On Oct. 23, Donald Trump’s attorneys in his election subversion case filed a series of motions asking Judge Tanya Chutkan to dismiss the charges. One of the motions argues that the prosecution’s allegation that Trump used “knowingly false” claims of election fraud in trying to prevent Biden’s taking office conflicts with the former president’s right to free speech.
If the judge denies the motion, Trump’s lawyers will likely deploy a similar argument in his trial, insisting he is not guilty because his assertions that the 2020 election was fraudulent were protected speech. On close examination of its details, it becomes apparent the argument is defective.
According to the motion, in his persistent election denial prior to Biden’s inauguration, Trump was engaging in “core political speech,” expressing his personal “viewpoint” on a “widely disputed historical, social and political question” that is “not readily verifiable or falsifiable” — namely, the integrity of the 2020 election. When Trump impugned the election’s legitimacy, he was uttering political opinions and, therefore, exercising his freedom of speech.
The motion points out that “under the First Amendment, each individual American participating in a free marketplace of ideas — not the federal government — decides for him or herself what is true and false on great disputed social and political questions.”
Trump’s attorneys maintain that this constitutional right shields him from special counsel Jack Smith’s attempt to “criminalize” speech that is merely the communication of an idea. Hence, it precludes the government from taking legal action that entails considering whether Trump’s election denial was false or if he knew it was false.
At bottom, this is a “Who’s to say?” argument. It frames the election’s integrity as an issue so broad and complex that judging the truth of the matter must be left to individuals: “Such claims require the assessment of mountains of information from which each person will draw competing inferences on facts as well as their personal, deep-seated political views and presuppositions.”
The upshot is that the nature of the question of election integrity makes it inherently arguable, from which it follows that it is impossible for the government to establish that Trump’s election denial was “knowingly false.”
Note that this argument concerns only Trump’s general claims attacking the legitimacy of the 2020 election and ignores the many specific claims of election fraud he made in trying to thwart certification of Biden’s victory. Smith’s indictment refers to Trump’s “prolific lies about election fraud,” most of them quite specific.
For example, on Jan. 6, after having been told repeatedly by top state, administration and campaign officials the claims were false or baseless, Trump publicly declared that:
- 36,000 non-citizens voted in Arizona.
- More than 10,300 dead people voted in Georgia.
- An illicit dump of more than 100,000 ballots occurred in Detroit.
- 205,000 more votes than voters were cast in Pennsylvania.
- There were tens of thousands of unlawful votes in Wisconsin.
Such specific fraud claims are not simply opinions on controversial “social and political questions,” akin to, say, whether social media is bad for democracy. Indeed, they are “readily verifiable or falsifiable,” since election and law enforcement officials quickly ascertained that they were false or unsubstantiated.
In fact, discovering the truth or falsity of allegations of election fraud is part of the jobs of government officials tasked with securing elections, enforcing election laws and adjudicating criminal charges of election fraud. These activities, which are critical to public trust in our elections, presuppose that the truth of specific claims of election fraud is the government’s business and not solely up to individuals to judge for themselves.
Hence, if such claims can be effectively verified or falsified, then it is possible that Trump’s specific election fraud claims were false and he knew it. If the case goes to trial, it will be up to the jury to decide if he in fact knew they were false and used them in criminal acts to overturn the results of the 2020 election.
Moreover, the motion to dismiss ignores that Trump’s general claims about the election were based on his specific claims of election fraud in states won by Biden. So, if the truth of the latter claims grounding Trump’s general election denials can and should be evaluated by public officials, then the same is true of the general claims Trump took them to prove.
In that case, Trump’s assertions that the 2020 election overall was fraudulent were not political opinions but factual claims whose truth or falsity depends on the specific, empirically determinable fraud claims on which they were based.
Finally, it is clear that, whatever Trump actually believed, he himself did not mean his pronouncements of election fraud to be taken as mere opinion. When Trump made such claims, he invariably portrayed them not only as true but proven conclusively, albeit by evidence he never produced.
Dana M. Radcliffe is the Day Family Senior Lecturer of Business Ethics at the SC Johnson College of Business at Cornell University. He also teaches ethics and public policy at Syracuse University’s Maxwell School of Citizenship and Public Affairs.