The United States Supreme Court will hear arguments this week on whether to uphold the Colorado Supreme Court decision barring Trump from the 2024 Colorado primary ballot. A UNM Law professor is among a group of First Amendment scholars arguing the decision should be upheld.

Maryam Ahranjani

Maryam Ahranjani, the Ron and Susan Friedman Professor of Law and an expert in constitutional rights, criminal law and procedure, and education law, joined First Amendment scholars and attorneys from around the country in filing an amicus brief last week.

“The brief asserts two main points: that the Supreme Court should reject Trump’s argument that excluding him from the Colorado primary ballot violates his free speech rights, and it should also reject the political-party-related amici James Madison Center’s argument that Trump’s disqualification violates its right of association.” 

The scholars argued that the First Amendment’s speech protections do not supersede the narrow scope of Section 3 of the Fourteenth Amendment, which states that people who have taken a Constitutional oath and then participated in an insurrection cannot hold office again, and that arguing that it does will “strip courts of their ability to view speech in context when determining whether that speech amounts to engagement in insurrection.”

Section 3 of the Fourteenth Amendment:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

“When provisions of the Constitution potentially conflict with one another, traditional constitutional analysis involves harmonization; in other words, no one provision automatically supersedes another.” 

The Fourteenth Amendment was ratified after the Civil War to prevent similar conflicts in the future from reaching the political arena, according to the brief. The amici encourage the Court to harmonize Section 3 of the Fourteenth Amendment with the First Amendment and give “effect to each whenever possible,” rather than allow the First Amendment to supersede or obliterate Section 3, and that a newer, more specific amendment should be given precedence when harmony is not possible.

The amici cited the 1969 Brandenburg v. Ohio decision, which states that speech “directed to inciting or producing imminent lawless action” is not protected by the First Amendment, and argued that speech should be reviewed in the context of how it was delivered, surrounding events and the intended audience.”

Led by Counsel for Amici Steven A. Hirsch, in addition to Ahranjani, the team of luminary scholars includes  Floyd Abrams, Bruce Ackerman, Erwin Chemerinsky, Alan Chen, Kent Greenfield, Martha Minow and Geoffrey R. Stone. The same team filed an amicus brief in the related Colorado Supreme Court case, Anderson v. Griswold, in November.

Ahranjani’s involvement in these constitutional law cases began when she was approached by Citizens for Responsibility and Ethics in Washington (CREW) to participate in an amicus brief in the Couy Griffin case last summer. In that case, a New Mexico judge ruled the then-Otero County Commissioner must be removed from office for his involvement in the insurrection. She has co-authored two Op-eds about the Disqualification Clause with Donald K. Sherman, CREW’s Executive Vice President and Chief Counsel.

The brief cited 32 court cases along with several Constitutional amendments and articles, U.S. statutes, Supreme Court rulings and other authorities.

Read the amicus brief here. Oral arguments in the Supreme Court case are scheduled for Feb. 8.