Former President Donald Trump’s legal team and his allies are already previewing a legal argument that he may pursue to defend himself against his latest indictment: Special counsel Jack Smith’s charges infringe on his free speech rights protected under the First Amendment.
It’s the kind of argument that might sound exciting to Trump’s base, insofar as it taps into the right’s recent (and entirely inconsistent) insistence on free speech. But a number of legal experts say the argument is likely to fall flat in court because speech in service of criminal conduct is not protected.
Trump’s lawyer John Lauro recently said on the “TODAY” show: “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.” Lauro has also called the indictment “an attack on free speech and political advocacy.” And Republican leaders in Congress are also building the free speech narrative. Rep. Elise Stefanik, R-N.Y., the No. 3 Republican in the House, claimed Trump had “every right under the First Amendment to correctly raise concerns about election integrity in 2020.”
The real issue, as the indictment alleges, is that Trump used information he knew was false as part of a campaign to subvert the electoral process.
But the indictment doesn’t charge Trump with lying about the election. As we read at the beginning of the indictment, “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 adds that Trump “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.” In other words, Trump is not being charged with lying about winning the election. Nor is he being charged with demanding recounts based on those lies.
The real issue, as the indictment alleges, is that Trump used information he knew was false as part of a campaign to subvert the electoral process. The indictment argues that Trump knowingly used “false claims of election fraud” to support criminal activity: He “pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant.” The indictment also says Trump knowingly used false claims in an attempt to “convince the vice president to accept the defendant’s fraudulent electors, reject legitimate electoral votes or send legitimate electoral votes to state legislatures for review rather than counting them.”
Trump’s lawyers may try to argue that Trump truly believed everything he said, but the indictment chronicles the many lawyers and officials who informed Trump that there was no evidence of “outcome-determinative fraud.” Trump is also documented as acknowledging that his efforts to overturn the election were not based on an honest appraisal of the rules. For example, the indictment says that when then-Vice President Mike Pence insisted to Trump that he lacked the constitutional authority to reject state tallies, Trump told Pence, “You’re too honest.” Samuel Buell, a professor of law at Duke University, dismantled the free speech defense rather bluntly in an interview with The New York Times: “There is no First Amendment privilege to commit crimes just because you did it by speaking.” Ian Millhiser has a good deep dive into the legal precedents for that point at Vox, pointing out that “soliciting another individual to commit a crime is not protected by the First Amendment.” He likened it to the illegality of an individual promising money to a hitman to kill his wife. Millhiser also points out that a number of court rulings, such as New York Times v. Sullivan (1964), suggest that First Amendment protections are weaker for citizens when they knowingly make false statements. Trump’s lawyers have indicated that they may use other legal arguments as well, such as claiming that he was acting on the advice of his lawyers. (Rep. Jamie Raskin, D-Md., cast doubt on that argument thusly to The Washington Post, “If [former Trump lawyer] John Eastman tells you that you have a right to rob a bank because he has questions about the currency system, that is not a defense to having robbed a bank.”) But it appears the free speech argument is the one his supporters are leaning on most heavily at this point. Obviously, unless Trump pleads guilty to the accusations, he has to mount some kind of defense, but the one that says he had a First Amendment right to do what he did seems to have many pitfalls.
Zeeshan Aleem is a writer and editor for MS NOW. Previously, he worked at Vox, HuffPost and Politico, and he has also been published in, among other places, The New York Times, The Atlantic, The Nation, and The Intercept. You can sign up for his free politics newsletter by clicking the link at the top of this bio. 
