吃瓜大本营

This editorial was by the Los Angeles Times.

Does the First Amendment shield Donald Trump from prosecution for conspiracy to obstruct the 2020 election results?

Trump鈥檚 lawyer has proclaimed the indictment 鈥渁n attack on free speech and political advocacy.鈥� He says Trump thought there was voter fraud, and 鈥渁s a president, he鈥檚 entitled to speak on those issues.鈥� And the by special counsel Jack Smith does repeatedly cite Trump鈥檚 false public statements about voter fraud. Is Trump right to claim free speech as a defense?

As ACLU lawyers, we take this question seriously. No organization has done more to defend speech rights than the ACLU 鈥� sometimes to the dismay of our allies. We鈥檝e defended Trump鈥檚 speech rights when he was sued for allegedly prompting a mob to beat up a protester. We criticized Twitter鈥檚 and Facebook鈥檚 decisions to de-platform Trump, and applauded when Trump was allowed back. We defended white supremacist Jason Kessler鈥檚 right to protest the removal of a Confederate memorial in Charlottesville, Va., supported the National Rifle Assn. in its First Amendment challenge to former New York Gov. Andrew Cuomo鈥檚 urging financial institutions to cut ties with the organization because of its 鈥減ro-gun鈥� speech. And in the 1970s, the ACLU defended the right of a neo-Nazi group to rally in Skokie, Ill., home to many Holocaust survivors at the time.

When it comes to free speech claims, we call them as we see them. But here, we don鈥檛 think the First Amendment bars Trump鈥檚 indictment. We pass no judgment on Trump鈥檚 ultimate guilt or innocence. He is entitled to the presumption of innocence, even as we believe that no person is above the law. But Trump鈥檚 First Amendment defense doesn鈥檛 cut it here.

Trump has been charged with conspiring to overturn the election results and obstruct the peaceful transfer of power. At times, he used words, including lies, to accomplish this. But that doesn鈥檛 mean he鈥檚 being prosecuted for constitutionally protected speech, any more than a bank robber who says, 鈥渉and over the money,鈥� to a teller.

If Trump had spread lies 鈥� on Twitter, in public speeches or anywhere else 鈥� but otherwise took no action to obstruct the election results, could he have been charged for merely claiming that he won when he knew he lost?

Obviously not. The First Amendment protects even false speech in many circumstances. The indictment itself concedes that Trump 鈥渉ad a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.鈥�

The problem was not Trump鈥檚 speech, but his alleged actions: his attempts to get state election officials to invalidate valid results and declare him the winner; to compel the Justice Department to claim that it had uncovered substantial evidence of fraud when it hadn鈥檛; to support efforts to create fake sets of electors to vote him into office in states that he lost; and to urge Vice President Mike Pence to refuse to certify the lawful election results.

Of course, many of these actions involved communication. But the fact that a crime includes speech does not turn the First Amendment into a defense. A conspiracy is an agreement to commit a crime, and almost always takes the form of words. Teaching a would-be suicide bomber how to make a bomb with the intent that he detonate it also involves communication, but that kind of communication can be prosecuted.

We do, however, have concerns about one aspect of the indictment. At several points, it charges that Trump repeated his lies in his speech on Jan. 6, 2021, to a crowd gathered at the White House. To the extent the Justice Department is seeking to hold Trump criminally responsible for the subsequent actions of the crowd that day, the prosecution would have to satisfy the legal standard that the ACLU helped established in , which says that speech advocating criminal conduct can be punished only if it is intended and likely to produce imminent lawless action.

Reasonable minds can differ on whether Trump鈥檚 remarks that day crossed that line. If the prosecutors seek to hold him accountable for the mob鈥檚 actions, they would have to satisfy that demanding standard. In the context of political speech, courts should be very hesitant to hold speakers liable for the actions of others.

But these concerns don鈥檛 bear on the great majority of the actions for which Trump faces trial. As Justice Hugo Black, a First Amendment absolutist, wrote more than 70 years ago: 鈥淚t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language.鈥� The First Amendment provides no license to conspire to overturn an election.