We Should Not Forget The Free Speech Lessons from President Johnson's Impeachment Trial

The Volokh Conspiracy ^ | January 14, 2021 | Josh Blackman and Seth Barrett Tillman

[PBRCat]

Yesterday, the House adopted a single article of impeachment, titled Incitement of Insurrection. The House did not actually charge President Trump with personally engaging in insurrection. Rather, the five-page resolution asserted that Trump's words and tweets since the election "encouraged" the "lawless action at the Capitol" and "gravely endangered the security of the United States." The House rejected any argument that the President's speech was protected by the First Amendment. The Judiciary Committee concluded that freedom of speech "applies very differently" to the President "by virtue of his office" than it does to "private citizens."

Regrettably, the House Democrats have forgotten an important lesson from the impeachment trial of President Andrew Johnson. In 1868, the Radical Republicans impeached the Tennessee Democrat for using "intemperate" and "inflammatory" language that was critical of Congress. Ultimately, Johnson was never convicted on this charge, in part, because pivotal Republican Senators insisted that the First Amendment protects the President's freedom of speech. History may repeat itself again soon.

Democrats are poised to make a similar mistake today. The House managers seem to think they are more likely to secure a conviction by presenting an impeachment article—a functional indictment—which ignores the President's free speech rights. We think this approach may be a blunder. As the managers depart further from the traditional understanding of the First Amendment, the proceeding will more likely be seen as unfair. And, Republicans who see the proceeding as unfair may, at the margin, vote to acquit. They could defend their vote by finding that the managers chose the wrong legal standard. These Senators could justify their vote as a prudential choice to avoid making bad law and bad precedent. At that point, the merits of Trump's case might not matter much. The managers should not forget the lessons from 1868.

[PBRCat]

Nancy Pelosi has embarrassed herself once again. This is a sham impeachment that is unravelling by the hour.

[big bad easter bunny]

https://www.law.cornell.edu/uscode/text/47/230

[bert]

Trump screwed he over and over and over....... the farce impeachment is the vindictive act of a woman scorned and laughed at

History will not be kind to the first woman Speaker of the House who was incapable of restraining her emotions

[left that other site]

I remember reading about this incident when I was in the sixth grade.

At that time, Boston was enamored of a native son who made it to the presidency, and is, to this day, is a darling of the demoncrats.

Although, the guy probably cheated to win the presidency, and the book was probably ghost-written, I was just 11 and didn’t know any better.

Nevertheless, “Profiles in Courage” made a big impression on me at the time, especially the story about the impeachment of Johnson.

[laweeks]

"applies very differently" to the President "by virtue of his office" than it does to "private citizens."

Incredible lack of logic . . . Trump is a private citizen as is any other citizen of this country. That same lack of logic should apply to everyone in congress no matter how "virtue of their office" theirs is. In other words, once again, they had no idea of what to charge him with.

[sauropod]

Bump

[PBRCat]

Professor Alan Dershowitz of Harvard has already written that the current article of impeachment ignores the SCOTUS opinion on Freedom of Speech and the charge of “incitement.” The case is Brandenburg v. Ohio which was decided in 1969.

Of course, left to Chief Justice John Roberts, we could learn that the Brandenburg test was merely a tax.

[skimbell]

[Regulator]

That Free Speech can incite people’s emotions was acknowledged hundreds of years ago by the very people who advocated for it.

John Milton gave all the good reasons for Free Speech almost 400 years ago, and pointed out that it could provoke men to arms...

““For books are not absolutely dead things, but ...do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them. I know they are as lively, and as vigorously productive, as those fabulous Dragon’s teeth; and being sown up and down, may chance to spring up armed men...”

But I guess we can’t expect a woman with a grade school education from her Mafiosi father to understand any of that and where our Constitution came from. Her family was still in Italy, plying their family trade of extorting, stealing and murdering.

[Verginius Rufus]

There was a movie about Andrew Johnson which portrayed him sympathetically. I don't recall the year but it was a black and white movie and ignored racial issues, so it was pre-civil rights era. The Turner movie channel put it on at the time of the Bill Clinton impeachment.

At the time of Johnson's trial, only 1 of the 11 Confederate States had senators in the US Senate--only Tennessee had met the requirements for "re-admission."

[left that other site]

I wonder if one can even find such a movie these days!

[Verginius Rufus]

Just found it: the movie is Tennessee Johnson (1942) starring Van Heflin. See the Wikipedia article. It looks like it is still available. Already when it came out there were protests including by Zero Mostel.

[left that other site]

Thanks!