Explainer: Trump’s Indictment and the First Amendment

Last updated: August 3, 2023

There is no First Amendment right to attempt to overturn a free, fair, secure election.  

Criminal conduct – including pressuring officials and lawmakers from seven states, federal agencies, and the vice president to obstruct an official proceeding of Congress and fraudulently alter the election results – isn’t protected speech. In arguing that Trump cannot be prosecuted because the First Amendment protects his claims that the election was “rigged” or “stolen”, Trump and his allies misunderstand settled First Amendment law and mischaracterize the indictment. 

Critically, the indictment does not claim that Trump should be convicted of a crime just because he spread lies about the 2020 election. 

The indictment states unequivocally that Trump “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.” In other words, he is not being prosecuted simply for lying about the 2020 election. Instead, Trump is charged with conspiring with others to disrupt the certification of President Biden as the winner of the election and deny the millions of Americans who voted in the 2020 election the right to have their votes counted.  

While the torrent of lies by Trump and his co-conspirators is a key part of the indictment’s allegations, it does not create a First Amendment problem. The United States Supreme Court settled this issue long ago. In a 1949 case called Giboney v. Empire Storage and Ice Co., the Court ruled that the First Amendment does not protect speech “used as an integral part of conduct in violation of a valid criminal statute.” In its decision, the Court explained, “it has never been deemed an abridgement 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, either spoken, written, or printed.” While Giboney is nearly 75 years old, it is still the law today. Earlier this year, Justice Barrett emphasized that the Supreme Court has “applied this principle many times” in United States v. Hansen. Writing for the Court, she applied it again, explaining that speech “intended to bring about a particular unlawful act has no social value; therefore, it is unprotected.” 

In plain language: the First Amendment doesn’t protect criminal activity. That is the situation here. The United States has charged Trump with a conspiracy to interfere with a “bedrock function” of the federal government: counting and certifying the results of a presidential election. Trump and his allies knew he lost, and still plotted a variety of schemes to change the outcome of the election. They attempted to use the authority of the DOJ to cast doubt on the election results, and pressured state officials to take actions to overturn the election results. They organized fake electors in seven states to submit false electoral certificates, and pressured Vice President Pence to use his ceremonial role to accept them—all to disrupt and prevent the peaceful transfer of power through the congressional certification of the election results for Biden. And in a last-ditch effort, they exploited the disruption of the January 6 attack to do the same. 

The fact that Trump employed a campaign of deceit to carry out that plan does not make the First Amendment a shield against conviction. 

This rule makes sense, and the Supreme Court has stuck by it. As Chief Justice Roberts explained in a 2006 decision in the case of Rumsfeld v. FAIR, a law prohibiting racial discrimination in hiring doesn’t suddenly become a free speech problem just because it would “require an employer to take down a sign reading ‘White applicants only.’” Other common-sense examples abound. If a car dealer tells you that he’s selling you a brand-new car, but in reality, it’s five years old and has a broken engine, it doesn’t violate the First Amendment to charge him with fraud. And a witness who lies under oath cannot protest that he was just exercising his right to free speech.  

For the same reason, the First Amendment does not protect Trump’s conduct here. And anyone claiming that it does simply hasn’t read the indictment. 

Resources 

• Just Security: Trump on Trial: A Model Prosecution Memo for Federal Election Interference Crimes, Second Edition (By Norman Eisen, Noah Bookbinder, Donald Ayer, Joshua Stanton, E. Danya Perry, Debra Perlin, Kayvan Farchadi, and Jason Powell) 
• Vox: There is no First Amendment right to overturn an election (By Ian Millhiser) 
• Election Law Blog: Why Trump’s First Amendment Defense is Likely to Fail: SCOTUS Won’t Buy It.”