The Senate will now decide whether President Donald Trump should be convicted on the House charges of incitement of insurrection, and there has also been discussion of potential criminal charges against Trump after he leaves office, arising from the same conduct. These would include federal crimes, such as advocating the overthrow of government, rebellion and insurrection.
But it would be difficult to convict Trump in a conventional criminal trial for his speech, even if the Senate convicts him. And if the Senate follows First Amendment precedent, he could escape conviction there, too.
There’s no question that freedom of speech is not absolute. The First Amendment does not sanction incitement to riot. When an immediate threat to public safety, peace or order appears, the power of the government to punish speech is obvious.
On the other hand, the free-speech clause of the First Amendment protects a wide variety of speech even if listeners may consider it deeply offensive. Speech is not…
— to www.nbcnews.com