Donald Trump's First Amendment defense: Can it work?
Former President Donald Trump acknowledges supporters at a campaign rally Tuesday in Windham, N.H. Credit: AP / Robert F. Bukaty
WASHINGTON — As former President Donald Trump mounts his defense against federal charges that he conspired to overturn the 2020 election in part by knowingly spreading false information on social media and in speeches, he and his lawyers are asserting the case directly targets his First Amendment rights to free speech.
“What they would have to show is all of that speech was not entitled to First Amendment protection. They’ll never be able to do it,” Trump’s attorney John Lauro said on NBC’s Today Show on Aug. 2.
Constitutional law scholars and legal analysts say the First Amendment argument could stir debate in the court of public opinion, but is not likely to win in federal court.
“It’s an attempt to muddy the waters with an issue that is a constitutional right that is fundamental to Americans and to our identity, but that very few Americans really understand,” James Sample, a constitutional law professor at Hofstra University’s School of Law, said in an interview. “The law has all kinds of instances in which speech is criminal activity.”
Sample noted fraud, murder for hire, insider training and promotion of terrorism are among crimes that have “a speech element.”
“The fact that there is a speech component to criminal activity does not insulate the individual from being prosecuted for the criminal activity,” Sample said.
On Friday, Trump’s lawyers appeared in U.S. District Court in Washington for a pretrial hearing. They unsuccessfully challenged a protective order submitted by federal prosecutors limiting what he can disclose publicly about evidence collected in the case that will be provided to his defense team.
U.S. District Judge Tanya Chutkan warned Trump and his legal team “to take special care in your public statements about this case,” saying she would “take whatever measures are necessary to safeguard the integrity of these proceedings.”
At a campaign stop in New Hampshire last week Trump had vowed to continue speaking about his case: “I will talk about it. I will. They’re not taking away my First Amendment rights.”
The latest indictment against the former president is expected to generate more questions and debate about the First Amendment. Here is a look at some of the questions in play:
The 45-page indictment unsealed Aug. 1 says Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud.”
But in laying out the case against Trump, Special Counsel Jack Smith argued the former president “knowingly” spread false assertions of widespread election fraud, even as he was told by Republican state officials, Department of Justice investigators and top intelligence officials that none of the claims had panned out. The indictment alleges Trump continued to spread false information as part of a conspiracy aimed at overturning his loss to Democrat Joe Biden in the 2020 election.
Trump “widely disseminated his false claims of election fraud for months, despite the fact that he knew, and in many cases had been informed directly that they were not true,” the indictment says. “The Defendant’s knowingly false statements were integral to his criminal plans to defeat the federal government function … ”
Lauro, a Tampa, Florida-based criminal defense attorney, has been making the rounds on television to lay out Trump’s defense. Lauro argues Trump’s statements leading up to the Jan. 6, 2021, attack on the U.S. Capitol constituted politically protected speech, and says Smith will “never be able to prove beyond a reasonable doubt that President Trump had corrupt or criminal intent.”
Trump “believed in his heart of hearts that he had won that election and as any American citizen he had a right to speak out under the First Amendment,” Lauro said on NBC’s “Meet the Press,” on Aug. 6.
Trump, in Windham, New Hampshire, on Tuesday, appeared to address Smith’s allegations that Trump was aware he had lost the election, and there was no merit to his claims of rampant voter fraud.
“There was never a second of any day that I didn’t believe that it was a rigged election,” Trump told rallygoers.
Legal experts agree widely that Trump’s First Amendment line of defense falls short of addressing the underlying charges he conspired to overturn the election through a pressure campaign that included formation of fake slates of electors to cast Electoral College votes for him.
Former U.S. Attorney General William Barr told CNN this month the First Amendment did not protect Trump from charges in the indictment.
“As the indictment says, they are not attacking his First Amendment right. He can say whatever he wants, he can even lie. He can even tell people that the election was stolen when he knew better,” Barr said. “But that does not protect you from entering into a conspiracy.”
Gregory Magarian, a constitutional law professor at Washington University School of Law in St Louis, said in an interview there are “all kinds of criminal behavior that take the form of speech. You can start with blackmail or perjury or trying to hire somebody to kill someone you don’t like — all of those things are crimes and all those things are crimes that take the form of speech.”
Magarian continued: “So, yes, speech is presumptively protected by the First Amendment but there are all kinds of circumstances, going back to the famous shouting ‘fire’ in a crowded movie theater — there are all kinds of ways in which speech can be unlawful.”
Magarian said while he believed the Trump’s team in news media interviews has presented a “specious argument,” it’s possible that once an actual trial starts the former president’s lawyers can find a way to build a defense around the First Amendment.
“We don’t know what all the evidence is going to be,” Magarian said. “So I’m not going to sit here and say that it is impossible that at some point during the trial, there could be a serious First Amendment argument about the way the prosecution is trying to use something.”
Kevin O’Brien, a former prosecutor in the U.S. Attorney’s Office for the Southern District of New York, said Trump’s legal team likely has been “testing the waters” by floating lines of defense in news media interviews, to see how the arguments are received.
“Trump is, whatever else you to think about him, very sensitive and astute when it comes to public opinion, and this is probably another one of those instances where he’s trying to float ideas or issues that he could run with,” said O’Brien, a founding partner of the white collar defense firm Ford O’Brien Landy LLP.
“A trial date hasn’t been set yet, but it’s going to be a long way off, so he’s looking for something to fill the airwaves between now and then,” O’Brien said.
WASHINGTON — As former President Donald Trump mounts his defense against federal charges that he conspired to overturn the 2020 election in part by knowingly spreading false information on social media and in speeches, he and his lawyers are asserting the case directly targets his First Amendment rights to free speech.
“What they would have to show is all of that speech was not entitled to First Amendment protection. They’ll never be able to do it,” Trump’s attorney John Lauro said on NBC’s Today Show on Aug. 2.
Constitutional law scholars and legal analysts say the First Amendment argument could stir debate in the court of public opinion, but is not likely to win in federal court.
“It’s an attempt to muddy the waters with an issue that is a constitutional right that is fundamental to Americans and to our identity, but that very few Americans really understand,” James Sample, a constitutional law professor at Hofstra University’s School of Law, said in an interview. “The law has all kinds of instances in which speech is criminal activity.”
WHAT TO KNOW
- As Donald Trump mounts his defense against new federal criminal charges that he conspired to overturn the 2020 election, he's arguing the case takes direct aim at his First Amendment rights to free speech.
- But constitutional law scholars say while the First Amendment argument could stir public debate, it will not hold up in federal court.
- A Hofstra University law professor said Trump was attempting “to muddy the waters with an issue that is a constitutional right that is fundamental to Americans and to our identity, but that very few Americans really understand.”
Sample noted fraud, murder for hire, insider training and promotion of terrorism are among crimes that have “a speech element.”
“The fact that there is a speech component to criminal activity does not insulate the individual from being prosecuted for the criminal activity,” Sample said.
On Friday, Trump’s lawyers appeared in U.S. District Court in Washington for a pretrial hearing. They unsuccessfully challenged a protective order submitted by federal prosecutors limiting what he can disclose publicly about evidence collected in the case that will be provided to his defense team.
U.S. District Judge Tanya Chutkan warned Trump and his legal team “to take special care in your public statements about this case,” saying she would “take whatever measures are necessary to safeguard the integrity of these proceedings.”
At a campaign stop in New Hampshire last week Trump had vowed to continue speaking about his case: “I will talk about it. I will. They’re not taking away my First Amendment rights.”
The latest indictment against the former president is expected to generate more questions and debate about the First Amendment. Here is a look at some of the questions in play:
What the federal indictment says about Trump’s free speech rights
The 45-page indictment unsealed Aug. 1 says Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud.”
But in laying out the case against Trump, Special Counsel Jack Smith argued the former president “knowingly” spread false assertions of widespread election fraud, even as he was told by Republican state officials, Department of Justice investigators and top intelligence officials that none of the claims had panned out. The indictment alleges Trump continued to spread false information as part of a conspiracy aimed at overturning his loss to Democrat Joe Biden in the 2020 election.
Trump “widely disseminated his false claims of election fraud for months, despite the fact that he knew, and in many cases had been informed directly that they were not true,” the indictment says. “The Defendant’s knowingly false statements were integral to his criminal plans to defeat the federal government function … ”
What have Trump and his legal team argued so far?
Lauro, a Tampa, Florida-based criminal defense attorney, has been making the rounds on television to lay out Trump’s defense. Lauro argues Trump’s statements leading up to the Jan. 6, 2021, attack on the U.S. Capitol constituted politically protected speech, and says Smith will “never be able to prove beyond a reasonable doubt that President Trump had corrupt or criminal intent.”
Trump “believed in his heart of hearts that he had won that election and as any American citizen he had a right to speak out under the First Amendment,” Lauro said on NBC’s “Meet the Press,” on Aug. 6.
Trump, in Windham, New Hampshire, on Tuesday, appeared to address Smith’s allegations that Trump was aware he had lost the election, and there was no merit to his claims of rampant voter fraud.
“There was never a second of any day that I didn’t believe that it was a rigged election,” Trump told rallygoers.
Will the First Amendment line of defense work?
Legal experts agree widely that Trump’s First Amendment line of defense falls short of addressing the underlying charges he conspired to overturn the election through a pressure campaign that included formation of fake slates of electors to cast Electoral College votes for him.
Former U.S. Attorney General William Barr told CNN this month the First Amendment did not protect Trump from charges in the indictment.
“As the indictment says, they are not attacking his First Amendment right. He can say whatever he wants, he can even lie. He can even tell people that the election was stolen when he knew better,” Barr said. “But that does not protect you from entering into a conspiracy.”
Gregory Magarian, a constitutional law professor at Washington University School of Law in St Louis, said in an interview there are “all kinds of criminal behavior that take the form of speech. You can start with blackmail or perjury or trying to hire somebody to kill someone you don’t like — all of those things are crimes and all those things are crimes that take the form of speech.”
Magarian continued: “So, yes, speech is presumptively protected by the First Amendment but there are all kinds of circumstances, going back to the famous shouting ‘fire’ in a crowded movie theater — there are all kinds of ways in which speech can be unlawful.”
Magarian said while he believed the Trump’s team in news media interviews has presented a “specious argument,” it’s possible that once an actual trial starts the former president’s lawyers can find a way to build a defense around the First Amendment.
“We don’t know what all the evidence is going to be,” Magarian said. “So I’m not going to sit here and say that it is impossible that at some point during the trial, there could be a serious First Amendment argument about the way the prosecution is trying to use something.”
Kevin O’Brien, a former prosecutor in the U.S. Attorney’s Office for the Southern District of New York, said Trump’s legal team likely has been “testing the waters” by floating lines of defense in news media interviews, to see how the arguments are received.
“Trump is, whatever else you to think about him, very sensitive and astute when it comes to public opinion, and this is probably another one of those instances where he’s trying to float ideas or issues that he could run with,” said O’Brien, a founding partner of the white collar defense firm Ford O’Brien Landy LLP.
“A trial date hasn’t been set yet, but it’s going to be a long way off, so he’s looking for something to fill the airwaves between now and then,” O’Brien said.
Laura Figueroa Hernandez is the White House correspondent and previously covered New York City politics and government. She joined Newsday in 2012 after covering state and local politics for The Miami Herald.
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