Impeachment and the 1st Amendment
House of Representatives wasted no time in their second impeachment attempt of former President Trump. The Charge, inciting insurrection to his followers who met to hear the President on January 6th, the day the election was certified.
While Democrats in the house are adamant that they can charge the former President based on him telling his followers to peacefully march to the capital and let their voices be heard, some people took his speech to mean "storm the capital".
Democrats however will have a difficult case to prove based on the Brandenberg Standard. The Brandenberg standard as determined by the supreme court stated, "speech was protected: “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”
President Biden, who is calling for unity in the United States said on Friday that he wouldn't mind if the impeachment trial started after the Senate was able to confirm more of his Cabinet nominees. But given that impeachment by its very nature is divisive, some people speculate that Biden's words were nothing more than virtue signaling.
Constitutional scholars are split on the issue of whether it is constitutional to impeach a president who has left office. However, Democrats are going full throttle to pursue the limits of constitutional mandate.
If it is determined that Trump's rhetoric did incite a mob to act violently, which would be difficult to prove in a court of law, it would dramatically affect the speech of a majority of sitting politicians. Those such as Maxine Waters, who called on supporters to "get into the face" of Trump's cabinet. "Tell them they are not welcome." Also noteworthy is the threats of the whirlwind when referring to Justices Kavanaugh and Gorsuch by Chuck Schumer while addressing his supporters.