Is Trump Protected Because Of “Political Speech”?
Why "the First Amendment protects Trump" defense doesn't make sense
Yesterday, history was made again as former President Trump was indicted for the second time in Federal Court. The “talking” indictment, a term for an indictment that intentionally lays out the core facts that underly the prosecution, accuses Trump and presently unindicted co-conspirators of the literally unprecedented act of attempting to overturn the results of the 2020 Presidential Election. For more reaction to the indictment on OTB, see James’ article from today.
As one would expect, most Right Wing Media outlets immediately began to defend the former President and attack the indictment. And, as usual, Fox News turns to the heterodox Law Professor Jonathan Turley for assistance. Earlier in the day, Turley had tweeted the following reaction to the indictment which he more or less repeated on air:
In the area of First Amendment Law, the courts have long found that there are categories of speech. One of those categories is “political speech:” statements made by Politicians related to governance and political activities, in particular when they are addressing their constituencies. Along with religious speech, political speech was at the heart of the creation of First Amendment.
As such, in the US, political speech is highly protected. That understanding protected Trump when he was President. Perhaps the best example was in the E. Jean Carroll defamation lawsuit where the Department of Justice under both Trump and Biden1 advanced the argument that Trump’s comments about Carroll while on the campaign trail and as President fell under the category of political speech. And while that might seem like a stretch, the precedent was on their side. Take for example the case of a former Congressman who was sued by the Council on American-Islamic Relations for publicly blaming the organization for his divorce (among other things):
“Because the Congressman was acting, at least in part, for the purpose of preserving his effectiveness, this Court finds he was acting within the scope of his employment at the time of the incident in question,” U.S. District Court Judge Richard Leon concluded in an opinion dated March 29.
The case stemmed from comments made by Ballenger to a home-state newspaper, The Charlotte Observer, in October 2003.
During the interview, Ballenger blamed the demise of his 50-year marriage on the proximity of his Capitol Hill home to the Council on American-Islamic Relations headquarters — a situation that he said caused significant stress and “bugged the hell” out of his wife. Ballenger retired at the end of 2004.
The North Carolina Congressman also accused CAIR of being a “fundraising arm” for the terrorist organization Hezbollah, a statement at the core of CAIR’s defamation suit.
But U.S. District Court Judge Richard Leon granted Ballenger’s motion to dismiss the case, concluding that Ballenger “was acting within the scope of his employment.”
https://rollcall.com/2005/03/31/judge-throws-out-cair-suit-against-ballenger/
The First Amendment’s protection of political speech is also why it’s legal to outright lie in political speeches or interviews–something the indictment specifically calls out on page 2:
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-determinative fraud during the election and that he had won.
https://drive.google.com/file/d/129IFEN5MydlBCXRocEDzqw-wT3ed_TLs/view (h/t to Jay Caruso for creating an OCR’d verion of the indictment)
However, returning to the case of the Trump Indictment and Urick’s critique of Turely, the issue at hand are the limits of political speech. For example, take this exchange documented in the Indictment:
On January 1, the Defendant called the Vice President and berated him because he had learned that the Vice President had opposed a lawsuit seeking a judicial decision that, at the certification, the Vice President had the authority to reject or return votes to the states under the Constitution.
ibid
The Vice President responded that he thought there was no constitutional basis for such authority and that it was improper. In response, the Defendant told the Vice President, “You’re too honest.”
This private conversation, though it had to do with a political subject, isn’t necessarily protected as political speech. Or rather, this quote is doing something other than just political speech. In that speech act, Trump is calling attention to the fact that he is asking Vice President Pence to do something dishonest and outside of his power.2 Context is critical. And the indictment is full of examples of these conversations that, in context, are clearly more than just political speech–especially when read in light of other statutes.
It’s also apparent that Special Prosecutor Jack Smith’s team has carefully considered this issue when we consider what wasn’t charged. And this gets back to Urick’s mention of the Brandenberg Incitement test.
While the indictment does contain a number of Trump’s incendiary tweets leading up to and on January 6th, note that Trump is not charged with Incitement. As Ulrick correctly notes, this is an area where the Supreme Court has set an extremely high standard for political speech in the case of Brandenberg v. Ohio (1969). It’s a landmark First Amendment case where the court found that there needs to be an exceptionally high standard of speech creating the Brandenburg Test:
https://www.law.cornell.edu/wex/brandenburg_test
- The speech is “directed to inciting or producing imminent lawless action,” AND
- The speech is “likely to incite or produce such action.”
For more on Brandenberg, I recommend an episode of the podcast Make No Law, hosted by Ken White (aka Popehat) on the case.
This is an area where I, and I suspect Urlick, think Turley is right. While odious, Trump’s tweets most likely do not meet the Brandenburg test. That’s also a position that Ken White, himself a former Federal Prosecutor, has taken repeatedly in the past. And, at least for the moment, Smith appears to be following the same logic.
The Brandenberg test also gets to the issue with Turley’s position. In his tweet and other comments, it seems like he’s suggesting that because many of former President Trump’s comments in the indictment fall into the category of political speech they are somehow inherently off-limits. To be clear, this has never been the way that political speech has worked.
As White wrote earlier today:
[P]olitical speech is the most jealously protected speech under the First Amendment. Speech is not inherently or automatically outside of First Amendment protection merely because it is false. On the other hand, fraud and speech inherent in a crime are acknowledged First Amendment exceptions.
https://popehat.substack.com/p/people-are-lying-to-you-about-the
Returning to Brandenberg, everything is about context. The Brandenberg test is not simply whether the speech is political or not, but rather does it meet the two standards. Like it or not, Trump’s speech acts don’t appear to rise to that level.
Likewise, any of the speech acts in the indictment need to be read against the corresponding criminal statutes to determine contextually if they meet those standards. The majority consensus, outside of the Right Wing Media ecosystem, is that they do. And it clearly was enough for a Federal Grand Jury to Indict. Whether or not that thinking will survive the higher standard of a jury trial remains yet to be seen.
Note: I am not a lawyer. I have taken legal classes specifically on the First Amendment and specifically Brandenburg (among other topics). I am married to a Federal Clerk and these are topics we discuss. So without a doubt, Jonathan Turley has forgotten more about the First Amendment than I have ever known. However, it’s also worth noting that a lot of other Lawyers with First Amendment experience and Federal Criminal Prosecution experience disagree with Turley’s take (see both Ulrick and White as a few examples).
Also, I’d encourage anyone whose gotten this far and wants to raise the “well Turley’s an expert and you aren’t” to ask yourselves how your feel about Turley previously stating that he thinks that the last round of Federal changes against Trump are serious and well-founded. If you accept that Turley is right that all of this should be thrown out as political speech, then why don’t you accept Turley’s legal analysis of the Mar A Lago document situation (i.e. that this isn’t just an unfounded witch hunt?).
1 – As Trump has continued to advance the same attacks on E. Jean Carroll since leaving office, the DoJ has reached the conclusion that those comments no longer fall under the “political speech” protection.
2 – The “You’re too honest” quote is really important as Trump’s best defense is that he “honestly” believed he had won the 2020 election. However, admissions like this one, and other examples in the indictment where he refuses to consider evidence to the contrary, speak to the fact that he understood that the facts are against him and didn’t care, intentionally asking people to do dishonest things and take actions that are not legal.
![What happens when you lose [Insert Name]?](https://otb.cachefly.net/wp-content/uploads/2023/06/Screen-Shot-2023-06-11-at-9.39.45-AM-512x256.png)
The focus on incitement is reminiscent of the popular opinion defense of Liz Holmes, that failing at a business venture is not a crime. She was never charged with failing to make a go of Theranos, but with defrauding investors and patients. Benito’s not been charged with incitement in this latest indictment, but, coincidentally with Holmes, with attempts to defraud the country and the government.
Misdirection may work on popular opinion. It won’t work with a judge, and likely not with a jury instructed by a judge.
The indictment makes crystal clear, in the first few pages, that Trump has First Amendment Rights, as do all Americans.
In the following 43 pages he is indicted for things he DID, not things he said.
Anyone saying otherwise is trying to blow smoke up your bunghole.
[Interesting that the indictment is 45 pages long. Coincidence?]
@Kathy:
To be fair (and if you go back to comment threads here starting on Jan 6th), many, many, many of us wishcasted a charge and conviction on incitement. So this has been with us for a while.
IANAL, but my basic understanding:
A bunch of guys get together and talk about plans to interfere with a government function (e.g. certification of election results). Not a crime yet.
As soon as one of those guys takes specific action in furtherance of the plan, the whole plan becomes becomes a criminal conspiracy. That specific action need not be illegal.
DJT’s free speech rights, not withstanding, is a specific (legal) action taken in furtherance of the “plan” to interfere with a legitimate government function.
Any person(s) other than Trump and his apologists, who made the assertion – that ‘expression of political speech’ might protect Trump here – would be laughed out of the urinal stalls at a Denny’s Reataurant on CA I-5.
Notwithstanding the above, this is more ‘throw s*** against the wall and see what sticks.’
But really, in jury-trial all they (Trump et al) need are MAGA supporters …
David French’s column in this AM’s NYT plows similar ground and comes to the same conclusion and French was a career, 1st Amendment lawyer.
Trump’s other defense, that he truly believed he won, likely won’t stand in court, if for no other reason than he’ll need to take the stand to offer the testimony. The cross will be fun.
On a related subject, we should be flooding John Roberts with emails and phone calls telling him the America deserves to see this and the Docs trial on TV.
I have a gun. Give me all your money.
This note and related actions are protected speech under the First Amendment.
@gVOR10:
IMHO…this is actually an excellent distillation of the indictment.
“I have a gun” is free speech. In this analogy it’s what Trump said.
“Give me all your money” is not free speech. In this analogy it’s what Trump did.
He is not being indicted for what he said. He’s being indicted for what he did.
@Matt Bernius:
Yes, and I am 100% certain he’s guilty of incitement morally.
I’m not the Special Counsel, and more important I don’t have access to all the evidence Smith and his team examined. I’m willing to trust there was no indictment for incitement, because it couldn’t be proved in court.
The point remains incitement is not what El Cheeto’s been charged with. To claim or imply otherwise is dishonest and as fraudulent as Benito’s fake elector slates.
@Daryl:
Depends on context. If it’s on a note passed to a bank teller, I would bet not, even without the “give me all the money.”
@Daryl:
Let’s change it a little.
“I have a gun. I would like to have all your money.”
That’s not just free speech, but also a mere expression of facts and desires. If you give me all your money, it must have been by choice. I never asked for it, much less demanded it.
If I’d said: “I have a feather. I would like to have all your money,” it’s the same thing, right? Not my fault you’re more sympathetic when I have a gun.
@Gustopher: @Kathy:
“I have a gun” would be understood by everyone who heard it to be a threat.
@Matt Bernius: I think a strong case for incitement can be made, but Smith is aiming not for strong cases but slam dunk cases, at least for now.
Given the time constraints, that’s probably for the best, unless they can get from “a reasonable person would know that violence was a likely outcome” to “Donald Trump knew, and bragged about it”
@Kathy:
Ted Stevens is a convicted felon.
https://www.theguardian.com/world/2008/oct/27/congress-usa-ted-stevens-guilty
@Paul L.:
So the oil company chief gave Ted Stevens a “live sled dog”? Better than a dead sled dog, I suppose.
I love Jack Smith’s speech about this indictment about how great and brave the FBI are.
Just overlook U.S. gymnastics team doctor Larry Nassar.
“they had no idea they had been caught on video. I first provided the video to federal prosecutors, who in turn provided the video to the FBI for investigation. but the FBI agent tasked with the investigation didn’t investigate, but rather just tipped off the officers that I had a video showing them in Dustin’s house. I only found this out much later, after a lawsuit was filed and discovery was exchanged.”
Turley is a right-wing hack. He will say whatever is needed to end up with the result that Republicans Win Again. He works backwards from this conclusion.. because he’s not interested in objective reality. He got his bag for selling out in this way — and that’s fine, he got rich, good for him.. but he’s no longer a source of truth.
Anyone who asserts or even thinks quietly to themselves that Turley is some sort of authority on anything is either intentionally lying or a useful idiot.
@Paul L.: Man, what is your deal with sports teams and rape charges? I’ve been here for at least 12 years, and invariably, whenever you pop up, you somehow link EVERYTHING back to that?!
@Paul L.:
As always you never seem to address the topic of the post. And never seen to cite your sources. Usually Doctor Google helps, but in this case it has no idea where that quote comes from in the case of a basic search.
Either way, it would be great if you stayed on topic.
BTW, remind me how the Dr. Nassar prosecution eventually turned out? Yes, the FBI in that case reacted too slowly, but are you arguing that somehow Nassar was incorrectly prosecuted?
@Paul L.:
As always you never seem to address the topic of the post. And never seen to cite your sources. Usually Doctor Google helps, but in this case it has no idea where that quote comes from in the case of a basic search.
Either way, it would be great if you stayed on topic.
BTW, remind me how the Dr. Nassar prosecution eventually turned out? Yes, the FBI in that case reacted too slowly, but are you arguing that somehow Nassar was incorrectly prosecuted?
@mattbernius:
FBI agents covered up and stonewalled the investigation to get a gig with the Olympics.
FBI tips off corrupt cops. Case settled for $185,000 after officers plead the 5th
@Paul L.: There is nothing in that post about FBI agents looking for a gig at the Olympics.
I clicked on the link and accidentally gave your weird-ass friend another click, then I clicked on the next thinking it would make sense…..and it never did.
Here’s the way I think about it:
Imagine that I come to believe my neighbor has stolen my car. I go to the police and they tell me that there’s not only no evidence my neighbor stole my car but that my car is actually still in my driveway. I start screaming that the police are in on it and then put together a crew to break into my neighbor’s garage and steal his car.
Whether I honestly believed my car was stolen become irrelevant. And my behavior before the attempted theft — telling people my car was stolen — is very relevant. But what I’m being prosecuted for is not thinking or saying my car was stolen, but trying to steal my neighbor’s car.
This is like that. It’s not what Trump said or believed that’s the basis of the indictment; it’s what he did.
@Paul L.: and therefore Trump…is made of wood?
@Paul L.: @Erik:
Dealing with @Paul L is much like dealing with my Alzheimer’s patient father. One strains just to figure out WTF he’s talking about. Then you relax and realize, Oh, right: it doesn’t make any sense, it’s just word salad. Smile, nod, and pretend it’s the first time you ever heard the gibberish.
@Michael Reynolds: But it’s not the first time I’ve heard Paul L’s gibberish, and I really wonder if his obsession with sports teams and rape charges doesn’t say more about Paul L than we want to know.
Much like Trump…..every accusation is a confession.
As is the case with any lawyer, Turley can be right on the docs case and off in the weeds on J-6. As noted by many of the commenters, Turley is talking about speech and Smith is talking about conduct. Trump’s lawyers are, perhaps inadvertently, readily conceding their client is a liar in order to defend his indefensible plotting to steal an election.
The idea that outright lying is “protected” in any sense is offensive. To me the standard should be that only when speaking on matters of policy should be given deference. This nonsense about calling elections into question or anything else that would weaken trust in institutions should be allowed much less deference because that right there is the playbook from now on.
It’s like this stuff with SCOTUS. I assume that by now Republican operatives and friendly “journalists” have went over the 3 liberal justices with a atomic spectrometer in order to find similar “totally non-influencing” gifts and trips that they have received and not found a damn thing. So now all they are left with is that doing that sort of thing is “totally legal” (until one of the liberals do it).
We are coming to a point where no one of wealth and power can ever be held accountable ever.
@Gustopher:
Absolutely, because then it has gone beyond speech and is a criminal act.
@Charley in Cleveland:
Definitely. I also think it’s important to ask yourself why you are citing someone and the degree to which your position on that Pundit relies on whether or not they say something you agree with versus their overall track record on a topic area.
I used Turley as an example because he’s been a go-to for a number of years for Trump apologists. Yet, when Turley advanced a position they disagreed with (i.e. on the docs case) it gets memory-holed and they don’t engage with it. Later, when he’s saying something they agree with, again its “well, Turley says….”
This isn’t unique behavior to one side. I’ve seen progressives and liberals do that with other sources. Confirmation bias is a hell of a drug. And it’s also one that I think is really important to become aware of.
Or worse, that he was literally mentally incapable of accepting reality.
@Jax:
Why are you obsessed with defending and excusing corruption and misconduct by the law enforcement caste?
@Paul L.:
Why are you obsessed with defending and excusing corruption and misconduct by Trump?
@Paul L.:
Ok, a serious answer for me–I’m not. In fact, across my many posts on the topic of the criminal legal system, I’ve tried to approach these topics with a healthy level of skepticism. At my heart, I’m an abolitionist (though I see it as a multi-generational project).
And there is a lot to be critical of. The Ted Stevens’ case that you reference above is a perfect example–both in terms of the prosecution failing to disclose exculpatory evidence and, perhaps more importantly, the fact that giving false statements to the FBI is a criminal offense. That second point is one of the many laws that really needs to be undone.
That said, I also do my best not to hang my all of my arguments on specific outlier cases. Or feel like those say something that can be extrapolated to be applied to the whole system.
To that point, it also feels like your outrage often is a bit selective and largely used to defend people you seem to politically agree with. So for example, as I’ve point out in the past, under President Trump we saw an unprecedented increase of Federal Law Enforcement powers, especially under Bill Barr. This includes the restarting and fast tracking of Federal Executions. I don’t remember you expressing any concerns about that or having that in any way shake your support of Former President Trump.
Likewise, the indictment includes evidence that Jeffery Clark was prepared to have the DoJ use the Insurrection Act to forcefully put down any protests against Trump unlawfully staying in Office. If that had happened, that would have been another huge escalation of the power of Federal Law Enforcement. John Eastman also appeared giddy at the idea of violent suppression of protests (something we saw happen already during the administration in the use tear gas and violent tactics to clear protesters in Lafyette Park so Trump could have a photo op… again you didn’t seem to have an issue with that).
I would hope you’d be equally concerned about all those points. Perhaps you are. Or perhaps your moral high ground isn’t quite as high as you think it is.
@mattbernius:
Pittsburgh synagogue shooter Robert Gregory Bowers just got the death sentence.
Trump is too kind to law enforcement and AG Sessions and Barr are Cop and Order GOP.
Hopefully the DOJ will have a much harder time in the future. I am enjoying watching their credibility fall.
The indictment does not includes evidence just bunch of statements with no actual citations.
I like that it states multiple times “No evidence of widespread fraud”. not there was no fraud.
I support the repeal of 18 U.S. Code § 1001 – Statements or entries generally .
I sent a letter to my congressman arguing for a Federal Law Enforcement bill of rights with a disclaimer at the end that it is just copaganda.
I am thankful for this exception in the law.
@Paul L.:
I saw and, as a death penalty abolitionist, I’m disappointed by that. I also am disappointed that all Biden has done so far is suspend executions versus commuting them to life sentences and advocating for legislation overturning the Federal Death Penalty.
What constitutes evidence to you for something like this? Serious question. What type of citation are you looking for? In most cases, the indictment states that those quotes are taken from notes made by a named party.
Or is it more an issue of seeing it as evidence when it’s finally introduced on the record or entered in as sworn testimony?
Again, can you unpack what you mean by this? Do you think the election was stolen from Trump? Do you think there is any evidence of enough fraudulent voting to change the results?
We know there was fraudulent voting in 2020–there have been numerous successful prosecutions of individuals. However, there remains no evidence of mass fraud (i.e. in the numbers to swing a district, let alone a state). And any group that has alleged this has never been able to back up their claims. If you’re questioning the facts laid out in the indictment, then you have to also apply the same standard to “True the Vote.”
Then why argue for its necessity? I don’t understand the point you are advocating for here.
See, we found some things we agree on!
@Jax: Has he ever jabbered about Gym Jordan, one wonders?
Yes. Just like the Democrats and Russian Collusion.
I don’t support a Federal Law Enforcement bill of rights but want to point out how obviously unconstitutional the whole thing is using the Cops/Law and Order arguments of police.
@Blue Galangal:
Gym Jordan is wrong for agreeing with this defense of police misconduct .
From my trolling of my Congressman.
https://twitter.com/WeaponOutfitter/status/1638973572394913795
@Paul L.:
Thanks for unpacking both.
I’m also not sure your circuitous mode of argumentation ultimately serves you as well as you think it does.
@Michael Reynolds:
BAHAHAHAHAHAHAHA.
I can’t breathe.
Hahahahaha.
Look at this evidence. Where are the quote marks? Why no direct quotation of John Eastman’s words?
End of indictment.
Secret: There is no right to vote in the Constitution.
@Paul L.:
Worst kept secret ever, I turn 52 in a month or so and have heard the saying voting is a privilege not a right going back many decades of my life.
Also, I could claim that the election was stolen from Al Gore and Hillary Clinton, but I would be asked to show my work using reputable sources, you need to do same, show your work and allow us to look into the sources you are using to try and buttress your argument.
The difference between 2020 and 2000 is that we have proof Al Gore won the election after the recounts were completed. As has become a trend, Republicans threatened felony murder when a vote didn’t create a safe space for their feelings — the only difference is that Democrats in 2000 weren’t used to Republican psychopaths.. yet.
@Paul L.:
Except in its 14th, 15th, 17th, 19th and 26th Amendments.
Try reading the Constitution, and ask Alito to join.
@DK:
Please point to the parts of those amendments granting everyone “the free exercise and enjoyment of a right and privilege secured to them by the Constitution…, the right to vote , and to have one’s vote counted.”
Not preventing the right to vote on the basis of race, sex and age when 18 years old or older.