Trump trials: What counts as protected free speech?

When former President Donald Trump’s lawyers talk about his defense for the federal and Georgia Jan. 6 charges against him, one recurrent theme is that Mr. Trump’s efforts to reverse the 2020 election are protected by the First Amendment of the U.S. Constitution.

His request of Vice President Mike Pence to pause the Electoral College vote count, or his phone call to Georgia Secretary of State Brad Raffensperger asking him to “find” 11,780 votes, was shielded free speech, they say. As a citizen, the then-president was entitled to petition government for “a redress of grievances,” as the First Amendment explicitly says, the Trump team adds.

Much of what Mr. Trump has been indicted for is not just speech, but “political speech,” Trump attorney John Lauro said on CNN earlier this month.

“There’s nothing more protected under the First Amendment than political speech,” Mr. Lauro said.

Many legal analysts are skeptical this approach will work in a courtroom. There is no First Amendment right to engage in a conspiracy to break the law, they point out, and Mr. Trump has been charged with urging others to take illegal actions.

Nor is “political” speech actually uniquely protected under the law, they say.

But some experts add that there are fuzzy lines in First Amendment jurisprudence. It is an area of law that is not as settled as one might think, given the Constitution’s age.

Judges in Trump cases may also be reluctant to slap pretrial speech restrictions on a former president and current political candidate who is adamant about First Amendment rights, even if he makes inflammatory comments about his legal situations.

“The basic point is that there are areas of uncertainty,” says Frederick Schauer, a professor and First Amendment scholar at the University of Virginia School of Law. “Raising a First Amendment defense might, depending on the facts, not be completely frivolous.”

“Aspirational asks” 

Mr. Trump may face judgment on his Jan. 6 defenses sooner than he had wanted. His lawyers had asked that the federal trial on charges filed by special counsel Jack Smith be delayed until 2026. But on Monday, Judge Tanya Chutkan rejected this position and set a trial opening date of March 4, 2024 – during the presidential primary campaign season.

Given that schedule, the former president’s legal team has seven months to set defense strategy. But in television and other media appearances so far, their statements have outlined a general approach, with the First Amendment as a backbone.

Trump lawyers have acknowledged that it is possible to commit a conspiracy crime with words alone. But they say there is no connection between Mr. Trump’s false assertions that he had won, his various phone calls to other officials, his lobbying of Mr. Pence, and illegal activities.

Those were “core political speech” and “aspirational asks,” said Mr. Lauro on “Fox News Sunday” earlier this month.

“President Trump did not issue any executive orders or do anything in terms of using levers of executive power. He simply petitioned and asked,” said Mr. Lauro.

In contrast, Mr. Smith, in his indictment of Mr. Trump for Jan. 6-related offenses, noted that the former president has a right, like every American, to speak his mind about the election. He even had a right to say, falsely, that fraud had swayed the election outcome and that he had won.

But Mr. Trump did not have the right to use speech to pursue illegal means of subverting the election results, the indictment said. Prosecutors charge that he did just that by pushing to illegally obstruct the Jan. 6 congressional Electoral College vote count, engaging in efforts to organize false slates of electors in key states, and pushing state election officials to use illegal means to change their vote counts, all efforts dependent on “dishonesty, fraud, and deceit.”

Political dissent vs. overturning an election

Some experts note that pursuing charges that depend heavily on speech can involve difficult prosecutorial decisions. For instance, prosecutors did not pursue a charge of incitement against Mr. Trump for his speech to a crowd of supporters on Jan. 6, 2021, many of whom later stormed the U.S. Capitol building.

“If [federal prosecutors] said the speech Trump gave on Jan. 6 incited a riot, I would’ve been willing to defend him on that,” says Gregg Leslie, executive director of the First Amendment Clinic at Arizona State University in Tempe.

Furthermore, there are legal restrictions on how speech can be linked to allegedly illegal conspiratorial action. Under Supreme Court decisions, such speech must advocate illegal activity, the speaker must be urging imminent action, and it must be likely that the illegal action will really occur.

Urging in the abstract that people ought to rob banks to bring capitalism to its knees would be protected under the First Amendment, says Professor Schauer. Urging particular people in a nonpublic manner to rob a bank and give the speaker some of the money would not.

“So a lot may depend on the fuzzy line between protected advocacy of illegal activity and unprotected criminal conspiracy,” says Professor Schauer.

Some experts say Mr. Trump’s lawyers’ description of his activities as “political” speech may be more of a rhetorical flourish than legally meaningful.

Political speech is often presented as axiomatic of the type of speech that the First Amendment is designed to protect, says Gregory Magarian, a constitutional law professor at Washington University School of Law in St. Louis. That does not make it a special category, he says. Speech is speech.

The loser of an election is allowed to say they really won, even if everyone around them is saying otherwise. 

“But if the loser is the president and he is using the power of the office to overturn an adverse election result, that’s way off in its own ZIP code in terms of protecting political dissent,” says Professor Magarian.

Complications from campaigning

As a defendant in multiple criminal cases, Mr. Trump is now subject to direct judicial curbs on his freedom of speech. Yet he is also a candidate for the highest elected office in the country – and campaigning involves lots of speaking. The tensions inherent in this situation are obvious, says Ciara Torres-Spelliscy, a professor at the Stetson University College of Law in Florida.

“Political candidates usually get broad First Amendment protections. However, criminal defendants often have their speech rights and associations rights curtailed to protect the integrity of the criminal justice system,” says Professor Torres-Spelliscy by email.

Judges can order criminal defendants not to speak to witnesses, or say anything that could intimidate anyone involved in their trial or possibly taint a jury pool.

In 2019, a federal judge tightened a gag order on Trump associate Roger Stone, for instance, after he posted on social media a depiction of the judge next to a target. Mr. Stone was on trial at the time for lying to Congress and witness tampering.

This month, a judge jailed accused crypto fraudster Sam Bankman-Fried for allegedly contacting potential witnesses against him, and other forms of witness tampering.

Mr. Trump has already been warned by Judge Chutkan that there are limits to what he can publicly say about his federal Jan. 6 trial as a political candidate. The warning followed a social media post by Mr. Trump that threatened he would be “coming after” those who “go after” him.

But Judge Chutkan may be reluctant to impose further restrictions on Mr. Trump’s speech, in part because that would be unprecedented, and in part because Mr. Trump might actually want such a fight over what he would surely term a “gag order,” says Professor Magarian.

The entire scope of the Trump Jan. 6 prosecutions is “going to be one of the biggest conversations that a lot of people have seen in a long time about First Amendment rights,” he adds.