"WE FIGHT LIKE HELL": A FRAMEWORK FOR SAFEGUARDING POLITICAL INTIMIDATION STATUTES AGAINST FIRST AMENDMENT CHALLENGES.

• Author: Stillman, Anna D.

INTRODUCTION 914 I. CURRENT LANDSCAPE OF POLITICAL INTIMIDATION 918 A. Defining Political Intimidation Statutes 918 B. Difficulties of Confronting Modern Political Intimidation 920 II. POLITICAL INTIMIDATION ON JANUARY 6 922 A. Trump's First Amendment Defense 922 B. First Amendment Defenses in January 6 Criminal Cases 925 III. UNPROTECTED TRUE THREATS AND INTIMIDATION 927 A. Doctrinal Background 927 B. Overview of Overbreadth 929 C. Political Intimidation Statutes under the True Threat Doctrine 929 D. The Case for True Threat over Incitement 931 E. Hurdles for the True Threat Framework 933 1. Intent 933 2. Nonviolence 936 IV. COMPELLING INTERESTS WITHSTANDING HEIGHTENED SCRUTINY 937 A. Doctrinal Background 937 B. Level of Scrutiny for Political Intimidation Statutes 939 C. Compelling Interest in Thwarting Political Intimidation 941 CONCLUSION 942 INTRODUCTION

Denying former President Trump's motion to dismiss claims against him for his rally speech preceding the January 6, 2021 storming of the Capitol, the Thompson v. Trump court described the case as "one-of-a-kind." (1) But the First Amendment issues raised in the litigation can hardly be cabined to the particular circumstances of that day. Rather, Thompson raises questions about the constitutionality of prohibitions on politically intimidating speech--questions that must be addressed to preserve the protections those prohibitions afford our democratic system. Thompson and other cases against January 6 rioters provide the opportunity for courts to create impactful precedent outlining the doctrines on which these statutes rest to affirm their constitutionality.

According to the Thompson opinion, (2) Trump claimed ahead of the 2020 presidential election in which he, the incumbent, ran against then-candidate Joe Biden, that the election would be "rigged" and fraught with "fraud." (3) On election night and in the days following, he launched accusations that "they are trying to STEAL the Election" and claimed that if only "legal votes" were counted, he had "easily w[o]n." (4) Protests to "stop the steal" emerged across the country, culminating in a rally in Washington, D.C. on January 6. (5) That date marked Congress's vote to certify the Electoral College votes and consequently the outcome of the election in Biden's favor. (6)

This Comment focuses on Trump's words during that rally (as they are the central focus of the allegations in Thompson), Trump's First Amendment defense, and the court's analysis. In front of a crowd of supporters, known to have been violent in the past, Trump continued his rhetoric that the election was "stolen" and "rigged" and urged the crowd to march to the Capitol building. (7) In his closing lines, he offered the oft quoted and debated statement: "And we fight. We fight like hell and if you don't fight like hell, you're not going to have a country anymore," (8) followed by:

[W]e're going to walk down Pennsylvania Avenue . . . we're going to the Capitol and we're going to try and give--the Democrats are hopeless. They're never voting for anything, not even one vote. But we're going to try to give our Republicans, the weak ones, because the strong ones don't need any of our help, we're going to try and give them the kind of pride and boldness that they need to take back our country. (9) Following Trump's address, protesters arrived at the Capitol. While some remained peaceful, others entered the Capitol building where congresspeople were assembled for the Electoral College vote, overcoming police barriers and destroying property in efforts to stop the vote. (10) The Representatives took shelter, delaying the vote, while rioters injured police officers and others, some fatally. (11)

After experiencing the attack from the inside of the Capitol, eleven members of the House of Representatives sued President Trump, primarily alleging violation of 42 U.S.C. [section] 1985(1). (12) Section 1985(1) proscribes conspiracies that prevent federal officials from carrying out their duties by use of force, intimidation, or threat. (13) In broad strokes, Trump is said to have conspired with his allies to impede members of Congress from carrying out their statutorily-conferred duty of certifying the Electoral College votes by sowing doubt in the legitimacy of the election and urging violence in his rally speech. (14)

In his motion to dismiss Thompson, Trump raised a First Amendment defense against these allegations, arguing that his speech during the rally deserved First Amendment protection. (15) If the court were to find his speech outlawed by the statute, he argued, "then it would make these important statutes susceptible to facial challenges due to overbreadth and vagueness." (16) A reading of [section] 1985(1) inclusive of Trump's language, "would lead to a boundless statute essentially holding politicians vicariously liable for actions of their supporters, substantially chilling important political speech." (17)

An amicus brief filed by constitutional and First Amendment scholars Floyd Abrams, Erwin Chemerinsky, Martha Minow, and Laurence Tribe (the Amici) considers Trump's speech on January 6 as a prime example of what they term "political intimidation"--conduct that inhibits "federal officials, voters, and those who seek to support and advocate for candidates for federal office." (18) Section 1985(1) is a political intimidation statute, as are many voting rights laws like the Civil Rights Act of 1957 and the Voting Rights Act. (19) These "important" statutes face an uphill battle against the First Amendment, given that the conduct they proscribe and the language they use to prohibit that conduct often involve speech; "conspire," "intimidate," and "threaten" are at their core. (20)

Trump is correct that challenges to these "important" statutes pose certain dangers. But that observation does not necessitate his narrow interpretation of [section] 1985(1) or the invalidity of political intimidation statutes under the First Amendment. It does, however, implicate a debate at the heart of the First Amendment: how do we strike a balance between maintaining free political dialogue and protecting democracy?

This question is particularly vexing in the context of the challenges to the legitimacy of democratic elections. Democracy becomes pitted against itself. On the one hand, democratic values push in favor of Trump's ability to contribute freely to the marketplace of ideas. (21) As the Thompson opinion acknowledges, "[sjpeech concerning public affairs is more than self-expression; it is the essence of self-government." (22) On the other hand, democratic values push against allowing expression that weakens the ability to peacefully transfer power in accordance with the wishes of the electorate, the bedrock of democracy. "The First Amendment serves the greater purpose of promoting a democratic government and serves the people's interest in having the information they need to enable self-government," and in the circumstances like the 2020 election, these dual purposes conflict. (23)

Given this context, Thompson v. Trump is anything but a "one-of-a-kind" case. (24) It holds the potential to shape the landscape of how courts evaluate the constitutionality of political intimidation statutes and provides the opportunity, as the Amici urge, to "preserve the effectiveness of political intimidation statutes generally." (25) This Comment proposes a uniform framework for litigators and courts to utilize to affirm the constitutionality of political intimidation statutes under the First Amendment. To place these vital protections on solid constitutional footing, courts adjudicating challenges to political intimidation statutes arising out of January 6 cases should ground their decisions in (1) the unprotected nature of intimidating speech and (2) the government's compelling interest in outlawing it.

This Comment explores both avenues in four parts. Part I describes the landscape of political intimidation today. Part II summarizes courts' handling of First Amendment January 6 cases to date. Part III explores the doctrinal categories of unprotected true threats and intimidating speech, then applies them to the political intimidation context. Finally, Part IV outlines the government's compelling interest in proscribing political intimidation, enabling such statutes to overcome heightened scrutiny.

1. CURRENT LANDSCAPE OF POLITICAL INTIMIDATION

   1. Defining Political Intimidation Statutes

      Political intimidation statutes prohibit interference with exercises of democracy, from constituents voting to officials carrying out their duties. The Amici define political intimidation statutes as those that, "[a]mong other things[,] . . . prohibit threatening federal officials to prevent them from carrying out their duties, threatening citizens to prevent them from voting freely, and threatening anyone for supporting or failing to support federal candidates." (26) This categorization includes civil and criminal voter intimidation laws, such as [section] 131(b) of the Civil Rights Act of 1957 and [section] 11(b) of the Voting Rights Act of 1965, and extends further to the impediment of other political activity, such as certifying the Electoral College vote. (27)

      The political intimidation statute in question in Thompson v. Trump--42 U.S.C. [section] 1985(1)--originated in the Enforcement Act of 1871 (the KKK Act). Retaliating against the franchise of African Americans secured by the Fifteenth Amendment and the electoral success of Black candidates during Reconstruction, white Southerners engaged in voter intimidation in the form of terrorism and violence. (28) Though notorious primarily for its racial violence, the KKK's tactics extended to white political opponents as well. (29) Congress responded with the KKK Act, which contains important protections for political rights. (30) Section 1985(3)'s support-or-advocacy clauses account for most of the statute's voting-related...