Jack Smith’s Trump indictment goes where free speech ends and criminal conspiracy begins

Before Monday’s additional state indictment in Georgia, former President Trump stood accused in federal court of criminal conspiracy to subvert the 2020 presidential election results.

Conspiracy charges, by their very nature, include communication. But on the second page of the federal indictment, in the third enumerated paragraph, the prosecution attempts to make clear that Trump is not being prosecuted for his repeated lies about a stolen election. He is being prosecuted for the efforts he made and the actions he took to operationalize his desire to overturn the election.

Conspiracy is the communication between two or more people that indicates the intention to commit a crime. The indictment is grounded in the long-standing constitutional principle that simply because speech or communication is part of a transaction does not automatically imbue the transaction with constitutional protection. The First Amendment does not and was never intended to protect criminal activity or all behaviors intended to communicate.

Indeed, the indictment is nothing short of surgical. It focuses on language to procure criminal conduct. The indictment describes behavior that evidences an agreement to defraud the U.S. by obstructing the collecting, the counting, and the certification of the results of a federal election; to obstruct the certification of the election by Congress and the fulfillment of that agreement; and an agreement to violate rights, by threats and intimidation that are guaranteed by the Constitution — in this case, the right to vote.

In his defense, Trump’s lawyers and his surrogates reject the distinctions made in the indictment and argue that Trump was engaging in political speech. They know that the strength of First Amendment protections is paramount in the face of political speech. Political speech is protected even when it is caustic, hateful, hurtful or untrue — as long as it does not cross into a space where it invades the rights and liberties of others.

The prosecution will have an easier time convincing a jury in a court of law that Trump was not engaged in constitutionally protected speech than it will in the court of public opinion. The prosecution will have the benefit of the undivided attention of the jurors and the luxury of time to educate them about First Amendment principles.

The jury will learn that muting and muzzling political speech is repugnant to the First Amendment. Critical and robust debate is necessary to ensure the proper functioning of our government and democracy. Time and time again, when the content of speech is defined by the courts as political, they rely on the default position that the speech should be protected; notwithstanding claims of national security, claims of potential violence, claims of emotional distress, claims of vulgarity or tastelessness. The list goes on, but the list is not endless.

The jury will learn that even highly charged political rhetoric lies within the core of First Amendment protection. A speaker must be free to persuade the audience with the use of emotional appeals. But First Amendment protections are unavailable when it comes to words that constitute a crime.

The indictment specifies that Trump disregarded the truth as reported to him by people who were best positioned to know the facts, including then-Vice President Mike Pence, senior leaders of the Justice Department — who were appointed by Trump, the director of National Intelligence, senior White House attorneys, state legislators and officials — many of whom were Trump’s political allies. As such, the indictment alleges he knew he was disseminating false claims when he insinuated that more than 10,000 dead voters had voted in Georgia, asserted that there had been 205,000 more votes than voters in Pennsylvania, insisted that there had been a suspicious vote dump in Detroit, claimed that there had been tens of thousands of double votes and other fraud in Nevada, announced that more than 30,000 noncitizens had voted in Arizona, and declared that voting machines in various contested states had switched votes from Trump to then President-elect Biden.

The prosecution argues that those false claims were then used to craft a strategy to overturn the 2020 presidential election. It is the strategy, the agreement to commit the crimes of obstruction and fraud for which Trump is being criminally charged. He is not being charged for making the false claims. 

The claims by themselves are protected by the First Amendment, even if those claims are verifiably false. Should there be a guilty verdict, it is an important distinction on which both a jury and the public must agree if the verdict is to be generally and widely accepted as just and fair.

Lynn Greenky. is a Professor Emeritus at Syracuse University, where she taught a beloved undergraduate course about the First Amendment for 10 years. She continues to write and speak about the First Amendment and is the author of When Freedom Speaks.