WASHINGTON — After Donald Trump was indicted on charges he tried to steal the 2020 election, his attorneys argued the former president is protected by the the First Amendment’s guarantees of free speech for all Americans.
Legal experts say that claim may not hold up in court.
The indictment against Trump alleges he knowingly used false election fraud claims to influence election officials. He’s also accused of trying to impede a congressional proceeding on Jan. 6, 2021, when the 2020 election results were being certified, and working with co-conspirators to recruit fake electors.
After he was indicted, Trump alleged in a Truth Social post that “The Radical Left wants to Criminalize Free Speech!” John Lauro, one of Trump’s attorneys in the case, also argued on the “Today” show Trump had the right to raise questions about election integrity under the First Amendment.
Trump’s indictment quickly drew ire from Republicans in Congress, including Sen. Tom Cotton, R-Ark., and Rep. Elise Stefanik, R-N.Y., who also accused prosecutors of targeting Trump’s freedom of speech.
But the indictment notes that Trump, like other Americans, had the right to “speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud.” It’s core argument is that Trump knowingly spread false claims to advance a conspiracy to take the election from now-President Joe Biden.
Trump “cannot be defended by arguing that his statements were just free speech…Trump’s lawyer is trying to shift attention from what Trump is actually charged with − a tactic that is more political than legal,” Joan Meyer, a partner at the law firm Thompson Hine, told USA TODAY.
Will Donald Trump’s First Amendment defense work?
David Super, a constitutional law expert at Georgetown University, said the First Amendment isn’t likely to play a significant role in Trump’s trial. He explained to USA TODAY the indictment is very clear that Trump isn’t being charged solely over comments he made about the 2020 election.
“To the extent his public statements are involved in the indictment, it is only because those were allegedly made to advance his criminal conspiracy,” Super said. “Many forms of expression can become unlawful if undertaken for corrupt purposes. I am free to write ‘Vote for Trump,’ but its expressive content does not keep it from being illegal if I spray-paint it onto your car.”
Likewise, if Trump had merely given a speech criticizing former Vice President Mike Pence, he would not be facing charges, Super said. But the indictment alleges he pressured Pence to reject Biden’s electoral votes − which Pence refused to do.
“Asking someone to commit a crime is conspiracy, and criminal conspiracy is not protected by the First Amendment,” Super said.
Marc Scholl, who formerly served as a prosecutor in New York, agreed the criminal charges against Trump, if proved in court, would not violate the First Amendment.
“As alleged in the indictment, Trump did not simply state an opinion or ‘aspirationally’ ask Pence to violate the law,” Scholl said. “Trump and others agreed to a plan to interfere in the transfer of power, and steps were taken to manufacture false electors. And Trump told the co-conspirators that he would deal with getting Pence to participate.”
While the indictment cites statements made by Trump, the use of defendants’ statements are routine in criminal law, according to Gregory Magarian, a law professor at the Washington University in St. Louis, and it doesn’t necessarily mean Trump was charged over his words alone.
How will Trump and his team argue his case?
Meyer explained that Trump and his lawyers will likely argue he really believed he won the 2020 election.
She added they could say “that certain political advisors and lawyers were supporting that view, and he was relying on their advice, and that he was merely urging his vice president to delay the proceedings so that these matters could be investigated.” She said he could further argue his social media posts and speeches falsely claiming there was widespread election fraud in 2020 were just reflecting his sincere belief.
Scholl said Trump’s attorneys have claimed that all Trump did was petition the government − a right under the First Amendment − to delay certification of the 2020 election by “asking” Pence to delay the counting of electoral votes – a notion that Pence had rejected.
“And, they have suggested that ‘asking’ is not the same as commanding, directing, ordering, demanding, etc.,” Scholl said.
The crucial point in the case will be whether Trump spread false claims exclusively for legal means, Super said, such as winning public support, or whether he was doing it as part of a plan to overturn the results of the election.
What should I know about the First Amendment?
The First Amendment guarantees five specific protections, including for religion, speech, the press, assembly and to “petition the government.”
But the First Amendment doesn’t protect all forms of speech. For example, if you make an illegal contract, that’s not protected.
“If that were not the case, then most prosecutions against organized crime would be impossible, as they tend to rely on mob bosses verbally asking that this or that crime be committed,” Super said.
Trump’s 2020 election indictment is unprecedented in many ways, but here’s what to know about previous landmark First Amendment cases and how they’ve played out in court.
In one case, Omar Abdel-Rahman, commonly known as the “Blind Sheikh” was charged in the 1990s with for promoting terrorism, Meyer said. He defended violent, anti-American comments by arguing they were protected under the First Amendment, but the bid was unsuccessful in court. He was convicted and sent to prison.
But other cases have played out differently. For example, in the 1969 case Brandenburg v Ohio, the Supreme Court held that a Ku Klux Klan leader’s racist comments were protected, even when he talked about exacting vengeance in the future, Meyer said.
There’s also the case of Julian Bond, a civil rights activist who won a special election to the Georgia legislature in 1965, according to Jonathan Entin, a law professor at Case Western Reserve.
Bond endorsed a press release that criticized the Vietnam War, among other statements, and the legislature refused to seat him, Entin said. Bond took his case to the Supreme Court in 1966, which ruled in his favor because his statements did not incite anyone to violate the draft law or to engage in any other unlawful activity.
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