Prosecuting Trump for Incitement Would Set a Dangerous Precedent
When Simon & Schuster canceled publication of Josh Hawley’s book The Tyranny of Big Tech, the Missouri senator called the decision “a direct assault on the First Amendment.” For reasons the Yale-trained lawyer and former Supreme Court clerk should understand, that description was wildly wrong.
By contrast, another reaction to last week’s deadly assault on the Capitol—the suggestion that President Donald Trump should be not only impeached but criminally prosecuted for inciting a riot—poses a real threat to freedom of speech. Trump’s opponents may regret establishing a precedent that speakers who neither practice nor preach violence can be held criminally responsible for the conduct of listeners inspired by their words.
Simon & Schuster shunned Hawley because he played a leading role in challenging electoral votes for President-elect Joe Biden, the same cause that motivated the pro-Trump rioters who invaded the Capitol. “We…cannot support Senator Hawley after his role in what became a dangerous threat to our democracy and freedom,” it said.
Regardless of whether that decision was wise or fair, it clearly did not violate the First Amendment, which constrains the government, not private individuals or businesses, and actually protects a company’s right to publish (or not publish) whatever messages or messengers it wants. As the title of Hawley’s book suggests, he routinely blurs that crucial distinction.
But the same constitutional guarantee that allows Simon & Schuster to disavow Hawley also gives Americans wide freedom to speak their minds, even in highly inflammatory ways. When Trump riled up thous
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