There is no First Amendment right to overturn an election

Insurrectionists posing inside the Capitol building on January 6, 2021.
This is not protected speech. | Saul Loeb/AFP via Getty Images

Trump’s lawyers plan to argue he had a First Amendment right to subvert the 2020 election. He didn’t.

Shortly after special counsel Jack Smith unveiled four new criminal charges against former president Donald Trump — all arising out of Trump’s failed efforts to overturn his defeat in the 2020 election — one of Trump’s lawyers revealed one of the legal arguments he plans to use to defend the former president.

“This is an attack on free speech and political advocacy,” Trump attorney John Lauro told CNN Tuesday evening. In a separate appearance on Fox News, Lauro claimed that Trump is being prosecuted for “what he believed in and the policies and the political speech that he carried out as president.”

Lauro, in other words, appears to be laying the groundwork for an audacious First Amendment defense. His argument appears to be that, even if Smith proves all the facts laid out in the recent indictment — which alleges that Trump pressured officials throughout the federal and state governments to change vote counts, appoint fake members of the Electoral College, and otherwise tamper with the 2020 election’s results — Trump’s actions were all political speech protected by the First Amendment.

But Lauro is wrong.

There are at least two reasons Trump’s alleged actions are not protected speech. One is that Smith repeatedly accuses Trump of pressuring other government officials to commit criminal acts of election fraud, and it is well established that soliciting another individual to commit a crime is not protected by the First Amendment. As the Supreme Court held in United States v. Williams (2008), “offers to engage in illegal transactions are categorically excluded from First Amendment protection.”

Trump, for example, may not pressure a state elections official to “find” fraudulent votes that will change the electoral result in that state, for the same reason that he could not legally tell a hit man, “I will give you $50,000 if you kill my wife.” In both cases, Trump is engaged in speech. But the fact that this speech solicits another person to commit a specific crime generally removes it from the First Amendment’s protections.

Additionally, Smith repeatedly alleges that Trump “knew” that he was spreading lies when he claimed that he had prevailed in 2020, or that the outcome of the 2020 election was in doubt. This matters because the Supreme Court has held that the First Amendment is especially weak when applied to false statements made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

In fairness, the Supreme Court did say in United States v. Alvarez (2012) that some lies are protected speech. But Alvarez also indicates that “where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment.”

The latest indictment against Trump alleges that he knew his false statements, made in the hope of overturning the election, were lies. And the indictment offers several examples of conversations between Trump and his senior advisers that bolster the claim that Trump knew he was lying.

Smith alleges, for example, that, 17 days before Biden’s inauguration, Trump was briefed on “an overseas national security issue,” and his advisers suggested that Trump take no action because he was about to leave office. In response to this suggestion, Trump allegedly responded, “Yeah, you’re right, it’s too late for us. We’re going to give that to the next guy,” a statement which indicates that Trump knew full well that “the next guy” had won the 2020 election.

Of course, any legal analysis of an indictment against Donald Trump must come with a caveat. The federal judiciary, and particularly the Supreme Court, is controlled by Republican appointees who cannot always be trusted to apply the law fairly in the most politically charged cases. There is no guarantee, especially if Trump is the Republican Party’s 2024 presidential nominee, that his fellow partisans on the Supreme Court won’t try to bail him out by reading the First Amendment more expansively than it has been read in the past.

But, if the courts apply longstanding law to Trump’s case, he has no First Amendment defense.

Soliciting a crime is not protected by the First Amendment

There are fairly obvious reasons why soliciting another person to commit a crime is not protected speech. If it were, a criminal defendant who asks a hit man to commit murder, who offers to buy cocaine from a drug dealer, or who offers to exchange pornographic pictures of a child in return for similar pictures, could not be charged with a crime for these actions.

Williams involved just such an offer to exchange child pornography, and it declared in sweeping terms that “offers to engage in illegal transactions are categorically excluded from First Amendment protection.” In drawing this line, the Court also distinguished between speech that tries to induce a third party to commit a specific crime and vaguer forms of political advocacy. As the Court said in Williams, there is “an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality.”

Thus, for example, the First Amendment does protect an individual’s right to say, “I believe that child pornography should be legal.” And it even protects that individual’s right to make a vague statement encouraging criminal activity, such as, “I encourage you to obtain child pornography.” But if an individual explicitly solicits a third party to turn over “a particular piece of purported child pornography,” that is not protected speech.

The indictment includes many allegations that Trump did not simply engage in “abstract advocacy” in favor of overthrowing the 2020 election, but that he specifically solicited specific individuals to commit specific crimes — the very kind of activity that is not protected under Williams.

The indictment claims, for example, that Trump “asked the Arizona House Speaker to use the legislature to circumvent the process by which legitimate electors would be ascertained for Biden based on the popular vote, and replace those electors with a new slate for the Defendant.” It describes a call between Trump and Georgia Secretary of State Brad Raffensperger, in which Trump urged Raffensperger to “find 11,780 votes” (Trump lost Georgia by 11,779 votes). And it claims that Trump “directly pressured the Vice President to use his ceremonial role at the certification proceeding on January 6 to fraudulently overturn the results of the election.”

These allegations, along with similar allegations in the indictment that Trump pressured other officials to commit crimes, are the very kind of solicitation contemplated by Williams. Again, they go beyond the kind of “abstract advocacy” for overturning the 2020 election that is protected by the First Amendment, and cross the line into soliciting specific individuals to commit specific criminal acts.

All of this said, Smith cannot convict Trump unless he can prove the allegations in the indictment beyond a reasonable doubt. That is, while the indictment describes several alleged incidents when Trump and his co-conspirators solicited another person to commit a crime, Smith must prove to a jury that these incidents actually happened as he describes them.

But, assuming that Smith meets his burden of proof at trial, Williams should prevent Trump from hiding behind the First Amendment.

The First Amendment does not protect the kind of lies Trump is accused of telling

Additionally, the First Amendment provides much weaker protections for people who knowingly make false statements than it does for other speakers.

The seminal case establishing that lies enjoy far less First Amendment protection than the truth is New York Times v. Sullivan (1964), about when an individual may be sued for defamation if they make a false statement about a public official regarding a matter of public concern. Sullivan is best known because it provides very robust free speech protection to many false statements. As the Court emphasized, “erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.”

That said, Sullivan did hold that defamation suits could proceed, even when the plaintiff is an important political figure and even when the suit concerns political speech if the defendant made a false statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” So, when an individual tells a lie, knowing full well that they are lying, they enjoy far less First Amendment protection than they would in other contexts.

In fairness, the Court did place some limits on the government’s ability to criminalize lying in Alvarez, which struck down the Stolen Valor Act — a law making it a crime to lie about receiving a military decoration “made at any time, in any place, to any person.”

The Alvarez decision is a little difficult to parse because it did not produce a majority opinion. Three justices joined a dissent by Justice Samuel Alito, which would have upheld the Stolen Valor Act. Four others joined a plurality opinion by Justice Anthony Kennedy, which read the First Amendment fairly broadly; and two others joined a separate opinion by Justice Stephen Breyer, which struck down the Act, but on narrower grounds than the Kennedy opinion.

In any event, of these three opinions, Kennedy took the most expansive approach to free speech — and even his opinion makes clear that Trump’s alleged lies are not protected speech. Though Kennedy emphasized that the government may not make it a crime to tell a lie in “personal, whispered conversations within a home,” he endorsed prohibitions on laws prohibiting “defamation, fraud, or some other legally cognizable harm associated with a false statement.”

Thus, while Kennedy faulted the Stolen Valor Act for sweeping too broadly — criminalizing private statements that were unlikely to cause harm to anyone — he made clear that the government may still make it a crime to commit fraud. And, of course, that’s exactly what Trump is accused of doing. Among other things, the latest indictment against Trump accuses him of engaging in an illegal conspiracy to defraud the United States.

Thus, assuming that the Supreme Court does not decide to reinterpret the First Amendment to protect criminal activity that it has never protected in the past, Trump should not have a First Amendment defense against the latest charges against him. Soliciting others to commit a crime is not protected speech, and neither is willful fraud.

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