Trump Could Be Shielded From Jan. 6 Charges Thanks to Decades-Old Precedent

Former President Donald Trump has continued to say that he never incited violence on January 6, 2021, and that defense might carry him through if criminal charges are filed against him.

The January 6 House Select Committee this week issued four criminal referrals against Trump at the culmination of its investigation into his actions regarding the January 6, 2021, Capitol riot.

The referrals were for obstruction of an official proceeding, conspiracy to defraud the U.S., conspiracy to make a false statement and to "incite," "assist," or "aid or comfort" an insurrection. Trump's legal team could use the First Amendment's free speech protection as a defense if charges are brought.

Free speech has been protected by the U.S. Supreme Court for decades, and there are limitations on when it can be criminalized. From the 1969 case Brandenburg v. Ohio, the Supreme Court follows a two-fold rule when dealing with speech. The case determined that in order to be considered criminal, speech must be intended to incite or produce imminent lawless action, and the speech also must be likely to do so.

However, University at Buffalo School of Law professor Jim Gardner told Newsweek that the current Supreme Court has "been successfully captured by the Republican Party" and might not follow the Brandenburg rule.

"[This court] has revealed itself to be quite willing to throw out long-standing precedent, and it wouldn't surprise me if they came up with some other rule that was more speech friendly," he said.

On January 6, after Trump delivered a Save America rally speech, rioters descended on the U.S. Capitol. Trump told his followers to "fight" and referenced the stolen election. Trump continues to argue that what he said that day was protected by the First Amendment.

Legal experts have said the defense is not solid. The Atlantic published an article on Tuesday that said to overcome the First Amendment defense, prosecution must look at the overall actions Trump took that day rather than his words at the rally.

The article said Trump's defense could continue to argue protection by the First Amendment. Although he called for his supporters to "fight" many times in his speech, it could be argued that the word was purely metaphorical as Trump didn't specifically demand his supporters partake in violence. Trump urged his supporters to avoid violence and to march "peacefully and patriotically," making it a difficult argument that he explicitly requested lawless action.

Gardner said when it comes to speech, context is important as even if a phrase or word isn't explicitly said, it could be implied to a specific group of people, such as the mob that rioted at the Capitol.

"We now know at least some members of this crowd were primed beforehand with fairly explicit messaging sent around by some of these insurrectionist groups," Gardner said. "Those people were there for a specific purpose and maybe those people were waiting for a signal."

Several rioters testified at the House hearings, with some admitting that they stormed the Capitol because Trump instructed them to "fight like hell" or they wouldn't "have a country anymore." The words inspired some of the rioters to act, as they told Congress under oath.

Trump's words at the rally could be protected under the First Amendment, which is why the committee has worked for months to try to show that the former president took other action that day that led to violence.

If charges are filed, the prosecution will likely examine Trump's actions preceding and during the riot. Many of his actions surfaced during the committee's hearings throughout this year when key witnesses testified about other acts by Trump that allegedly directly led to the violence.

If the Department of Justice decides to charge Trump, Gardner said the arguments will be "difficult to prove."

Update 12/21/22, 1:11 p.m. ET: This story was updated with comment from Jim Gardner.