Will Trump's First Amendment Right Implode Jack Smith Jan. 6 Case?

The Justice Department's second indictment against former President Donald Trump has raised questions about whether or not the charges related to his role in the January 6 Capitol riot infringe on his First Amendment rights.

Special Counsel Jack Smith announced four felony charges against Trump on Tuesday, including three conspiracies and one count of obstructing or attempting to obstruct an official proceeding. In a 45-page indictment, federal prosecutors argued that Trump continued to lie about winning the 2020 presidential election, despite knowing that he lost to Joe Biden.

"These claims were false, and the Defendant knew that they were false," the indictment read. "But the defendant repeatedly and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election."

Because the First Amendment is neutral when it comes to the content of the speech it defends, free speech is generally protected even if that speech is false or dishonest. So, some have argued that Tuesday's indictment lacks standing since the new charges against Trump center on the claim that he won the 2020 election.

Alan Dershowitz, a constitutional lawyer who served on Trump's defense team during his first impeachment, told Newsweek that the First Amendment is a sound argument for the former president to invoke "unless the government can prove beyond reasonable doubt that he actually knew and believed he had lost fairly."

Legal attorney Jonathan Turley agreed, saying that while he found the Justice Department's first indictment against Trump in the Mar-a-Lago confidential documents case to be "strong and well-supported," the second indictment lacks legal support and evidence.

"The implications of this filing for free speech are chilling," Turley told Newsweek. "If allowed to stand, the government could arrest any politician who fails to adhere to 'the truth' as laid out by the government."

"Smith admits that politicians are protected in making false statements but then says Trump can be prosecuted because he failed to yield to the truth," Turley said. "While Smith could still flip witnesses or offer new evidence, this was a 'speaking indictment' that said little."

Turning Point USA Founder Charlie Kirk went even further to argue that it's not just the right to speech that Trump is guaranteed by the First Amendment, but also "a right to petition the government for redress of grievances."

"Now, Jack Smith wants to criminalize the act of contesting an election through the courts and by lobbying legislators," Kirk tweeted.

Although some argue that Trump has a strong First Amendment defense, others say that nothing in the indictment uses speech that the former president made over social media or at press conferences as evidence of the charges, but rather the actions he took to validate his election fraud claims.

"The First Amendment protects speech, not conduct," former federal prosecutor and president of West Coast Trial Lawyers Neama Rahmani told Newsweek. "There are some instances where conduct can be expressive conduct, such as burning the flag, but fake electors are not expression."

Palm Beach County State Attorney Dave Aronberg said Smith anticipated Trump and his allies arguing a free speech defense, "which is why he took great pains to explain the Indictment was less about Trump's words than about his actions."

"For example, the First Amendment doesn't allow you to send a slate of fraudulent electors to attempt to obstruct the counting of the votes," Aronberg told Newsweek.

Richard Serafini, a former Department of Justice Criminal Division Senior Trial Attorney and criminal defense attorney, agreed, saying that although federal prosecutors told Trump he was obligated to those free speech rights, they said he did not have the right to enter into a conspiracy.

"The indictment says that the former president had every right to make any statements he wanted to and to basically falsely say that the election was fraudulent and that he really won, that he had every right to go to court and press his legal issues," Serafini told Newsweek.

"The type of thing that is in the indictment is talking about the fact that on the morning of January 6, he and other unnamed co-conspirators addressed the folks at the rally, but it's not to say that the speech was in any way actionable," he said. "It was to say that there was an encouragement for those people to go to Congress and frustrate the actions of Congress."

Former federal judge Michael Luttig also told CNN's Anderson Cooper that the free speech defense is not a valid argument.

"The former president does not have a First Amendment defense of any sort to the specific charges that have now been lodged against him by the grand jury and Jack Smith," Luttig said on Twitter.

Responding to journalist Robby Soave's tweet questioning whether the indictment gets "into the territory of criminalizing free speech," attorney Andrew Fleischman tweeted. "The First Amendment does not permit prosecution merely for lying about something. But telling elected officials to toss out people's votes, using the power of the presidency, is a lie for material gain. And it is speech integral to a crime."

"Under Robby's theory of law, we would have to open the prisons and let a lot of dangerous criminals back on the streets," Anthony Michael Kreis, a law professor at Georgia State University, added.

Update 08/02/2023 1:29 p.m. ET: This story was updated with comments from Dave Aronberg.