Trump trials: What counts as protected free speech? – NBC US NEWS


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, the Trump team says. As a citizen, the then-president was entitled to petition government for “a redress of grievances,” as the First Amendment explicitly says.

Why We Wrote This

Several of former President Donald Trump’s court cases may hinge on a free speech defense – and the fine line between protected advocacy of illegal activity and unprotected criminal conspiracy.

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, and Mr. Trump has been charged with urging others to take illegal actions.

But some 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.

“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.”

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.

Why We Wrote This

Several of former President Donald Trump’s court cases may hinge on a free speech defense – and the fine line between protected advocacy of illegal activity and unprotected criminal conspiracy.

“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.



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