There's been word that Trump's attorneys in his Senate impeachment trial will say Trump's incendiary words to the crowd before they turned and savagely attacked the U. S. Capitol on January 6, 2021 were protected under the First Amendment, in particular that Congress "shall make no law abridging ... the freedom of speech". So, Congress cannot punish Trump for the words he spoke on that morning.
Two arguments have been raised against that view.
The first, I think, is incorrect. I heard John Dean say on CNN (and other pundits on other channels) that the First Amendment is meant to protect citizens from the government, not the government (Trump as President) from the government (Congressional impeachment and Senatorial conviction). But that can't be right. If Trump as an American citizen has no First Amendment protections because he was President, how about the Vice President? How about members of Congress? How about Governors and Mayors and anyone who works for any part of the government? Should First Amendment rights be waived for elected officials but not appointed officials? How about for firefighters and sanitation workers? Suspending any citizen's First Amendment rights because they are a government official creates an absurd slippery slope which would start with the President and extend to many millions of people -- as of 2011, the Office of Personnel Management reported 2.79 million people working for just the Federal government. Do all of those people have no First Amendment rights? Chances are few of those government employees knew they were surrendering their First Amendment rights when they signed up or campaigned for those jobs.
The second argument, presented by House impeachment manager Jamie Raskin, is much better and, I think, completely correct. Representative Raskin said yesterday that the First Amendment doesn't protect someone who incites others to riot. Those words spoken by Trump on that morning to an angry and armed crowd, urged to walk down the street to the U. S. Capitol, provoked not just a riot, but a riot that killed a police officer, and wounded more than a hundred more, not to mention the severe vandalizing and threat to lives of the Vice President, Senators, and members of Congress, and their staffs. The First Amendment has been repeatedly cited by U. S. Supreme Courts as not protecting speech that directly leads to attacks on life, limb, and property, and that's precisely what Trump's exhortations to the crowd on January 6, 2021 did.
Trump is responsible for his riot-provoking words, which in fact provoked a deadly riot, and that's why the First Amendment offers him no protection for those words. I think it's important to get right, and not confuse the issue with unspoortable arguments that people lose their First Amendment rights when they become part of government.
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