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The Lawfare Podcast: Why the First Amendment Doesn’t Protect Trump’s Jan. 6 Speech

Jen Patja, Natalie K. Orpett, Alan Z. Rozenshtein, Jed Handelsman Shugerman
Friday, October 28, 2022, 12:00 PM
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There's been a lot of discussion about whether Donald Trump should be indicted. Lately, that discussion has focused on the documents the FBI seized from Mar-a-lago or the Jan. 6 committee's revelations about his efforts to overturn the 2020 election. But what about his speech on the ellipse on Jan. 6 when he told a crowd of thousands to “fight like hell,” and they went on to attack the Capitol? Isn't that incitement?

Lawfare executive editor Natalie Orpett sat down with Alan Rozenshtein, a senior editor at Lawfare and an associate professor at the University of Minnesota Law School, and Jed Shugerman, a professor at Fordham Law School. Alan and Jed explained the complicated First Amendment jurisprudence protecting political speech, even when it leads to violence, and why they believe that given everything we know now, Trump may in fact be criminally liable. They also reference Alan and Jed’s law review article in Constitutional Commentary, “January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution” (forthcoming 2023).

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Jen Patja

Jen Patja

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Jen Patja is the editor and producer of the Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.
Natalie K. Orpett

Natalie K. Orpett

@nkorpett
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Natalie Orpett is the executive editor of Lawfare and deputy general counsel of the Lawfare Institute. She was previously an attorney at the law firm Jenner & Block, where she focused on investigations and government controversies, and also maintained an active pro bono practice. She served as civilian counsel to a defendant in the Guantanamo Military Commissions for more than eight years. She also served as counsel to the National Security and Foreign Policy Legal Team of the Biden-Harris Transition Team.
Alan Z. Rozenshtein

Alan Z. Rozenshtein

@ARozenshtein
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Alan Z. Rozenshtein is an Associate Professor of Law at the University of Minnesota Law School, a senior editor at Lawfare, and a term member of the Council on Foreign Relations. Previously, he served as an Attorney Advisor with the Office of Law and Policy in the National Security Division of the U.S. Department of Justice and a Special Assistant United States Attorney in the U.S. Attorney's Office for the District of Maryland.
Jed Handelsman Shugerman

Jed Handelsman Shugerman

@jedshug
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Jed Handelsman Shugerman is a professor at Fordham University School of Law. He has a JD and a PhD in History from Yale. He published The People’s Courts: Pursuing Judicial Independence in America (2012), and is working on two related books on the history of executive power and prosecution: “The Imaginary Unitary Executive” and “The Rise of the Prosecutor Politicians.”

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