Trump's Phony "Free Speech" Defense
After a federal grand jury on Tuesday afternoon indicted Donald Trump with 4 charges related to subverting the results of 2020 election to remain in power illegally, Trump, one of his lawyers, and his surrogates in politics and conservative media have all predictably resorted to a Free Speech defense. As a matter of the First Amendment, they tell us, Donald Trump has the absolute and protected right to state a political opinion. This is no less than a Communist attack on the country's beloved Constitution! ...Or is it?
I said this Free Speech defense is predictable.... How predictable is it? It's so predictable that Special Counsel Jack Smith addressed it in literally the third paragraph under "Introduction" of his 45 page document. For example, see CNN's full text of indictment with annotation (1 Aug 2023).
3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinant fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as seeking recounts or audits of the popular votes in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.
As you read this you can sense there's a "But" coming. That "But" is spelled out in the next 43½ pages.
What's the "But"? The but is the difference between speech and conduct. The Constitution protects free speech. It does not guarantee free conduct. Rep. Jamie Raskin gave a vivid example of the difference in a media interview Wednesday:
You can say, well, I think the currency is phony and everybody should be allowed to make up their own money. You can say that. But the minute you start printing your own money now, you’ve run afoul of the counterfeit laws. And it’s the exact same thing with the Electoral College.
They can say, well, we don’t think that Joe Biden really won in these states, even though every federal and state court rejected all of their claims of electoral fraud and corruption. But the minute they start manufacturing counterfeit electors and trying to have them substitute for the real electors that came through the federal and state legal process, at that point, they’ve crossed over from speech to conduct.
Trump's Free Speech defense is a non-starter in any court of law. Unfortunately in the court of public opinion plus-or-minus half the country will think it's true.
I said this Free Speech defense is predictable.... How predictable is it? It's so predictable that Special Counsel Jack Smith addressed it in literally the third paragraph under "Introduction" of his 45 page document. For example, see CNN's full text of indictment with annotation (1 Aug 2023).
3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinant fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as seeking recounts or audits of the popular votes in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.
As you read this you can sense there's a "But" coming. That "But" is spelled out in the next 43½ pages.
What's the "But"? The but is the difference between speech and conduct. The Constitution protects free speech. It does not guarantee free conduct. Rep. Jamie Raskin gave a vivid example of the difference in a media interview Wednesday:
You can say, well, I think the currency is phony and everybody should be allowed to make up their own money. You can say that. But the minute you start printing your own money now, you’ve run afoul of the counterfeit laws. And it’s the exact same thing with the Electoral College.
They can say, well, we don’t think that Joe Biden really won in these states, even though every federal and state court rejected all of their claims of electoral fraud and corruption. But the minute they start manufacturing counterfeit electors and trying to have them substitute for the real electors that came through the federal and state legal process, at that point, they’ve crossed over from speech to conduct.
Trump's Free Speech defense is a non-starter in any court of law. Unfortunately in the court of public opinion plus-or-minus half the country will think it's true.