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:
- 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.