For a long time, there’s been a contention that President Donald Trump’s speech on January 6 is protected by the First Amendment. Many have believed that any legal action against him, especially citing cases like Brandenburg vs. Ohio, would likely fall short. I faced quite a bit of backlash for expressing my concerns about Special Counsel Jack Smith’s approach to this issue, particularly noting his seeming disregard for constitutional protections in his pursuit of prosecutions. In the past, I commented on how Smith’s second indictment, which was supported by some media, directly challenged the First Amendment.
Interestingly, just recently, the Washington Post acknowledged that Trump’s speech could be deemed protected, noting concerns about Smith’s approach. During a Congressional session, Smith was pressed by Chairman Jim Jordan on whether Trump’s remarks merited First Amendment protection. Smith responded with a definitive “Absolutely not,” suggesting that if statements were shown to target legitimate government operations and were knowingly false, they wouldn’t be protected. This perspective is not just misguided; it represents a serious misunderstanding of the First Amendment and past rulings by the Supreme Court.
First off, the Supreme Court has affirmed that knowingly false statements can indeed be covered by First Amendment protections. In the case of America vs. Alvarez, for instance, the court ruled against criminalizing lies, a ruling that extends to even insensitive speech. Additionally, in Snyder v. Phelps, the court upheld that even offensive protests could be protected under the same amendment.
Labeling statements as “fraud” doesn’t magically transform protected speech into something criminal. Trump firmly stated at a rally that he believed the election was stolen, a sentiment shared by many. This view falls squarely within the realm of protected political speech.
The Supreme Court’s ruling in Brandenburg v. Ohio established that even incitements to violence are protected unless there’s an imminent threat. It seems evident to me that if Smith were to challenge this, he would likely lose, as he has in previous cases where his overinterpretation of the law was called out.
It’s crucial to remember that Trump was never charged with inciting a riot, which is, perhaps, telling. The absence of charges underscores the understanding that his remarks did not qualify as criminal incitement, thereby maintaining their protection under the First Amendment. Yet, media outlets persistently parade experts asserting that Trump holds no such protections. For example, Harvard law professor Lawrence Tribe has been vociferous in claiming Trump’s statements could point to attempted murder.
Recently, the Post revised its stance, recognizing that Trump does have First Amendment protections and admitting that Smith represents a constitutional concern. This shift reflects notable changes within the editorial team, possibly influenced by the new ownership. The Post pointed out that political speech, regardless of its nature, deserves robust protection under the First Amendment—acknowledging that many politicians often stretch boundaries. Public scrutiny, not legal action, should serve as the primary control over such behavior.
While fraud can certainly be criminal, it’s typically linked to financial motivations rather than political ones. Smith’s attempts to differentiate between “legitimate government functions” and political speech is somewhat flawed since most political speech aims to impact those very functions.
Smith may wrongly assume that First Amendment exceptions only cover overtly inappropriate lies, like those Trump spread following his election loss. However, creating such exceptions could allow prosecutors with differing agendas to exploit them in the future. It’s an alarming thought to consider what kinds of rhetoric could fall under “unprotected” speech.
Additionally, during his testimony, Smith made it clear he wouldn’t retract the gag order he tried to impose on Trump, amidst mounting tensions as criminal charges intertwined with the upcoming 2024 election. He believed any comments Trump made could disrupt the judicial process, which has stirred significant debate.
This isn’t simply a critique of the Post; at least it’s making attempts now to more accurately reflect the realities regarding free speech. Smith’s testimony has only confirmed many of our critical perceptions about his views on constitutional principles. His apparent lack of understanding of such essential doctrines is unsettling, raising serious concerns about his respect for constitutional protections.
