What Do “Many” of the 140+ Law Professors Think About the First Amendment and Impeachment?
On Friday, nearly 150 law professors signed a statement about President Trump’s First Amendment defenses. The new statement begins:
At that trial, President Trump’s lawyers plan to defend his actions on January 6 by arguing that the First Amendment shields him from conviction. We, the undersigned constitutional law scholars, write to explain why this is wrong. The First Amendment is no bar to the Senate convicting former President Trump and disqualifying him from holding future office. Although we differ from one another in our politics, disagree on many questions of constitutional law, and take different approaches to understanding the Constitution’s text, history, and context, we all agree that any First Amendment defense raised by President Trump’s attorneys would be legally frivolous. In other words, we all agree that the First Amendment does not prevent the Senate from convicting President Trump and disqualifying him from holding future office.
The introductory section strikes a cord of unanimity. But it isn’t clear that all of the signatories agree on a single rationale of why a First Amendment defense would be
“frivolous.”
Roman numeral I is titled:
“The First Amendment does not apply in impeachment proceedings, so it cannot provide a defense for President Trump.”
I would think that all of the signatories agree with this statement. But they do not. The section begins:
“Many of us believe that the First Amendment simply does not apply here.”
Many? How many? The letter does not say. Presumably, some of the signatories agree with me and my colleague Seth Barrett Tillman that the First Amendment does apply–or at least has some relevance–to impeachment proceedings. There very well may be a consensus, but there are dissenters to this critical question.
Roman numeral II is titled:
“Even if the First Amendment applies in impeachment proceedings, it does not prohibit conviction and disqualification for violating the President’s Oath of Office.”
Again, I would think that all of the signatories agree with this statement. But they do not. The section begins:
Many of us believe that, regardless of whether the First Amendment does or does not apply to impeachment, President Trump can be convicted and disqualified . . . .
Again, “Many.” Presumably, some of the signatories do not agree with this statement. And the inclusion of “regardless of whether” makes it even less clear what “Many” professors are agreeing to. Some professors may think the First Amendment applies to impeachment proceedings. Some professors do not. Some professors think that the First Amendment does not appl
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