Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, January 29, 2024

Burnworth on Section Three's Chilling Efect on Free Speech @UMassAmherst

Justin Burnworth, University of Massachusetts, Amherst, has published Section Three’s Chilling Effect on Free Speech. Here is the abstract.

Professors William Baude and Michael Paulsen recently announced their article, The Sweep and Force of Section Three, arguing that Section Three of the Fourteenth Amendment disqualifies former President Donald Trump from holding office given his participation in the attempted overthrowing of the 2020 presidential election. The scholars briefly acknowledge the inevitable clash between Section Three and the First Amendment but dismiss the issue as either “satisfied” under modern liberal free speech doctrine or in the case of actual conflict they argue that “free speech principles must give away.” While the article is undoubtedly one of the most vital pieces of legal scholarship written in recent memory—the general apathy towards free speech principles as an integral core protection of the Constitution is troubling. This article sets forth the potential clashes between free speech principles and Section Three. It argues that the principles cannot simply “give away” for every Section Three claim of disqualification. First, the proper way to understand the First Amendment and Section Three is that the former limits the scope of latter. The passage of Section Three did not strip away the free speech principles enshrined in the First Amendment. Second, individual rights guaranteed in the Constitution must take a preferred position to governmental powers when the two clash. If an individual right can be indirectly usurped by a later governmental power, it renders the entire process of protecting rights superfluous. Third, the United States has a history and tradition of the political majority restricting the free speech of the political minority if given the opportunity to do so. The fear of a politically motivated abuse of Section Three disqualification justifies ensuring that such a powerful tool does not go unchecked. Modern free speech doctrine is the proper instrument to ensure that no elected official is disqualified from office simply because they critique the policy preferences of those in power—a foundation that a healthy democracy is built on. Fourth, the Supreme Court ruled that elected officials enjoy the same free speech protections of that of a private citizen. Therefore, a Section Three claim that an elected official “engaged” in insurrection—through their speech—must first adhere to the Brandenburg standard to determine whether the inflammatory speech was likely to incite imminent lawless action and is therefore not protected under the First Amendment. Lastly, while the courts have yet to directly adopt the Baude and Paulsen argument, indirectly, they have subverted the First Amendment by misapplying the Brandenburg rule. Both the District Court in Colorado and the Supreme Court of Colorado utilized a backwards-looking approach to understand the context of Trump’s speech. While this approach is appropriate in other areas of speech—such as true threats—it violates the imminence requirement in incitement cases and has never been used by the Supreme Court in any case when it applied Brandenburg.

Download the article from SSRN at the link.

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