Former President Donald Trump’s attorneys are arguing that an attempt to prevent him from appearing on the 2024 ballot under the “insurrection” clause of the Constitution should be dismissed as it violates his freedom of speech. The argument was made in a filing posted by a Colorado court, where challenges to Trump’s candidacy under the 14th Amendment’s Civil War-era clause are being brought based on his efforts to overturn his 2020 loss and his role in the January 6th attack on the Capitol. Trump’s lawyers claim that he only engaged in speech or refusal to speak, not an actual insurrection or rebellion, and therefore should not be subject to the clause.
In addition to his freedom of speech defense, Trump’s lawyers contend that the clause should not apply to him because it refers to one who “engaged in insurrection or rebellion,” whereas Trump only allegedly instigated such actions. They also argue that the challenge should be dismissed because he is not yet considered a candidate under Colorado election law, which they believe is not meant to resolve constitutional disputes. The motion, filed under Colorado’s anti-SLAPP law, is the first of the 14th Amendment challenges to be considered in court and is expected to eventually reach the Supreme Court.
The challenge in Colorado is notable as it was filed by the organization Citizens for Responsibility and Ethics in Washington, marking the first such challenge brought by a group with significant legal resources. Another liberal group, Free Speech for the People, has filed a similar challenge in Minnesota. The 14th Amendment’s Section Three, which bars individuals who engaged in “insurrection or rebellion” from holding office, was initially intended to prevent former Confederate officials from assuming positions of power. Trump’s defense of his actions on January 6th as protected speech mirrors his defense in criminal cases related to the attack, with prosecutors and legal experts arguing that his offenses extend beyond speech to actual acts to subvert the election results.