Much, maybe too much, has been written about whether Donald Trump’s insurrectionary speech on January 6 is protected by the First Amendment. Commentators have cited Justice Oliver Wendell Holmes’s famous aphorism in Schenck v. United States that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Also prominently cited is the Supreme Court’s modern test for unprotected incitements set out in Brandenburg v. Ohio: “[A]dvocacy [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
But the discussion assumes that the First Amendment gives Donald Trump constitutional protection for his speech, regardless of the content or circumstances of his speech. Does it? Is the First Amendment applicable to speech by the government, and most especially to a president’s speech?
