Bernard Ashe called me earlier today to ask me a question about the impeachment proceedings. Understand that Bernard, before he retired, was one of the country’s most distinguished lawyers, General Counsel of the New York State United Teachers (NYSUT) and the first African-American member of the Board of Governors of the American Bar Association (ABA). He has one of the sharpest legal minds of anyone I’ve known.
The question that Bernard asked me was characteristically incisive – doesn’t the government speech doctrine mean that the ex-president had no First Amendment protection for his actions as president of the United States. All federal employees give up the right to speak in ways that are contrary to the work of their offices. Insurrection is completely contrary to the legitimate work of a president. He has no right to claim protection for what he says in a government proceeding to hold him responsible for breaching his responsibility to the United States.
The letter of Constitutional Law Scholars on President Trump’s First Amendment Defense, signed by nearly 150 of us and dated February 5, 2021, touched on “the scope of the government’s power to limit its own employees’ public expression” but based its argument on a different doctrine, defining incitement, and concluded that the ex-president has no First Amendment defense.
But that issue of the government’s power is significant. As the Legal Information Institution at Cornell puts it, the Supreme Court, “relying on the government speech doctrine, has rejected First Amendment challenges to … disciplinary actions taken as a result of statements made by public employees pursuant to their official duties….” citing Garcetti v. Ceballos, decided by the Roberts Court in 2006.
In other words, there are multiple reasons the ex-president has no First Amendment defense to his assembling a mob, inciting it to violence and insurrection, and watching hopefully while the mob committed murder, mayhem, and damage to federal property. The ex-president’s claim of such a privilege is itself sufficient reason to bar him from ever again holding any public office in America. He is an outrage, an embarrassment and a danger. The gall of those who defend the indefensible should disqualify them too from any public office in this country, permanently.
Constitutionalism and Democracy 