Attorneys for former President Donald Trump are asserting that the President's claims of a stolen election and widespread fraud that needed correcting--by force if necessary-- so he could rightly remain in power are shielded by the First Amendment's protection of unpopular speech, including his barrage of tweets on the subject, which were repeatedly cited by House Impeachment Managers in making their case for Senate conviction.
That came in a filing with the Senate in advance of the former President's impeachment trial next week. Trump has already been impeached by the House, for a second time. The Senate did not convict the first time around and is not expected to this time, either.
House Impeachment managers laid out their case for the high crime and misdemeanor charge of inciting the Capitol insurrection that left one policeman and four others dead and forced legislators and the Vice President to hiding from an angry and armed mob.
That case was built in part on the President's tweets leading up to the insurrection, tweets saying that he had won in a landslide but that the victory had been stolen from him, including the tweet even after the insurrection to the effect that "these are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots..."
But in response, Trump's lawyers said that following the election, the President had "exercised his First Amendment right under the Constitution that the election results were suspect..."
The President still denies that his statements were false and his lawyers said that like "all Americans" the President is "protected by the First Amendment," uniquely so among all nations, in that the Constitution "specifically and intentionally protects unpopular speech from government retaliation."
Trump is arguing that the entire impeachment trial is moot because he is no longer President. But if that argument does not fly, he needs to be ready to address the underlying charge of inciting a mob to attack the U.S. Capitol, which his attorneys did in part by invoking the First Amendment, sometimes loftily: "The actions by the House make clear that in their opinion the 45th President does not enjoy the protections of liberty upon which this great Nation was founded, where free speech, and indeed, free political speech form the backbone of all American liberties."
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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