The August 1, 2023 indictment of former President Donald J. Trump on four criminal charges related to repeated attempts to overthrow the 2020 presidential election results has triggered contentious public debate about the free speech rights guaranteed by the U.S. Constitution.
Trump’s defense team has signaled that they will defend the former president under the free speech doctrine. His legion of supporters and his core political base in the U.S. House of Representatives have undertaken collective “free speech” arguments to condemn the indictment, most of whom, including those in Congress, apparently have never read the U.S. Constitution, much less the First Amendment.
The First Amendment to the U.S. Constitution provides, in part, that “Congress shall make no law … abridging freedom of speech.”
Despite this specific warning that “Congress shall make no law” that infringes on the right of free speech, Congress and state legislatures, with judicial over sight and approval, have enacted scores of laws to curtail speech in an evolving society that has experienced and will continue to experience social and legal complexities the constitutional framers could never have possibly imagined. These laws establish that federal and state governments can regulate the time, place, or manner of speech without transgressing the First Amendment.
The following is a non-exhaustive list of speech the courts have found can be limited as long as the restrictions are strictly tailored to address specific compelling interests:
Threats. There are two basic kinds of speech threats: physical and terroristic. A physical threat generally entails threatening someone with bodily harm or death, while a terroristic threat generally entails threats to commit violent offenses against a person or property. These threats can be punished at the state and federal level as felonies or misdemeanors.
Fighting Words. Generally defined as insults that are likely to produce a physical altercation or pose a clear and present danger to the public. The U.S. Supreme has defined fighting words as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The Court has held that this type of speech can be criminalized.
Pornography. There are two types of pornography: child pornography, which, as the Supreme Court held in 1982, is the graphic sexual depiction of children, and obscenity, which is speech that, as the Supreme said in 1973, is “utterly without socially redeeming value;” lacks any “serious literary, artistic, political, or scientific value;” and is an “appeal to the prurient interests in sex.” Both forms of pornography are criminalized at the state and federal levels.
Revenge Porn. The posting to the Internet images of a person’s genitalia, pubic area, or anal area without effective consent is a crime.
Defamatory Lies: There are two types of defamation: lies that are written commonly known as “libel” and lies that are spoken commonly known as “slander.” Although once considered a prosecutable criminal offense, defamation is now primarily a civil offense subject to civil litigation.
Fraud Speech: Speech that is used to steal money, engage in false advertising, commit perjury, or falsely yell “fire” in a crowded theater—all of which can, and is, criminalized.
Radio and Television Speech. U.S. Supreme Court has held that the federal government, through the Federal Communication Commission, can regulate speech on radio and television. This ruling, however, does not apply to cable television, the Internet, newspapers or social media.
Government Employee Speech. The government can regulate and restrict what and when some of its employees can say.
Student Speech: School systems can regulate and restrict the time, place and manner of student speech.
Copyright Infringement: Unless the “fair use” exception applies, people are not free to copy, print, publish, or post material that is created by others when that material is protected by copyright laws.
What is considered “protected speech” then?
- Flag burning
- “F..k Joe Biden” flags commonly seen flying on Texas motor vehicles
- Hate inspired armbands
- Ku Klux Klan speech
- Cross-burning one’s property if charged as an “expression” crime
- Offensive protests signs
- Works of art
- T-shirt slogans
- Music lyrics
- Theatrical performances
- Political posters and buttons
The U.S. Supreme Court has held that “protected speech” extends to both individual and collective speech that is “in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”
Many crimes can be proven by the words spoken by a defendant, along with other circumstantial evidence. Thus, the importance of a confession in a criminal case. It is not the speech being criminalized but rather the underlying crimes proven by words that indicate intent and state of mind.
“Crimes that induce the commission of criminal activity may implicate free speech principles because they characteristically are committed by speech advocating, advising, or teaching, albeit with the intent of causing a specific criminal objective. Although courts vigilantly will ensure that prosecutions are not based improperly on the mere expression of unpopular ideas, if the evidence shows that speech crossed the line into criminal solicitation, procurement of criminal activity or conspiracy to violate the laws, then prosecution is permissible. The Supreme Court upheld that the government may not criminalize advocacy of the use of force or violence except where such advocacy is directed at inciting imminent lawless action and is likely to do so. Speech or expressive conduct that does not incite imminent action, but also does not amount to advocacy can be punished without violating the constitutional rights of the speaker when the speech exhibits an unambiguous and serious intention to commit or induce the commission of a violent crime. Such speech constitutes a step toward completed violence; speech is not protected by the first amendment when it is the very vehicle of the crime itself. “
As the United States Democracy Center succinctly states, “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.”
“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.”
The free speech defense being pushed by Trump’s supporters will fail not only because of his conduct/acts (revealed through witness testimony and recordings) but because of his language (memorialized in countless news feeds) intended to incite and produce lawless actions to interfere with the constitutional transfer of presidential power. “The fact that Trump employed a campaign of deceit to carry out that plan does not make the First Amendment a shield against conviction.”
Freedom of speech is not a license to commit crimes to secure a desired political outcome. The courts, not mob rule, determine the legitimacy of presential elections in America.