Yesterday I discussed the argument that Donald Trump lacked criminal intent when he tried to overturn the results of the 2020 election because he was acting in “good faith.” Trump’s lawyers have been floating another defense in the media, that he was simply exercising his right of free speech. The latest indictment is constitutionally invalid because it “criminalizes speech.” I find this argument even weaker than the first.
Even citizens with only a casual familiarity with the law should notice that not all forms of speech are constitutionally protected. Among those that are not protected are incitement to riot, defamation, and lying to the FBI. Speech is also illegal if it is a means to perpetrate a fraud. Lying about one’s financial condition is not in itself a crime, but it becomes one if the aim is to evade taxes, obtain a bank loan, or solicit investments or charitable donations under false pretenses. (Donald Trump has had some problems in these areas too, but that’s another story.)
The former president’s indictment for conspiring to overturn the election acknowledges that he had the right to say that he won, as well as to pursue legal means to prove it, such as investigations, recounts and lawsuits. What the indictment charges him with is resorting to fraudulent means when these legal means failed for lack of evidence. Asking the Justice Department to investigate allegations of wrongdoing was legal. Trying to get Justice to send a letter to the states claiming that the department had found voting irregularities it really hadn’t found was not. Asking a state official to conduct a recount was legal. Asking him to find the number of votes Trump needed was not. Having alternative electors standing by in case a recount changed the outcome was legal. Having fake electors file affidavits claiming to be the certified electors was not. Asking Members of Congress to debate the legitimacy of electors was legal. Insisting that the Vice President accept the fake electors instead of the real ones was not. The entire criminal conspiracy was implemented by means of speech!
In the end, our democratic elections are legal proceedings regulated by many laws. All citizens are entitled to their opinions about them. But once all the legal processes have run their course, all candidates and their supporters have to abide by the outcome. That means refraining from using speech to perpetuate unsupported allegations and pressure people to take illegal actions. Only people who want to place themselves above and beyond the law refuse to recognize any boundaries on their speech. The indictment is not criminalizing free speech, but simply enforcing a distinction between legal and illegal speech that is essential to the rule of law in a democratic society.
Beneath the Surface 