James W. Pfister: Trump’s speech before Capitol insurrection and disqualification

There is much discussion about disqualification of Donald Trump from running for the presidency under the 14th Amendment, Section 3, which says that a person who has taken the oath to support the Constitution as a governmental official who engages in “insurrection or rebellion against the same” is disqualified from seeking a future office, civilian or military, even if that person only gives “aid or comfort to the enemies thereof.”

Did Trump in his speech on Jan. 6, 2021, commit insurrection or rebellion against the Constitution? Did he give aid and comfort to those who did? My purpose is to describe the infamous speech in terms of Brandenburg v. Ohio  (1969), a foundational case on First Amendment freedom of speech and its limits regarding inciting riots. Did Trump intend to incite an insurrection or was he merely reckless, even only negligent? Did he have any fault?

The speech begins by acknowledging the large crowd, coming from all over the nation, even the world. They have come “because these people are not going to take it any longer.” Trump wanted the media to show the large crowd. He criticized the media as “fake news.” “The media is the biggest problem we have … single biggest problem. The fake news and Big Tech.” He claimed the election was “rigged” by “radical-left Democrats.” He said: “We will never give up, we will never concede … You don’t concede when there’s theft involved …. It’s a disgrace.” The crowd was chanting: “Fight for Trump.” Trump said: “Thank you.”

Trump wanted Vice President Mike Pence to “do the right thing. I hope so. I hope so.” “All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.”

Trump referred to the crowd as a “movement” with “extraordinary love.” The crowd chanted: “We love Trump.”

Early on in the speech, Trump invoked peace in marching to the Capitol: “to peacefully and patriotically make your voices heard.”

Trump stated that history is going to be made when the votes are counted in Congress. If they “do the wrong thing, we should never, ever forget that they did. Never forget. We should never forget.” He said we shall see whether we have leaders or people “that should be ashamed of themselves … throughout eternity….” “So I hope Mike (Pence) has the courage to do what he has to do.”

Toward the end of the speech, he stated that we cannot allow this group of people to “illegally take over our country.” He stated: “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore …. So let’s walk down Pennsylvania Avenue.”

In Brandenburg v. Ohio (1969), the Supreme Court held that “the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or law violation except when such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This is distinguished from “mere teaching (of) the moral propriety or even moral necessity for resort to force and violence…” as opposed to “preparing a group for violent action and steeling it to such action.”

Was Trump preparing his audience for violent action or merely teaching and theorizing about the moral propriety or necessity for strong advocacy? If insurrection is defined as violence against the Capitol in this case, Trump had to have had the intent (“directed to”) to cause this result and the speech must have been likely to have led to that result.

People may differ, but I believe Trump’s speech was merely reckless; that he did not intend to incite the insurrection. Moreover, I do not believe it was foreseeable or “likely” that a mere speech would lead to the insurrection. Therefore, I do not believe Trump should be disqualified for running for the presidency by Section 3 of the 14th Amendment under the Brandenburg standard. We should trust the people in their votes “and 234 years of sturdy constitutional example.” (Wall Street Journal editorial, Sept. 5, 2023).

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Trump’s speech, Capitol insurrection, disqualification