Trump’s Legal Team Contends First Amendment Shields Him from 14th Amendment ‘Insurrection’ Challenges Affecting His Candidacy

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Lawyers representing former President Donald Trump are asserting that efforts to disqualify him from running for office in 2024 under an infrequently invoked “insurrection” provision of the Constitution contravene his First Amendment rights to free speech.

This legal stance was articulated in documents submitted to a Colorado court on Monday and is considered among the most consequential in an array of legal disputes aimed at Trump’s potential candidacy. These disputes invoke the Civil War-era 14th Amendment clause, and are grounded on Trump’s actions to contest his 2020 electoral defeat to Joe Biden, and his involvement leading up to the January 6, 2021, assault on the U.S. Capitol.

In the documents, attorney Geoffrey Blue stated, “Petitioners do not claim that President Trump partook in any activities other than those of speaking or abstaining from speech, to substantiate their allegation that he was involved in the so-called insurrection.”

Furthermore, the legal team posits that the 14th Amendment clause is inapplicable to Trump as it is designed to penalize those who “engaged in insurrection or rebellion,” not merely those who ‘instigated’ such actions, according to Blue.

Trump’s attorneys also argue for dismissal on the grounds that Trump is not formally a candidate as defined by Colorado’s electoral statutes, which they assert are not intended to resolve constitutional issues.

The case, filed under Colorado’s anti-SLAPP statute—which protects individuals from litigations meant to harass them for activities safeguarded by the First Amendment—will be the inaugural 14th Amendment challenge to be examined in a public court. The filing occurred late last week and was made publicly available by the court on Monday.

Denver District Judge Sarah B. Wallace has scheduled hearings to consider the motion on October 13, with a separate hearing concerning the constitutional questions set for October 30.

Regardless of Judge Wallace’s decision, it is highly probable that the matter will escalate to the U.S. Supreme Court, which has yet to rule on a case involving this specific 14th Amendment clause, ratified in 1868, three years subsequent to the conclusion of the Civil War.

Distinguishing this challenge is the fact that it is spearheaded by Citizens for Responsibility and Ethics in Washington, an organization with substantial legal capabilities. Another organization advocating similar views, Free Speech For The People, has initiated a parallel challenge in Minnesota, slated for hearing on November 2.

The amendment’s Section Three disqualifies from office anyone who has sworn an oath to uphold the Constitution but subsequently “engaged” in “insurrection or rebellion” against it. This provision was originally intended to prevent former Confederate leaders from attaining public office.

Trump’s assertion that his actions are protected under the First Amendment parallels his defense in criminal cases related to the January 6 events. Prosecutors and some legal scholars have pointed out that Trump’s conduct exceeds the boundaries of free speech, encompassing activities like attempting to assemble fraudulent elector slates that could have been recognized by Congress to reinstate him as President.

Recent developments in the criminal cases have also had an impact on the Colorado 14th Amendment challenge. Judge Wallace has issued an order to prohibit threats and intimidation in this case, after noting that Trump has targeted attorneys and witnesses involved in the criminal proceedings against him.

Frequently Asked Questions (FAQs) about 14th Amendment ‘insurrection’ challenges

More about 14th Amendment ‘insurrection’ challenges

• 14th Amendment of the U.S. Constitution
• First Amendment of the U.S. Constitution
• Colorado’s Anti-SLAPP Law
• Citizens for Responsibility and Ethics in Washington (CREW)
• U.S. Supreme Court Cases on First Amendment
• Overview of Legal Challenges against Donald Trump’s Candidacy
• Legal Interpretations of Section Three of the 14th Amendment