Former President Donald Trump never stops talking. He has an unusual habit of saying whatever is on his mind, no matter how factually inaccurate, off-color, or otherwise counterproductive. This has endeared him to a certain portion of Americans and largely alienated everyone else. Now Trumpworld is still claiming that the Justice Department is somehow violating Trump’s First Amendment rights by indicting him this week for conspiring to overthrow the 2020 election.
“This is an attack on free speech and political advocacy,” John Lauro, one of Trump’s lawyers, told CNN earlier this week. “And there’s nothing that’s more protected under the First Amendment than political speech.” Rudy Giuliani waved around a copy of the indictment on Newsmax and said that “this one will be your legacy, violating the right of free speech of an American citizen,” referring to special counsel Jack Smith. “President Trump had every right under the First Amendment to correctly raise concerns about election integrity in 2020,” claimed New York Representative Elise Stefanik, a leading House Republican.
In the indictment on Tuesday, federal prosecutors made clear that they were distinguishing between protected First Amendment activities and criminal conduct. “The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won,” the indictment said in its third paragraph. “He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures.”
“Indeed, in many cases, the Defendant did pursue these methods of contesting the election results,” the indictment continued. “His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful. Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results.” These latter actions are what have earned Trump four charges for conspiring to defraud the United States and prevent people’s votes from counting.
To call the president’s defenders’ legal theories spurious would be an understatement. Trumpworld’s unbounded view of free speech, if applied consistently, would eliminate most state and federal crimes. After all, perjury is speech. (That did not stop independent counsel Ken Starr from investigating Bill Clinton for it or the House for impeaching him over it.) Bribery is speech. Many types of fraud are speech. Insider trading is speech. Identity theft is speech. Forging checks is speech. Telling state secrets to foreign governments is speech. The First Amendment makes it impossible for prosecutors to charge Americans with things like lèse-majesté, blasphemy, and heresy. It also narrows the government’s ability to prosecute speech unless in direct furtherance of a crime. It is not a license for anarchy.
I am not the only person to make this point. Former Attorney General Bill Barr, who consistently advanced Trump’s legal interests while serving in his administration before he stepped aside after the 2020 election, noted during a CNN appearance this week that the free speech defense didn’t hold water. “As the indictment says, they’re not attacking his First Amendment rights,” he explained. “He can say whatever he wants. He can even lie. He can tell people that the election was stolen when he knew better. But that does not protect you from entering into a conspiracy.”
Earlier this week, I mentioned the emerging free speech defense only in passing because it wasn’t worth mentioning alongside actual legal arguments. That’s in no small part because the free speech claims made by Trump’s defenders are not an actual legal or philosophical stance. None of the people advocating it truly want it to be applied consistently. They simply want Donald Trump to be acquitted for organizing a coup attempt. They know that most Americans both oppose coup attempts and do not think kindly of people who try to carry them out. But Trump’s defenders also know that those same Americans love the First Amendment, and so they have often tried to cover his misdeeds behind its broad protections. They now hope a few potential D.C. jurors might be receptive to this line of reasoning.
This is not a novel tactic on their part. Perhaps the most salient instance came two years ago when Trump was impeached for incitement to insurrection. His defense team during his Senate trial argued that Trump’s address on the Ellipse shortly before the attack on the Capitol, as well as his other statements encouraging supporters to come to D.C., were protected by the First Amendment. “The attempt of the House to transmute Mr. Trump’s speech—core free speech under the First Amendment—into an impeachable offense cannot be supported, and convicting him would violate the very Constitution the Senate swears to uphold,” they claimed. The American legal community, including some of the foremost First Amendment scholars in the country, strongly disagreed.
I doubt the free speech claim was a serious factor in Republicans’ decision to acquit him; personal and partisan considerations likely trumped everything else. But it may have affected special counsel Jack Smith’s strategy in this case. If anything, he and his fellow prosecutors appear to have avoided charging Trump for potential crimes that could raise more legitimate First Amendment questions. The House January 6 committee, for example, had recommended that the former president be charged under 18 U.S.C. 2384. That provision makes it a crime whenever someone “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”
While Trump’s moral culpability for the attack on the Capitol is obvious, his criminal culpability for inciting an insurrection is less straightforward. “It would have faced some potentially tricky First Amendment issues, to the extent it would have relied on Mr. Trump’s speech at the Ellipse on Jan. 6 to allege that he incited the riot,” Randall Eliason, a George Washington University law professor and former federal prosecutor, wrote earlier this week. “I believe those issues could be overcome, but the free speech battles over that charge would have been time-consuming and distracting because the speech could be easily characterized as a political rally.”
If Trump and his allies were particularly zealous advocates of free speech in general, their invocation of the First Amendment here might be slightly harder to dismiss out of hand. But they are not. Trump himself has often mused about “opening up” libel laws so Americans can more easily sue each other for defamation, which would help wealthy and well-connected figures like himself suppress their critics by threatening them with lawsuits. He also pressured social media companies for what he described as suppressing conservative voices, essentially trying to tell them what they were allowed to host on their own services.
The Atlantic’s Adam Serwer has described post-Trump conservatism’s approach to free speech as “the right to post.” Under the guise of preventing censorship, which is distasteful to the American mind, conservative lawmakers and judges have sought to compel companies like Facebook and Twitter into hosting political speech against their will. Right-wing businessman Elon Musk claimed he was a “free-speech absolutist” when purchasing Twitter last year; in practice, that has meant boosting right-wing influencers whom he likes while suppressing everyone else. This is constitutionally valid but philosophically bankrupt. For these nouveau First Amendment champions, Serwer observed, “free speech is when they can say what they want, and when you can say what they want.”
Even the most fervent good-faith defenders of free speech recognize that there are clear limits to it. January 6 was one of them. Trump’s supposed “political advocacy” was not an idle inquiry into election results or ballot-counting methods. It was a direct effort to overthrow American democracy and invalidate the electoral voices of a clear majority of Americans. One of his co-conspirators even mused about using the Insurrection Act of 1807 to violently suppress any subsequent protests. The First Amendment protects all sorts of sins. Organizing a coup d’état is not one of them.