Putting aside that at least 45 GOP senators believe, with reasonable basis, that the impeachment should not be tried after the president leaves office, the House articles allege that Trump “incited” an “insurrection.” These are loaded terms and demand a high standard of evidence to warrant their proper use. Incitement requires intent and a desire to produce imminent lawless action. Those requirements are not supported by the facts presented in the articles. Impeachment may not be a matter of criminal law, but these thresholds exist to protect freedom of speech. We should not create precedent that erodes those protections.
It will no doubt be asserted that this situation requires deploying such terms because of the infuriating actions of Capitol rioters and the tragic loss of five lives at a cherished symbol of our republic. The gravity of what happened that day is not lost on me; I was there. But the propriety of one’s speech cannot be determined solely by others’ reactions. That is a longstanding principle of First Amendment law. Hecklers do not get to veto speech, and unrelated rioters do not make senators “seditionists” or a former president an “insurrectionist.”
Speech and debate—to say nothing of free speech, generally—must have a place in our society for the free exchange of ideas to flourish. That is a core, founding principle of this country, and it is why Congress exists in the first place: so that representatives of the people and states can debate public matters and then vote on them. That deliberative function of government is a blessing of the liberty of free speech. We must steward that liberty carefully.