Just a couple of minutes after the Colorado Supreme Court ruled yesterday that the presidential frontrunner was ineligible to appear on the ballot, a giddy MSNBC anchor immediately started paging through the court’s opinion on-air. And after a little while, she stumbled on what I think is the single most important part of the decision. This is the portion of the ruling that isn’t about the technical definition of an “insurrection,” or about parsing whether a president is considered an “officer” of the United States within the meaning of the 14th Amendment. To be clear, as many legal experts have said, those are important aspects of the opinion, and I’ll get to them in a second.
For now, I’m referring instead to the section of the court’s opinion that addresses whether, under the First Amendment, Donald Trump can be considered a violent “insurrectionist” merely because of his political speech. This part of the ruling begins on page 116, and it’s particularly important because it applies to everyone. It doesn’t just affect presidential frontrunners and candidates for office. It has the potential to affect every American who engages in political speech of any kind, long after Donald Trump is gone.
Here’s how the MSNBC anchor covered this part of the opinion, live on-air last night:
“We’ve been talking for days if not weeks about Donald Trump trying to hide behind the First Amendment to give an excuse for what is otherwise going to be clear criminal conduct,” says the anchorwoman. And now, she’s relieved to report, Donald Trump can’t “hide behind” the First Amendment.
That’s how someone calling herself a journalist, at a major media outlet, is describing the single most important amendment we have in the Constitution. Now apparently, the First Amendment is just something that MSNBC’s political opponents like to “hide behind.” In MSNBC’s view, it’s a mere technicality designed to shield criminal conduct. That’s how the corporate media views the Constitution at this point. They see it as a temporary obstacle to imprisoning Joe Biden’s primary political opponent.
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Let’s get specific about what the Colorado Supreme Court said about the First Amendment, and why they’re claiming it doesn’t protect Donald Trump from this charge of “insurrection” under the insurrection clause of the 14th Amendment. These specifics matter because they highlight how easily this decision can be used to crush any political speech that the Left doesn’t approve of.
On page 123, the Colorado Supreme Court begins its explanation of why Donald Trump was supposedly inciting a violent insurrection on January 6, instead of engaging in lawful political speech. But they don’t start with anything Trump actually said on January 6. Instead, they go back several years. Quoting from the decision, which cites the district court: “At a February 2016 rally, [President] Trump told his supporters that in the ‘old days,’ a protester would be ‘carried out on a stretcher’ and that he would like to ‘punch him in the face.’ … In March 2016, President Trump responded to questions about his supporters’ violence by saying it was ‘very, very appropriate’ and ‘we need a little bit more of’ it. And during the 2020 election cycle, President Trump threatened to deploy ‘the Military’ to Minneapolis to shoot ‘looters’ amid protests over the police killing of George Floyd.'”
Again, these are a series of comments — taken out of context, by the way — that Donald Trump made long before January 6, 2021. In some cases, these comments occurred more than four years earlier. And they have nothing whatsoever to do with January 6, or voter fraud, or anything like that. But the Supreme Court of Colorado says that somehow, these comments are evidence that Donald Trump committed insurrection on January 6. They’re proof that he intended to incite violence on that day. How could that be? It’s like if a guy is charged with murder and the prosecutor brings up during the trial that he got a parking ticket five years earlier. What does that have to do with anything?
To square the circle, Colorado’sSupreme Court relies — and I’m not making this up — on the testimony of a sociology professor at Chapman University named Peter Simi. This random professor of sociology apparently convinced both the district court and the Supreme Court that Donald Trump knows how to, “deploy a shared coded language with his violent supporters.” And supposedly, Donald Trump’s statements from 2016 to 2020 are evidence that he deploys this code all the time — even though he didn’t, in fact, use the military to crush the BLM riots, or have any protesters beat up at his rallies. You’d think, if he was using violent coded language for years, that some violence would have resulted. But apparently not. This professor has discovered verbal invisible ink. The words that are written in the margins, that nobody can see but him, with his magical decoder ring. That’s what we’re supposed to believe.
The sociology professor testified that based on Donald Trump’s statements from 2016 to 2020, we can conclude that all his comments on January 6 — about “fighting” to preserve the country and so on — were really coded language designed to incite a mob to commit acts of violence at the Capitol. That’s the argument.
This is not simply a reach. This decision, if upheld, is the end of freedom of speech in this country — not just for Donald Trump, but for everyone. To arrive at its decision, the Colorado Supreme Court used past comments they didn’t like, in order to twist the meaning of what Donald Trump actually said on January 6.
If you remember, in his remarks on January 6, Donald Trump did not tell his supporters to commit any acts of violence, or any act of insurrection whatsoever. Instead, he specifically told his supporters to head to the Capitol and protest, “peacefully.” Watch:
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
~ President Donald J. Trump
1/6/2021
The leftist version of an "insurrection" and their basis for destroying the Constitution. pic.twitter.com/OfttK8HuQ0
— OutspokenSamantha (@Outspoken_Sam) December 20, 2023
We’re supposed to disregard the fact that Trump told his supporters to be peaceful on January 6, 2021, according to the Colorado Supreme Court, because he said some things they didn’t like back in 2016. Therefore, Trump’s address to the crowd at the Ellipse was really a coded message calling for violence.
In its opinion, the Colorado Supreme Court barely even acknowledges that Trump explicitly told his supporters to be peaceful on January 6. On page 127, they dismiss this as an “isolated reference” that doesn’t neutralize everything unpleasant that Donald Trump has ever said. Therefore, even though he explicitly called for peace, we can just ignore that, and conclude he was really calling for the violent overthrow of the federal government. See how this works? They’re taking Donald Trump’s explicit call for peace, and discarding it out of hand. At the same time, they’re accusing Donald Trump of making implicit calls for violence, going back several years, and concluding that it amounts to an “insurrection” within the meaning of the 14th Amendment.
To reach the conclusion, as the dissenting opinion notes, the Colorado Supreme Court never afforded Donald Trump any due process concerning the determination of whether an “insurrection” had even occurred at all. The Colorado Supreme Court didn’t bother with the inconvenient fact that there’s a federal insurrection law on the books, and Donald Trump has never even been charged with violating it.
In case your memory is a bit foggy, let me remind you that Donald Trump did not lead an army to overthrow the government, or even to secede from it. He didn’t form his own country, or announce his intent to do so. Instead, Trump was trying to maintain the status quo, by telling Mike Pence to reject electors he believed were fraudulent. Trump was the chief executive of the government on January 6, and he wanted to remain the head of the government. As legal analyst Nick Rekeita pointed out last night on his YouTube channel, a government can’t lead an “insurrection” against itself. Or if it can, there’s precisely zero evidence that the 14th Amendment was ever intended to apply to an unprecedented situation like that.
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So to recap, the Colorado Supreme Court didn’t have a conviction against Donald Trump for insurrection, nor did they have any reason to think the 14th Amendment applied to what Donald Trump did. But they decided that didn’t matter. They just unilaterally decided on their own meaning of the word “insurrection,” and went with it. By the same logic, Joe Biden and Kamala Harris could be disqualified from office for inciting violence all across the country in 2020 — including riots at a federal courthouse in Portland and at the White House. We can now have an endless tit-for-tat of political disqualifications, in various courts, instead of actual elections. That’s according to the logic from the Colorado Supreme Court.
I could go on about all the other problems with this ruling. Other commentators — and several federal courts — have already pointed out that the president, under the 14th Amendment, isn’t even capable of being barred from the ballot as an “insurrectionist.” The Constitution spells out exactly who can be barred for committing “insurrection,” and the president isn’t named. Senators are named, representatives are named, electors for president and vice president are named — but presidents aren’t.
I could also go into the various political ramifications of this decision. Yes, this particular ruling is almost certainly going to be overturned by the U.S. Supreme Court. (In fact the ruling is already stayed, pending the Supreme Court’s review). And yes, it’s a clearly partisan document. Every single member of the Colorado Supreme Court was appointed by a Democrat governor — and even then, the decision in this case was still 4-3.
There’s also the whole absurdity of every single state Supreme Court separately making a decision that clearly has implications for a national presidential election. It’s not remotely clear how Colorado has jurisdiction to do that, according to the text of the 14th Amendment. John Bolton — not exactly a Trump ally — outlined this problem on CNN last night:
John Bolton blows up CNN.
'Supreme Court will overturn the Colorado decision on Trump.'pic.twitter.com/UspoymzuAt
— Citizen Free Press (@CitizenFreePres) December 20, 2023
You can make a lot of other points too about the limited impact this decision will have, regardless of what the U.S. Supreme Court does. You can note that Colorado is a state that obviously isn’t going to determine the outcome of the next election. If anything, this decision will probably help Donald Trump in the polls. And already, Colorado Republicans have suggested that they’ll simply hold their own caucus and submit the results to Congress, which — if it’s Republican-controlled — can simply reject any Biden electors from the state, on the grounds that no fair election took place.
In other words, it’s possible that this decision will actually cost Joe Biden electoral votes from Colorado, a state that he’s virtually guaranteed to win otherwise.
But even if this Colorado ruling is overturned tomorrow, and even if no other state Supreme Court issues a ruling like this, the fact remains that this decision out of Colorado highlights a much deeper issue that isn’t going away. Journalists and leading political figures in this country are now openly saying that their political opponents should not have a say in elections. They’ve been building to this point for a while, of course. They’ve been imprisoning meme-makers and raiding the homes of pro-lifers and investigating parents for criticizing trans propaganda in schools. But in the wake of this Colorado decision, it’s now explicit. Here was Congressman Jamie Raskin (D-MD) yesterday for example:
Democrat Rep. Jamie Raskin — longtime conspiracy theorist and Election Denier — immediately went on MSNBC to celebrate the decision by left-wing judges in Colorado to deny Americans a free and fair election pic.twitter.com/76n5hc7lNa
— RNC Research (@RNCResearch) December 20, 2023
“Everyone should agree that this is a question of law that should be settled by the courts.” Well actually, no. Four judges selected by Democrat governors should not, in fact, settle the issue of whether American citizens can vote for the clear frontrunner in a presidential election. It’s hard to believe that anyone with any amount of shame would even suggest something like that.
But there’s a sitting U.S. congressman, explaining that to uphold the “law,” you need to agree with him. Once again, you’re being told that in the name of the “law,” you should accept a decision that shocks the conscience of any reasonable person. You’re told that the same Constitution that explicitly guarantees your right to freedom of speech, in reality, restricts it.
From a historical perspective, this is nothing new. You might remember that the USSR had a Constitution, complete with guarantees for freedom of speech and political expression. It didn’t work out too well for them. That’s because the Soviets discovered that words in a Constitution aren’t actually self-enforcing. You need a population, and elected officials, who actually respect the document. If they don’t, then it’s trivially easy for them to twist the words in the Constitution around, to the point that they become meaningless.
That was Justice Scalia’s famous line about how the Constitution is a “parchment guarantee.” At the end of the day, a Constitution is just words on paper. Those words can be manipulated and discarded in an instant.
That’s what just happened in Colorado. Four activists on a court and a Chapman sociology professor tried to rewrite the First Amendment — not just for Donald Trump, but for you and for me.
If they’re allowed to succeed, then they will have dismantled the foundational legal principle of this country, which is the freedom of speech. They will have ensured an unprecedented level of political violence and discord. In short, they will — by their own definition — be guilty of insurrection. And they will have no reason to complain when they inevitably pay a very heavy price for it.