em>, they argued that, \u201cas the leader of the Nation, the President occupies a position of unique power. And the Supreme Court has made clear that the First Amendment does not shield public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important government interests.\u201d<\/p>\n The House brief alleges that Trump incited a mob that breached the U.S. Capitol on Jan. 6 by sowing doubt about the integrity of the 2020 presidential election.<\/p>\n Protesters clash with police at the U.S. Capitol in Washington on Jan. 6, 2021. (Julio Cortez\/AP Photo)<\/em><\/p>\n Trump\u2019s legal team denies the allegation and argues in a memo (pdf<\/a>) that the trial is unconstitutional because Trump is no longer president. The team also argues that Trump exercised his First Amendment rights in calling into question the results of the election.<\/p>\n \u201cAfter the November election, the 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of COVID-19 pandemic \u2018safeguards\u2019 states election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures,\u201d the legal team wrote.<\/p>\n \u201cLike all Americans, the 45th President is protected by the First Amendment,\u201d they wrote. \u201cIndeed, he believes, and therefore avers, that the United States is unique on Earth in that its governing documents, the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation.\u201d<\/p><\/blockquote>\n \u201cIf the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all,\u201d they added.<\/strong><\/p>\n Dershowitz\u2019 sentiment that the reasoning featured in the impeachment brief is a threat to freedom of speech more broadly was echoed in a\u00a0statement by<\/a>\u00a0Trump adviser Jason Miller, who said: \u201cnot only will President Trump be on trial next week. The First Amendment will be on trial next week because the Democrats aren\u2019t going to stop with attacking President Trump, they want to go after the free speech and the rights of all Americans.\u201d<\/p>\n Democrats face an uphill battle in the Senate in their pursuit of an impeachment conviction against Trump.<\/strong>\u00a0Forty-five Republican senators voted in favor of a resolution calling the trial unconstitutional, since Trump is now a private citizen. With the Senate split 50\u201350, the impeachment managers would have to convince 17 Republicans that the trial is constitutional and that Trump is guilty of inciting an insurrection.<\/p>\n![\"\"](\"https:\/\/zh-prod-1cc738ca-7d3b-4a72-b792-20bd8d8fa069.storage.googleapis.com\/s3fs-public\/styles\/inline_image_mobile\/public\/inline-images\/Trump-claps-with-flags-700x420.jpg?itok=51xEAN9i\")
<\/picture><\/a><\/p>\n![\"\"](\"https:\/\/zh-prod-1cc738ca-7d3b-4a72-b792-20bd8d8fa069.storage.googleapis.com\/s3fs-public\/styles\/inline_image_mobile\/public\/inline-images\/GettyImages-1202853042-crop-1200x720.jpg?itok=_hSvQE6C\")
<\/picture><\/a><\/p>\n![\"\"](\"https:\/\/zh-prod-1cc738ca-7d3b-4a72-b792-20bd8d8fa069.storage.googleapis.com\/s3fs-public\/styles\/inline_image_mobile\/public\/inline-images\/capitol-clash-1200x800.jpg?itok=BAEAGUo6\")
<\/picture><\/a><\/p>\n