Civil suit against Trump will be a rare test of free speech

Former President Donald Trump's lawyers defended him during his second impeachment trial in part by arguing that his Jan. 6 speech was protected by the First Amendment.

But Trump's free speech defense may now get its day in court. Rep. Bennie Thompson, D-Miss., has filed a civil lawsuit against Trump, Rudy Giuliani, the Oath Keepers and the Proud Boys for unlawfully conspiring to interfere with Congress in the Capitol attack in violation of the Ku Klux Klan Act of 1871. And while the First Amendment doesn't apply to impeachable offenses, it does apply in cases of civil liability.

Trump's best argument to get the case dismissed would be that he can't held liable for conspiring with those who attacked the Capitol if all he did was express his First Amendment-protected political views. To decide that, a federal court would have to determine whether Trump's speech was protected under the standard set by Brandenburg v. Ohio, the controlling precedent in incitement cases.

The statute that forms the basis of Thompson's lawsuit establishes liability when two or more persons conspire "by force, intimidation, or threat" to prevent any officer of the U.S. from the "lawful discharge of the duties of his office." On its face, the law covers the Jan. 6 attacks. There is no doubt that the rioters forcefully interfered with Congress' discharge of its duties, and that Thompson was one of the people who was affected.

To win the lawsuit, Thompson would have to prove that Trump and Giuliani conspired with those who attacked the Capitol. It would not be sufficient simply to show that the attackers were inspired by Trump's speech or by Giuliani's repeated assertions that the election was stolen. A conspiracy requires agreement to commit an illegal act and intent to get it done.

Trump's simplest defense strategy would be to claim that the words he spoke on and before Jan. 6 were protected by the First Amendment. Just like the government can't put you in prison for protected speech, the government can't hold you civilly liable for constitutionally protected speech. Being required to pay damages would violate your free expression rights.

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The Brandenburg standard says that speech can only be penalized if it is directed towards inciting imminent lawless action and is actually likely to produce that lawless action. The second part of the test should be easy to satisfy in Trump's case, because the Jan. 6 attacks actually did occur right after Trump spoke. The hard part would be to show that Trump's words were "directed" to incitement, a standard that likely requires proof of Trump's intent to incite, or proof that his words were literally directed to inciting violence — or both.

Based on the evidence we've seen so far, Thompson's complaint may not be able to meet that standard. Even if Thompson could convince a jury that Trump and Giuliani conspired with the attackers, Thompson can't win unless a judge first determines that Trump's conduct violated Brandenburg. For that reason, Trump would be likely to raise his First Amendment defense right away, asking the judge to throw out the case before it ever got to trial.

The fact is, it's hard to prove incitement under the Brandenburg standard. That's why criminal prosecutors so rarely attempt it. Instead, when prosecutors want to convict someone for speech connected to violence, they tend to bring charges under statutes like the one that criminalizes material support for terrorism.

Under the material support statute, it's possible to criminally punish speech that is uttered as part of a coordinated effort to support terrorist activity — even if that speech, uttered in an uncoordinated context, would ordinarily be protected. In the landmark decision of Holder v. Humanitarian Law Society, the Supreme Court sidestepped Brandenburg altogether in upholding the material support statute.

So far, the material support statute only applies to the support of a foreign terrorist organization, not to domestic terrorist organizations. The courts haven't had the occasion to allow prosecutors to make an end-run around Brandenburg for material support of domestic terrorist groups. But Thompson's conspiracy suit hints at this eventual possibility.

In the future, if dissatisfaction with the Brandenburg standard grows, it's possible that conspiracy may become a route to punishing forms of speech that, like Trump's, skirted the very edge of incitement without crossing the constitutional line.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."