In the two weeks since Special Counsel Jack Smith indicted former President Donald Trump for his attempts to overturn the 2020 presidential election, the outlines of Trump’s trial strategy have taken shape. Trump has claimed that the indictment seeks to take away his “FIRST AMENDMENT RIGHTS.” His lawyer, John Lauro, is frantically trying to position his client as a hero of “free speech and political advocacy,” arguing that Trump “had every right to advocate for his position” about the presidential election.
Many high-profile Republicans and conservatives are also coalescing around the First Amendment as their main avenue of attack on the indictment. Elise Stefanik, the fourth-ranking member of the House GOP, has claimed that “President Trump had every right under the First Amendment to correctly raise concerns about election integrity in 2020,” and several prominent Senate Republicans have made similar statements. National Review, the conservative magazine, has accused Smith of trying to “criminalize protected political speech.” And the law professor and legal commentator Jonathan Turley predicts that the indictment will run into the “constitutional problem of criminalizing political lies.”
Even some of Trump’s harsher critics are buying into his First Amendment argument. Former Representative Justin Amash, who heroically stood up to Trump and his allies (and almost certainly ended his political career because of it), opposes the indictment because it is “treating politicians’ false beliefs regarding political or constitutional matters, even when they’re obviously wrong, as criminal offenses.” And in the press, this idea has already begun to color how the case is being described. The New York Times, for example, has said the case sets up a “clash of lies versus free speech.”
But this entire framing is mistaken. The prosecution of Trump for his attempt to overthrow the 2020 election does not threaten the First Amendment, not even a little bit.
The First Amendment prohibits the government from “abridging the freedom of speech.” One common source of confusion is that, in defining the word speech for First Amendment purposes, the law treats it as a term of art, whose legal meaning is both broader and narrower than its everyday meaning. For example, some activities that one might not call “speech” in ordinary conversation—making corporate political contributions, designing a wedding website, or playing a violent video game—count as speech for purposes of First Amendment protection. At the same time, some categories of speech have long been categorically excluded from the First Amendment’s protection. For example, the government isn’t prohibited from punishing someone for making intentional “true threats” of physical violence. Nor is defamation protected by the First Amendment, even though it often comes in the form of literal—that is, spoken—speech.
The reason that some categories of speech are constitutionally unprotected is because they don’t contribute to the purposes of the First Amendment: furthering a society in which individuals can learn and express themselves, develop and gain knowledge, and build a flourishing democratic system. Articulating the precise contours of those categories is one of the main tasks of First Amendment law.
The crimes that Trump is charged with in the January 6 indictment—obstruction, fraud, and conspiracy—fall squarely into the category of speech, in the ordinary sense of the word, that is not protected by the First Amendment. (The same is true for the racketeering, solicitation, and conspiracy charges that Fani Willis, the district attorney in Fulton County, Georgia, has brought against Trump for his attempt to interfere with Georgia’s presidential-election results.) This should not be controversial. After all, tax cheats, witness tamperers, and financial fraudsters all commit their crimes by communicating with others, and many go to prison on the basis of that speech. Many violent criminals also act through speech—think of a mob boss ordering a hit or a group of bank robbers planning its next heist. None of this speech furthers the values of the First Amendment, and so it does not deserve constitutional protection.
The First Amendment does impose some important limits on criminal prosecutions. As Smith conceded at the start of the indictment, Trump had a First Amendment right “to speak publicly about the election and to claim, even falsely, that there had been outcome-determinative fraud during the election and that he had won.” Accordingly, a prosecution based primarily on Trump’s most inflammatory lies at the “Stop the Steal” rally—lies that arguably helped set off the attack on the Capitol—would face real First Amendment hurdles.
But Trump hasn’t been charged for debating legal theories with his advisers or for publicly spreading lies. He’s charged for repeatedly trying, alone and with others, to defraud the government by coordinating “alternate” (or fake) slates of presidential electors, to intimidate public officials including former Vice President Mike Pence, to interfere with Congress’s core functions by telling state governments to throw out their electoral results, and to ultimately prevent the American public’s votes from being fairly counted.
Where the indictment does call out Trump’s public statements and the havoc they caused, it is careful to connect them to Trump’s broader criminal effort, not to hold them out for punishment in and of themselves. For example, the indictment highlights how, in his January 6 “Stop the Steal” speech, Trump threateningly urged Pence to throw out Biden electors, but it does so in the context of Trump’s months-long behind-the-scenes pressure campaign against Pence.
Some have criticized the indictment for taking a position on the predicate to all of Trump’s actions—whether the 2020 election was stolen—and concluding that Trump in fact lost, fair and square. But far from constituting an Orwellian attempt to set up “the federal government as the arbiter of truth,” this willingness to recognize reality is exactly what we should expect from our government, both in criminal trials and as a general matter. And despite what peddlers of “alternative facts” would have us believe, Trump really either did or, as the government will argue, didn’t have a good-faith belief in his lies and his campaign to overturn the results. If we’re too scared to let the government make its case—in open court and beyond a reasonable doubt—then there’s little point to having criminal laws at all.
Many risks and uncertainties still face Smith in his prosecution of Trump. In addition to working through a variety of legal issues relating to the applicable criminal statutes, Smith will have to establish Trump’s state of mind—always a tricky proposition in a criminal trial, especially one with a defendant as slippery as Trump. And, legal issues aside, the prosecution of a former president and current presidential front-runner will put immense strains on the United States’ political and social order.
But to criticize the prosecution as attacking the First Amendment not only is wrong as a matter of law but betrays the role that the Constitution’s commitment to free speech plays in protecting a functioning democracy. The First Amendment shouldn’t be twisted to destroy the very thing it seeks to defend.