January 6 and America’s Slippery Slope on Free Speech

This essay is adapted from remarks given by the author at Wayne State University Law School on April 1, 2024.

In Trump v. Anderson, decided last month, the U.S. Supreme Court ruled that only Congress, not the states, can enforce the provision of the Constitution that disqualifies oath-breaking insurrectionists from holding federal office. By doing so, the court overturned a Colorado Supreme Court decision that found that Donald Trump had incited an insurrection on Jan. 6, 2021, and could not appear on Colorado’s 2024 presidential ballot. The short-term political takeaway from the U.S. Supreme Court’s decision is that Trump’s chances of winning the presidency have gone up because he’s now likely to appear on every state’s ballot.

However, the court chose not to correct the Colorado Supreme Court’s determination that the First Amendment didn’t protect Trump’s Jan. 6 speech to supporters prior to the riot at the U.S. Capitol. The decision leaves us to wonder how committed the high court is to protecting our right to speak freely and publicly on the last election, the upcoming one or any other political issue.

If elected, our nation will likely survive another Trump administration. It will not survive, at least as we know it, if the constricted version of the First Amendment that the Colorado Supreme Court gave to Coloradans in this case—and that the highest court in our land chose not to repudiate—is nationalized. At its core, Trump v. Anderson is about our most basic political rights, not just Trump’s political ambitions.

On Nov. 17, 2023, after a five-day trial, Colorado District Court Judge Sarah B. Wallace found that Donald Trump’s speech at the White House Ellipse on Jan. 6 incited an attack on the U.S. Capitol that constituted an “insurrection” as that term is used in the Disqualification Clause of our Fourteenth Amendment. Trump had argued, as he has from the outset, that his speech was protected by the Supreme Court’s First Amendment ruling in Brandenburg v. Ohio, a binding precedent that has protected the free speech rights of political dissidents since 1969.

No other nation has anything like our Brandenburg rule. It doesn’t just make us different, it makes us uniquely tolerant, democratic and open to robust, wide-ranging, uninhibited political discourse. It has always been nonpartisan and applies to everyone—regardless of how bizarre, offensive or dangerous their ideas might be. It has shielded the rights of a war protester, an NAACP boycott leader and countless other outspoken political activists. More than any other aspect of any other provision in our Constitution, it’s what makes democratic politics possible.

According to the Brandenburg rule, only speech that intentionally incites listeners to commit imminent criminal acts, and is in fact likely to cause them to commit those acts, can be punished. Lower courts have eviscerated the Brandenburg rule, deciding that only watered-down protections should exist in those sections of the country where those courts have jurisdiction.

Despite explaining the rule correctly in an online stalking case last year, the Supreme Court has already chosen twice to ignore lower court rulings diminishing it in 2024. One is Trump’s Colorado case. The second is that of Black Lives Matter organizer DeRay Mckesson, decided only days ago. In Mckesson v. Doe, a police officer sued Mckesson after a protester at a Mckesson-organized rally in Baton Rouge, Louisiana, threw a “hard object” and injured him. The Fifth Circuit Court of Appeals announced a rule that would allow the officer to win his suit without proving Mckeeson intended to incite any violent conduct—as the Brandenburg rule requires—thus ensuring weaker free speech protections for citizens in Louisiana, Mississippi and Texas. Despite Justice Sonia Sotomayor clearly signaling that the Fifth Circuit’s ruling was mistaken, the Supreme Court refused to intervene.

Trump’s case was a warning. Mckesson’s shows a trend.

A Devitalized First Amendment

On June 18, 1964, Ku Klux Klan leader Clarence Brandenburg, dressed in a white robe and a red hood, gave a hate-filled monologue to an assembly of angry cohorts carrying rifles, shotguns and other weapons on a farm in Hamilton, Ohio. Brandenburg wanted to spread his threatening message far and wide and had arranged with local news media to have this event broadcast on local television. Network news picked it up as well.

“We are marching on Congress July the Fourth, four hundred thousand strong,” he thundered. The purpose of the march was to protest the federal government’s “suppress[ion] of the white race.” Most ominously, he announced that “it’s possible that there might have to be some revengeance [sic] taken.” He named “our president, our Congress, our Supreme Court” as potential Klan targets.

Charged with inciting violence, Brandenburg was convicted by Ohio’s Court of Common Pleas and sentenced to up to 10 years in prison. Brandenburg appealed his conviction, claiming that Ohio’s criminal syndicalism statute violated his First Amendment free speech rights, but the Ohio Supreme Court dismissed his appeal. When Brandenburg sought relief from the nation’s highest court in 1969, the Warren Court unanimously proved its ideological neutrality and commitment to constitutional free speech principles by overturning Brandenburg’s conviction.

The court was correct here. However dangerous and repugnant, Brandenburg’s racist tirade didn’t intentionally incite imminent lawless action that was likely to occur. With its decision, the justices defanged criminal laws that had been used for decades to target unpopular political speech far less threatening than Brandenburg’s.

Fast-forward to 2024. By narrowly and incorrectly construing the Brandenburg rule,  the Colorado Supreme Court has dealt a blow to the constitutional right most essential to our democratic process—the right to criticize one’s government. By deciding this case on other grounds and refusing to fix this error, our highest court has called the rights of Coloradans, and by implication, yours and mine, into question.

Amid the combustible politics of the 2024 election cycle, this aspect of Trump’s case hasn’t gotten enough attention. However, I urge, exhort and—because I'm not in Colorado—incite you to study the opinions of the trial court and that state’s Supreme Court to see for yourself how unreliable judges can be as guardians of our fundamental liberties.

Trump may have committed many crimes while president, including conspiring to overturn a lawful election by participating in the so-called “Fake Electors Plan.” Through inaction, he may also have failed in his sworn duty to protect the U.S. Capitol on Jan. 6, 2021. However, the Brandenburg rule safeguards even the likes of Trump from punishment for “inciting” an insurrection during his speech at the White House Ellipse. The House Managers during his second impeachment trial, the Colorado courts, and his many political foes who continue to argue otherwise aren’t just wrong; they’re embracing a devitalized version of the First Amendment that threatens the very democracy they claim to be protecting.

The Brandenburg rule allows speakers to say nearly anything they want to lawfully assembled crowds, especially on matters of politics. The Supreme Court arrived at this speech-friendly rule after a half-century of incoherent First Amendment jurisprudence that had allowed the government to persecute countless political dissidents—nearly all liberals and leftists—and create an atmosphere of repression during the first Red Scare (1917-1920) and the second Red Scare (1947-1957). A free society, the court finally realized in Brandenburg, requires letting even the most dangerous radicals gather and speak.

Why Trump’s Jan. 6 Speech Is Protected

If the ravings of a Klansman were protected by the First Amendment, Trump’s Jan. 6 speech is as well. The Justice Department, which has never been shy about targeting Trump, seems to be aware of this. While filing dozens of other criminal charges in Washington, D.C., and Florida, federal prosecutors have chosen not to indict Trump for inciting criminal conduct of any kind, let alone an insurrection.

However, state courts like Colorado’s are friendly forums for Trump’s political opponents. The procedural rights of the accused are weaker, and the accuser only needs to prove his charge to a preponderance of the evidence (or “more likely than not”) standard. By contrast, indicting Trump would have vested him with the full panoply of constitutional rights afforded criminal defendants and required prosecutors to prove that he intended to incite an insurrection beyond a reasonable doubt.

And that would have been only the beginning. If convicted, the case likely would have been reviewed multiple times by federal appellate courts comprised of unelected (and presumably less politicized) judges with lifetime appointments, duty-bound to apply the Brandenburg rule. Prosecutors knew they didn’t have a chance, so they didn’t bother to try.

There are several clear-cut factual reasons that put Trump squarely behind Brandenburg’s protection. First, strong evidence suggests that Trump didn’t specifically intend for his listeners to storm the Capitol—and the Brandenburg rule requires a court to find such intent prior to punishment. Trump never expressly asked anyone to storm the Capitol—not before, during or after his Jan. 6 speech. Nowhere in the text of the speech does he even come close to doing so. In fact, at one point he expressed hopes to the contrary: “[E]veryone here will soon be marching to the Capitol building to peacefully and patriotically make your voices heard.”

Furthermore, an hour and 27 minutes after the conclusion of his speech, with the Capitol under siege, he reiterated his wish for peace: “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” He reinforced his call for peace 35 minutes later by tweeting, “No violence! Remember, WE are the Party of Law & Order—respect the Law and our great men and women in Blue.” Far from ordering an attack, his words suggest that he contemplated a lawful march and, when the protest degenerated into a riot, he urged those committing crimes to stop.

It’s hard to find a clearly stated thesis in Trump’s long and winding speech that day. To the extent the speech had a specific goal, it seems to have been to pressure the joint session of Congress, and especially former Vice President Mike Pence, to send presidential electors back to the states rather than facilitate the election of Joe Biden by certifying them. Trump clearly believed that a decision on this issue one way or another would take place that day.

At no point in the speech did he suggest that Congress’ business would or should be disrupted. He repeatedly wondered what Congress was “going to do” regarding the certification of the electors, never hinting in the slightest that his audience should interrupt the process. “Today we see a very important event though. Because right over there, right there, we see the event going to take place. And I'm going to be watching. Because history is going to be made. We’re going to see whether or not we have great and courageous leaders…” (italics are mine).

All this means that in order to find that Trump’s speech wasn’t protected by the Brandenburg rule, the Colorado courts had to find that, on multiple occasions, Trump meant precisely the opposite of what he actually said.

‘The Translator’

The fact the Colorado court found that Trump’s speech is not protected, is due, in large part, to the testimony of anti-Trump star witness, Chapman University professor Peter Simi. Simi is a sociologist and putative expert on the dangers of right-wing extremism, whose resume boasts of training by the FBI and funding by the Department of Homeland Security. As one might expect, his views on Trump mirror those of the national security establishment, whose view of Trump in turn mirrors those of Trump’s most ardent political opponents.

In his 2022 testimony before the House Select Committee to Investigate the January 6th Attack on the United States Capitol (on which only Trump’s political adversaries in the House of Representatives were allowed to serve), Simi repeatedly telegraphed his legal and political beliefs by referring to the riot at the Capitol as an “insurrection.” Whether or not it was an insurrection, of course, one of the as-yet-unanswered questions the 2023 Colorado trial, during which he testified, was to decide.

Simi played a role in Trump’s trial that was all too familiar to those who study the history of political repression in America: that of “The Translator.” Translators are professional witnesses who law enforcement uses in trials, legislative hearings and other forums to destroy political movements they find threatening to the status quo. The Translator’s job is to explain to courts that an anti-government group is 1) extremely dangerous, 2) politically subversive and 3) in the habit of communicating in a secret code that only insiders and expert Translators, like themselves, can understand.

While Trump’s trial was before a civil rather than a criminal court and was brought by private citizens, not prosecutors, the arguments and objectives of Trump’s adversaries aligned perfectly with those of the Justice Department during its many prosecutions of Jan. 6 rioters and the political party of Trump’s presidential rival during Trump’s second impeachment trial.

In the longstanding tradition of The Translator, Simi deployed an updated variant of what’s come to be known as the “Aesopian language thesis,” used dramatically and to great effect by communist hunters during the early years of the Cold War. Aesop’s famous fables, like The Hare and the Tortoise use metaphors, symbols and coded definitions to convey their meanings. Translators use the Aesopian language thesis to explain to juries that anything incriminating the accused says is to be taken literally; anything exonerating the defendant says should be ignored or is actually code for something incriminating.

Communist operatives and spies did, in fact, sometimes speak in code during the Cold War, but the professional Translators of the McCarthy era routinely exaggerated the frequency with which they did so. They magnified the treasons behind the symbolic language to achieve their own political and professional goals.

Simi claimed that through years of careful study, he’d identified a “pattern of calls for violence that [Trump’s] supporters responded to.” Typical of the examples he cited was a 2015 speech in which Trump, annoyed by a protester, urged supporters at one of his rallies to “get [the protester] the hell out of here.” The court wrote that, as a result, the protester was “assaulted.”

While other politicians use words like “fight” as a metaphor, Simi claimed that Trump and his supporters understand that Trump means for it to be taken literally. Whenever Trump denounces white supremacy, neo-Nazism and similar horribles, his right-wing followers know that he doesn’t really believe what he’s saying. According to Simi’s testimony (for which he was given $35,000), there’s sedition at the bottom of nearly every utterance.

The Colorado courts dismissed without much analysis Trump’s calls for peace and to respect police on Jan. 6. But they did embrace Simi’s testimony about the “shared” and “coded” language and his claim that in the communications he studied, “Trump’s statements negating [his supposed advocacy of violence] were insincere and existed to obfuscate and create plausible deniability.” Plausible deniability, Simi explained, is part of Trumpists’ shared language. They understand that “doublespeak” is required because, if known, the wider public would reject Trump’s radical agenda.

While Simi’s testimony may have persuaded a bevy of Colorado judges that he’d cracked the Trumpists’ secret code, the pre-Jan. 6 pattern of calls to violence he identified in his testimony at best only showed that Trump’s supporters were incited by literal, not “Aesopian” or “coded,” calls to violence. Neither of the Colorado courts that credited Simi’s testimony cite even a single example of Trump spurring his crowds to violence while at the same time calling for peace, as they found happened on Jan. 6.

If the First Amendment protects anything, it protects politicians while giving political speeches—without exceptions. That an exception was found in this case, where the evidence was so flimsy and the tactics so timeworn and predictable, adds insult to injury. There was no direct call for violence—hence the need for a Translator. Nor was there any direct evidence, such as an audio recording or a firsthand witness, showing that Trump had told any person at any time that he wanted the mob to storm the Capitol. To paraphrase Richard Pryor when his wife walked in on him with another woman, who are you going to believe, the Translator or your lying ears?

History’s Repeating Itself

We live in an era of distrust, fear and political division. In times like these, when political opponents are viewed as dangerous enemies, courthouse doors tend to open for Translators. With World War I raging, and the temperature of America’s war fever at its zenith, in 1918 Socialist Party of America leader Eugene V. Debs gave a speech to supporters in Canton, Ohio. Debs was an anti-war activist and had just visited friends who'd been jailed for opposing the draft. Though he abhorred the government’s new conscription policy, he chose not to make any specific references to the draft in his speech. Instead, he criticized war in general terms. He was determined not to join his comrades behind bars.

Despite his efforts, Debs was promptly indicted for inciting his audience to dodge the draft. An aggressive prosecutor named Edwin S. Wertz asserted that when Debs told the crowd, “[Y]ou need to know that you are fit for something better than slavery and cannon fodder,” he was just being “careful”—speaking in code. Debs’ true purpose was to incite his listeners to resist conscription, as Wertz—The Translator—would prove to the jury in Debs’ trial by unpacking the hidden “poison” behind the anti-war crusader's words. Worse, Wertz insisted to the jury that the speech suggested that Debs was a full-blown “traitor” who “would bring the Bolsheviki to the United States.” Debs was convicted and sentenced to 10 years in prison. His conviction was unanimously upheld by the Supreme Court.

In the 1949 case of Dennis v. U.S., federal prosecutors put the leaders of the American Communist Party on trial for conspiring to advocate the violent overthrow of the government. For the trial, which took place at the height of the Cold War, law enforcement cultivated a cottage industry of undercover agents, snitches and professional expert witnesses—Translators—to decipher the coded language of defendants for judges and juries. During this period, the use of the Aesopian language thesis (that “communist language was hardly ever meant literally,” according to scholar Alan Filreis) was discussed openly by name in court.

In his book “Imperialism: The Highest Stage of Capitalism,” communist revolutionary Vladimir Lenin lamented that prior to the Soviet revolution in 1917, he had had to use “Aesopian language” to avoid detection by Russian authorities. Seizing on this statement, the FBI and federal prosecutors now had a name for the codebreaking they had used in cases like Debs’, and aggressively deployed Translators to point out hares and tortoises in the speech of Americans whose views they found subversive.

One of their most helpful Translators was Fordham University professor Louis Budenz, a former communist. Budenz explained to the jury in the case of Eugene Dennis and his fellow Communist Party leaders that the statement opposing the overthrow of the government in the party’s founding charter “was purely Aesopian language for protective purposes to protect the Party in its activities before courts of law.” In other words, the defendants wrote the precise opposite of what they meant because they wanted plausible deniability. Sound familiar?

Like Debs, Dennis and his co-defendants were convicted, sentenced to prison and lost their appeal to the Supreme Court. The Brandenburg rule was meant, in part at least, to protect us from repeating the ignominy of these trials and the mischief of Translators. For 55 years, it’s done a remarkable job. The Ku Klux Klan hated Chief Justice Earl Warren for his opinion in Brown v. Board of Education and, I’m sure, would have been glad to have taken “revengeance” on him personally. However, after presiding over an intolerably high number of Cold War political persecution cases, Warren understood that anything short of this new rule was incompatible with a free society.

He also understood that the rule was especially necessary during periods of national crisis. Despite his profound contempt for the Klan, and with the nation still reeling from Martin Luther King Jr.’s assassination, the choice to protect Clarence Brandenburg’s free speech rights was an obvious one to Warren and his fellow justices. They were willing to do for communists and Klansmen what prosecutors and judges around the country, including the Colorado Supreme Court, refuse to do for January 6 defendants: extend the protections of the Constitution to even the most despised political minorities.

In all three of the trials described above—those of Debs the anti-war activist in 1918, Dennis and the other communists in 1949, and Trump the “right-wing extremist” blowhard in 2023—there was a government man on the payroll to explain the covert criminality behind words that, heard in plain English, seem to merely criticize the government. Unfortunately, these cases typify trials conducted throughout their respective eras.

Criminal elements were, in fact, present in all three political movements, and right-wing extremists remain a real threat. However, there’s a big difference—a constitutional one, in fact—between Translators and the police and intelligence officers who decode the communications of criminal gangs, cartels and terrorist networks. Peter Simi’s role in Trump’s case, for example, hardly resembles that of the bookkeeper who explained how Al Capone cheated on his taxes in “The Untouchables.”

In the above cases, the government targeted politicians and political activists who were speaking openly, not secretly, about public, not private, issues. However noxious one might find their beliefs, they were all engaged in activity inherent to the democratic process and that the First Amendment was expressly designed to protect.

The rights of Coloradans are in question because of the Supreme Court's failure to renounce the Colorado state court’s First Amendment ruling in Trump’s case. The high court’s similar failure in DeRay Mckesson’s case in Louisiana extends the chilling effect on political speech beyond Colorado to three other states. With a few more decisions like these two, the Justice Department might reconsider its decision not to indict Trump and who knows how many other political troublemakers who come after him.