Donald Trump and his co-defendants just lost their First Amendment motion in the Georgia state election interference prosecution. Though Judge Scott McAfee acknowledged that such constitutional protections are vital, he found that they “do not reach the actions and statements alleged by the State.”

The ruling removes the latest barrier to trying Trump and his Georgia co-defendants, who have pleaded not guilty to charges that they sought to subvert the 2020 presidential election. But there’s still no trial date yet, and the defense appeal seeking Fulton County District Attorney Fani Willis’ disqualification is still pending. Trump’s other state case, in New York, is on track to be his first criminal trial, scheduled for April 15.

The Georgia defendants argued that the prosecution violates their First Amendment rights related to political speech and activity, freedom of association and to petition Congress. Rejecting their claims, McAfee wrote that, accepting the charges as true for purposes of his pretrial ruling, “the speech alleged in this indictment is integral to criminal conduct and categorically excluded from First Amendment protections.”

But whether the defendants’ speech or conduct was in fact criminal is “something only a jury can resolve,” he wrote.

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The judge emphasized that this litigation is taking place at a pretrial stage, before the factual record is developed, so the defense may be able to press the issue again at a later date. But for now, the First Amendment doesn’t save them from a trial. The bigger question, then, is when that trial will happen. 

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