Free speech won an important victory Saturday, when the Senate acquitted former President Donald Trump of incitement.
Trump’s lawyers defended the principle that the First Amendment applies everywhere, including Congress, contrary to what lead House impeachment manager Rep. Jamie Raskin (D-MD) argued. Moreover, they defeated what Trump defense attorney Michael van der Veen mocked as the “Raskin Doctrine”: the idea that only Democrats are entitled to free speech.
Van der Veen — a street-smart Philadelphia lawyer, the perfect contrast to Raskin’s academic legal pretensions — called the Democrats’ argument “constitutional cancel culture.”
What Raskin and his team were trying to do was to say that political speech with provocative words like “fight” was perfectly acceptable if Democrats used it — even in the context of violent nationwide riots — but that every statement, every tweet, by Trump and his supporters was presumed to be inflammatory.
Van der Veen and his colleagues, David Schoen and Bruce Castor, showed the hypocrisy of Raskin’s position when they showed a lengthy highlight reel of Democrats — including many of the Senators sitting in the chamber — using the word “fight,” and the phrase “fight like hell,” to which Raskin and the Article of Impeachment team had ascribed particular significance.
Raskin’s response was that only Trump’s rhetoric was followed by a violent attack on the U.S. Capitol. But Trump’s lawyers pointed out that left-wing rioters had attacked the White House last May, and nearly overrun it. They did so as Democrats were enthusiastically encouraging the unrest in Washington, DC, and throughout the country.
Indeed, the mood in the nation’s capital that weekend was one of insurrection. Some Democrats were clearly hoping Trump would resign. The only difference between the White House riot and the Capitol riot was that the National Guard arrived in time.
Remember that then-candidate Joe Biden mocked Trump for being evacuated to a bunker at the White House — as if he had been hiding from the public, rather than forced to flee from an insurrectionary mob. Biden and the Democrats claimed, falsely, that Trump had used “tear gas” to remove the “peaceful protesters” from the area.
That lie had consequences, as Trump’s lawyers noted Saturday: it probably led Democrats to reject National Guard protection for the Capitol on Jan. 6.
The Trump defense team did something else that was long overdue: they showed footage of the Black Lives Matter riots, interspersed with clips of Democrats and media encouraging the unrest. They also called out President Joe Biden and Vice President Kamala Harris for supporting the chaos, and failing to defend police. They noted that Speaker Nancy Pelosi (D-CA) had referred to federal law enforcement personnel as “stormtroopers,” i.e. as Nazis.
They gave voice to the victims.
The victims include not only those who were killed by the riots, or who lost property, but also the millions of Americans who live in fear of losing their social media accounts, their jobs, or their lives if they question prevailing left-wing dogma.
Trump’s lawyers held Democrats publicly accountable — for the first time — for their role in encouraging both the riots and the moral panic that accompanied them. If Trump was guilty of “incitement,” then so were the Democrats — far more so.
Trump’s lawyers hastened to point out that the Democrats were not guilty — and nor was Trump. The First Amendment’s freedom of assembly is abused by those who ignore the word “peaceably” in the text. But it is also abused by those who discriminate against speech they do not like. Raskin lost the case when he argued that years of Trump rallies were “incitement” to violence, implying that the millions of people who heard Trump speak were violent insurrectionaries.
Had Raskin and the House managers won, Democrats would have been emboldened in their ongoing assault against the free speech of their opponents. The “cancel culture” would have been validated.
Raskin made the absurd claim in his closing argument that Trump’s free speech had not been stifled — as if the former president had not been banned from Twitter and other social media platforms.
The “Raskin Doctrine” came ten votes away from being a constitutional norm.
One acquittal will not reverse the cancel culture. And it is worth noting that a majority of the Senators still voted with Raskin, even though they fell short of the two-thirds required. It should have been 100-0 for acquittal, based on the First Amendment alone. Still, what Trump’s lawyers showed America will not easily be unseen, nor will it be forgotten.
The “cancel culture” violates the spirit, and sometimes the letter, of the First Amendment. It is immoral, and un-American.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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