Constitutional lawyer and Harvard Law Professor Emeritus Laurence Tribe has a deep knowledge about which kinds of speech are protected by the First Amendment — and Tribe believes former President Donald Trump today stepped over the line by telling his followers to “go after” New York Attorney General Letitia James.
While the First Amendment is popularly thought to protect almost anything anyone wants to say, certain exceptions like hate speech and speech that foments violence are not protected. Insults are another story: one can utter any kind of racial or homophobic slur one wishes, but one cannot also call for violence to be committed against the insulted minority or member of the LGBTQ+ community. That is not protected speech.
Trump has been hurling insults at his antagonists for a long time — and the First Amendment ensures that the former President is free, for instance, to call Special Counsel Jack Smith “deranged” — as he commonly does.
But Tribe says Trump’s performance at his trial, just outside the courtroom where he gave an improvised press conference, involved more than simply calling Attorney General James a “racist.” Tribe says Trump “crossed the line into criminal threats when he said ‘you ought to go after this attorney general.‘”
Trump's 1st Amendment freedom of speech includes the right to express his racist views about anyone, including Attorney General Letitia James. But he has no right to foment violence against her. He crossed the line into criminal threats when he said "you ought to go after this… https://t.co/v96a0TkUiL— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) October 2, 2023
For some it was reminiscent of Trump’s presidential debate shout-out to the Proud Boys, when he said “Proud boys stand back and stand by.” (Numerous Proud Boys were later convicted on charges related to the January 6 breach of the Capitol.)
Distinguishing merely distasteful speech from the illegal kind, Tribe allows that Trump has the “right to express his racist views about anyone, including Attorney General Letitia James.”
The unprotected categories, listed here by the University Wisconsin Milwaukee, include:
- Incitement to imminent lawless action
- True threats
- Fighting words
Tribe seems to point to the first of these in calling out Trump’s “go after” instructions to his followers. Trump and certain free speech defenders will refute Tribe’s claim by saying the phrase is too ambiguous to be categorized as a call to violence.