What People Get Wrong This Week: Trump and the First Amendment

The initiation of a criminal case against a former president for trying to cancel the election is both a catastrophic historical event and an incredible annoyance for people who respect the truth. Thanks to Donald Trump’s latest indictment, our culture will be rife with even more delusions for years to come.

It is still too early to tell what legal strategies Donald Trump’s defense team will use in court to acquit him, but the court of public opinion is reiterating and refining the armed argument that the former president was charged simply for doing their first duties. Amendment to the right to freedom of speech.

Senator Marco Rubio put it this way: “Clearly, it is now considered a crime to make statements challenging the results of an election if the prosecutor decides that these statements are untrue.” Senator Tom Cotton made a similar argument on Fox News: “These are all constitutionally protected activities that former President Trump was engaged in, political activities and free speech protected by the First Amendment.”

Now this is nonsense.

Donald Trump was not arrested for questioning in the 2020 election

Whether Trump will be found guilty or just engaged in protected “political activities” remains to be seen, but Rubio and Cotton are both lawyers, so they already know that Trump is not being charged with “making statements.” The indictment itself goes to great lengths to point this out: “The defendant had the right, like every American, to speak publicly about the election and even to falsely claim that there was electoral fraud that decided the outcome and that he won,” it says. in the message.

Trump (or anyone) is allowed to say “I think the election was rigged” – that’s what the First Amendment is for, and that’s what Trump has done (over and over again). Trump is also allowed to challenge the results in court, which he has done (again and again, without success). But if Trump took action to “recruit accomplices to aid him in his criminal efforts to overturn the legitimate results of the 2020 election” and those accomplices also took action to achieve that goal, as the indictment alleges, freedom of speech is probably not adequate protection and will not be effective.

Rubio and others essentially argue that if the kidnapper writes a ransom note, it is free speech protected, meaning they are not guilty of kidnapping. Although the First Amendment gives a person the right to write as many ransom notes as they want, once they hold someone against their will and send the note to the family, the message is no longer “freedom of speech”. This is evidence of a crime.

What does it mean to enter into a conspiracy?

In a broad legal sense, conspiracy exists when two or more people come together and enter into an agreement to break the law, and then act on that agreement in some way. So if you say to your friend, “Let’s kidnap someone,” and he says, “Great idea!” and then start typing a ransom note and buying some rope, you both probably conspired to commit a crime even though all you did was talk even if you didn’t end up committing a crime.

As Ilya Somin, a professor of law at George Mason University, said on roll , “Trump has gone beyond simply claiming the election was stolen from him. He and his accomplices had a specific plan to prevent the election results from being confirmed… this is different from someone sitting on a bar stool or even someone walking on TV and saying, “Well, I think the election was stolen.”

Trump is not charged with a crime for his speech before the Capitol riot

Before the January 6 indictment, there were rumors that Trump could be charged with incitement, i.e. “inciting another person to commit a crime,” for a speech he gave to his supporters shortly before the Capitol riot. But no such charges were brought, perhaps because it is very difficult to prove incitement by a political figure who spoke. If a charge of incitement were brought, the argument that Trump’s speech is protected by the Bill of Rights would make sense. But in its current form, the First Amendment does not appear to offer legal protection for the crimes Trump is accused of.