Scholars urge Supreme Court to ban Trump from ballot
As the Supreme Court prepares to decide whether former President Donald Trump can be barred from this year’s ballot for his role in the Jan. 6, 2021, assault on the U.S. Capitol, UC Berkeley Law School Dean Erwin Chemerinsky and other legal scholars are disputing Trump’s argument that his disqualification would violate his freedom of speech and the rights of his supporters.
“Trump’s violent, incendiary speech calling on others to violate the law is not the kind of speech afforded First Amendment protection,” according to a court filing Tuesday by Chemerinsky and other academic leaders. They included Lee Bollinger, former president of Columbia University, Martha Minow, former dean of Harvard Law School, and First Amendment attorney Floyd Abrams.
The court is scheduled to hear arguments Feb. 8 on whether Trump can be excluded from the ballot under Section 3 of the 14th Amendment, which bars anyone from seeking or holding public office who has taken part in, or aided, an “insurrection or rebellion” against the government. The justices are considering Trump’s appeal from a decision by the Colorado Supreme Court in December that would remove him from the state’s presidential ballot, but the high court’s ruling will apply to other states, including California, that are considering similar action.
Trump contends his Jan. 6 speech calling on the crowd he had assembled to march to the Capitol and “fight like hell” was not an insurrection. Though five people died and hundreds were injured, the event was simply a “political protest” that turned violent, his lawyers told the court, and he advised them to protest “peacefully and patriotically.”
But in Tuesday’s filing, Chemerinsky and his academic colleagues said Trump’s words were intended, at least, “to incite his supporters to prevent legislators, through threats of violence, from voting to certify the presidential election.”
Quoting a 1969 Supreme Court ruling, they said the First Amendment does not protect speech that is both “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action.”
In another Supreme Court filing Tuesday, the liberal advocacy group Common Cause said the case is “a moment of truth for American democracy.” Trump’s actions on Jan. 6, “and his open and ongoing support, even today, for the insurrectionists and their cause poses the greatest danger to our free democratic system since the Civil War,” the group said.
Trump, meanwhile, has drawn support from Republican-led states and conservative legal organizations arguing that he cannot be disqualified under the 14th Amendment.
One filing came from three former attorneys general — Edwin Meese, who served under President Ronald Reagan; Michael Mukasey, who held the office under President George W. Bush; and William Barr, appointed by Trump. They argued that Section 3 of the 14th Amendment was not “selfexecuting” and could be used to exclude a candidate only if Congress agreed to do so.
That was disputed Tuesday by Kermit Roosevelt III, a University of Pennsylvania law professor and great-great-grandson of President Theodore Roosevelt.
The history of the 14th Amendment, ratified after the Civil War, shows that it was intended “to place certain issues beyond the reach of ordinary politics,” Roosevelt’s lawyers told the court. As former Confederate leaders were being pardoned by President Andrew Johnson and fears of a future pro-Confederacy government were rising, the filing said, the amendment’s authors drafted it “precisely in order to take those issues away from Congress.”