Even lies are protected speech: Trump’s new impeachment guts the First Amendment

Former President Donald Trump’s latest federal indictment was handed down this week with all the authority of papal infallibility. Experts lined up to proclaim this case as the biggest prosecution in history.

Neil Katyal, the former acting attorney general of the Obama administration even declared that the prosecution launched “the biggest legal case of our lifetimes, perhaps almost ever. It’s up there with cases like Dred Scott, it’s up there with Brown v. Board of Education.” What was missing was a serious consideration of the implications of allowing the government to criminalize false statements in a campaign.

Trump was not charged with conspiracy to incite violence or insurrection. Rather, he was charged because he “spread lies that there had been fraud in determining the outcome of the election and that he had actually won.”

In order to secure convictions for this, Special Counsel Jack Smith would have to analyze not only the First Amendment, but existing case law that holds that even false statements are protected.

The government acknowledges that the Constitution protects false statements made on the campaign trail, but insists that Trump must have known his statements were false and therefore engaged in fraudulent statements to obstruct or contest the election results.

As a matter of threshold, a problem is immediately apparent. If Trump really believed (or believes) that he didn’t lose the election, the accusation sinks. And so, in an effort to demonstrate their knowledge, the indictment details how many people told Trump he was wrong about the election and about the law. I was one of those voices. Trump didn’t listen to me, most legal analysts or even his White House counsel. Instead, he heard from a small group of lawyers who assured him that a challenge could succeed and that there was evidence of massive voter fraud.

But Trump is allowed to seek facilitators to tell him what he wants to hear. All presidents do. (Joe Bidenfor example, he ignored virtually unanimous legal opinion and relied on the opinion of a single law professor to justify an obviously unconstitutional executive action. which later had to be reversed.)

This case, which criminally targets the sitting president’s primary opponent, is far more dangerous because it casts the federal government as the arbiter of truth.

This indictment essentially accuses Trump of not accepting the “truth”. There is no limiting principle to this charge. The government would choose between which politicians lie and which lie without reason.

In our current understanding of free speech, Democrats from Hillary Clinton to Rep. Jamie Raskin (D-Md.) engaged in protected speech when they called Trump illegitimate and challenge the certification of their victory, even though they knew their challenges were completely without merit. However, this indictment suggests that Trump engaged (and indeed still continues) in criminal conduct by insisting that the 2020 election was stolen. It also presumably follows that tens of millions of Americans who hold the same view are also involved in spreading the same false claims underlying the indictment.

Smith could still secure the cooperation of experts to support a claim that Trump knew. Many of us have noted the sudden silence of former chief of staff Mark Meadows and a couple of former Trump lawyers who do not appear to be among the six criminal co-conspirators referred to. One of those six might as well turn around and say that Trump said the whole thing was an undeniable but useful farce.

However, even assuming Trump knew his claims were false, it would still detract from the controversial effort to link his false claims to the actions of others to challenge the election. And even then, there remains the constitutional problem of criminalizing political lying.

In the 2012 decision United States v. Alvarezthe Supreme Court ruled 6-3 that it is unconstitutional to criminalize lying in a case involving a politician who had knowingly lied about his military decorations.

Some of us in the free speech community announced this decision as correct long before Trump was even a consideration for the presidency. The court recognized that criminalizing false statements “would give the government a broad censorship power unprecedented in this court’s cases or in our constitutional tradition. The mere potential for the exercise of this power is chilling, a chill that the First Amendment cannot allow if freedom of expression, thought and speech must continue to be a foundation of our freedom”.

The most striking thing about the case was that Xavier Álvarez I knew he was lying about the medals A 6-3 majority, including all the liberal justices on the court at the time, ruled that Congress had gone too far in trying to criminalize lying about military service.

Likewise, Trump may have known his claims of systemic voter fraud were false, but still believed a recount could overturn the close result. That might be what he meant in his call with Georgia officials in which he stated, “I just want to find 11,780 votes, which is one more than we have because we won the state.”

So even assuming Smith can prove Trump lied, there would still be constitutional barriers to criminalizing his false statements. That is why the threshold constitutional claims of this indictment should be addressed by the courts before moving forward.

The problem could lie with the judge. Even liberal pundits admit that Judge Tanya S. Chutkan, who has used the January 6 cases to vent, is the “worse [judge] Trump might have succeeded.”

Chutkan could effectively certify deeper constitutional issues and allow parties to seek appellate review. Or he could insist that Trump be tried before the constitutional questions are considered. While the D.C. Circuit is not a Trump-friendly court, the Supreme Court would likely resist criminalizing false political speech.

That would mean Chutkan could force a case to go to trial that shouldn’t go to trial. And even with a conviction, there would be a serious threshold constitutional question that is not fully answered by determining what was in Donald Trump’s mind.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.