What former President Donald Trump said in his Jan. 6, 2001, speech was protected by the First Amendment, but what his followers did at the U.S. Capitol was illegal, George Washington University law professor Jonathan Turley said.
Turley, a nationally known First Amendment scholar who said he has testified before Congress more than 100 times, spoke last weekend to a large crowd as part of the Purdue Northwest Sinai Forum lecture series.
“I criticized President Trump’s speech while he was giving it,” Turley said. “I disagree with what he was saying. I disagree what he said about (then Vice President Mike) Pence, and I disagreed about the ability to stop certification” of the electoral college vote.
“But I’ve also said that I believe that that speech was entirely protected, and I am quite confident about that,” he added.
Various prosecutors, like Washington, D.C.’s attorney general, announced that they were going to prosecute Trump for insurrection and incitement. “I wrote a column saying OK, let’s see you do that because it’ll last about a day in federal court before it’s turned down,” Turley said. Those charges weren’t filed.
“It’s notable that even (special counsel) Jack Smith didn’t charge him with that. He charged Trump with anything he could get his hands on, short of violation of the Endangered Species Act, but he did not charge him on incitement. Why? The answer is because it is protected by free speech,” he said.
“You can disagree with that speech, as I did, and still say that it’s protected by free speech,” Turley said.
“Now what people did in that riot was not protected. It was conduct. I’ve written columns saying those people deserve to be criminally charged. I mean if you bust into the Capitol and you trespass and you stop the constitutional process, of course you should be charged because you’re a criminal,” the law professor said.
One of the most revolutionary things about the nation’s founding was the concept of free speech as a God-given right, Turley said.
“The First Amendment states the protection of free speech in a way that had never been spoken before in a constitutional document and it has never been stated with such clarity since,” he said.
“The framers believed it was a natural right. That moment, as we’re going to see, was lost within a few years and we have never gained that clarity again,” Turley said.
Federal judges under John Adams adopted not a natural rights view but a functionalist view.
“We protect free speech because it has a vital role for democracy. Democracy needs free speech.”
But it’s so much more than that, Turley said “It allows you to say some speech is not that useful, valuable to democracy.”
Even what a Ku Klux Klan wizard says, though reprehensible, is still protected under the First Amendment, Turley said.
Today, free speech is under attack, he believes.
“We are living in the most dangerous anti-free speech period of our history,” Turley said. “We’ve never seen an alliance like the one we see today of government corporations and media and academia supporting censorship and blacklisting,” he said. “We sort of lost our way.”
Hillary Clinton urged the European Union to seek censorship of American citizens, Turley said, by passing the European Digital Services Act, which bars speech that is viewed as “disinformation” or “incitement.”
“They do this even though no censorship system has worked,” he said. “It’s very hard to get a free people to give up freedom.”
“We are raising a generation of speech phobics to some extent,” Turley said.
Millennials support Brazil banning X (formerly Twitter) and support the EU saying they’re going to arrest Elon Musk, he said.
“We can’t pretend that this movement isn’t successful,” he said.
Turley recounted a number of anti-free speech movements. “One has swept over Europe, and it is now unstoppable,” he said. “They criminalized a huge array of speech,” including anti-semitic speech in a restaurant, a minister speaking against homosexuality and a Hitler ringtone on a mobile phone.
In the United States, free speech is withering in academia, he said. A Jewish speaker was disinvited when university officials feared for his safety in light on the war in Gaza. Turley praised Purdue University for being one of the first to sign on to the University of Chicago principles, which warn students that they will find ideas that are triggering and upsetting, but that’s what higher education is all about — a forum for learning all kinds of ideask even ones you disagree with.
Doug Ross is a freelance reporter for the Post-Tribune.
