Trump’s ‘Incitement’ Is NOT Protected By The First Amendment, Supreme Court Filing Says

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Ahead of arguments to be imminently held in person before the U.S. Supreme Court on a dispute over allowing Trump on the ballot considering the 14th Amendment’s ban on insurrectionists, a group of current and former officers with the U.S. Capitol Police have filed arguments with that court. They insist Trump’s involved remarks are not protected by the First Amendment.

The filers limit their specific arguments to that question. They contended that potential attempts at a defense under those Constitutional law provisions fall short at multiple junctures because of the argued role of Trump’s remarks in unlawful activity and violence, including physical attacks on police.

Referring to Trump’s comments, particularly a speech on January 6, 2021, the filing said: “They exhorted the crowd to adopt any means necessary to stop the constitutionally required electoral certification process then underway. Violence and lawless action were not only likely to result from these words—they actually did. Three law enforcement officers died, and many others were injured in the riot. […] This Court should affirm the general principle that speech like Mr. Trump’s, calling for and in service of the violence seen at the Capitol on January 6, is not protected by the Constitution.”

Trump has also raised First Amendment arguments in the context of a criminal case from Special Counsel Jack Smith that is awaiting a decision by an appeals court panel in Washington, D.C., on claims Trump made of immunity. He has specifically clamored for wide-ranging immunity that would cover everything or nearly everything a president did amid their responsibilities — which if actually established as legal precedent would demolish the ability of the judicial branch to keep presidents in check, though legal observers do not expect that Trump will prevail. And federal prosecutors contended that even if there were some broad protections from potential prosecution for a president doing their job, what Trump did after the 2020 election falls outside that. (