Prof. Rozenshtein Co-Writes Article in The Atlantic on January 6 Committee's Vote and Potential First Amendment Troubles with Prosecuting Trump

Professor Alan Rozenshtein recently published an article in The Atlantic, with co-writer Jed Shugerman, on the House January 6 Committee's unanimous vote to recommend that former President Donald Trump be criminally prosecute for charges including conspiracy, obstruction, and insurrection. In the article, Prof. Rozenshtein & Shugerman argue that the DOJ will face difficulty proving that Trump's speech on January 6th, 2021 is not protected by the First Amendment. While they believe the government can prosecute Trump, the potential to criminalize legitimate political expression exists. They elaborate that "Specifically, in cases where a speaker plausibly but ambiguously advocates lawlessness, the government should be required to show that the defendant took additional “overt acts,” beyond making the speech itself, that furthered violence. (We explain this balanced approach for prosecuting political speech—whether for incitement, obstruction, fraud, or insurrection—in greater detail in a forthcoming law-journal article.)"