Donald Trump can’t hide behind the First Amendment. Free speech isn’t license to lie | Opinion
Many supporters of Donald Trump and his co-conspirators are arguing that the pressure the indicted defendants put on election officials to reverse the results of the 2020 presidential election, and their specific false statements about the casting and counting of votes, are protected by the First Amendment. They are wrong.
There is some protection in the First Amendment for false speech, but only up to a point. When Trump and his supporters started urging election officials to change election results, and when they did so by making specific false statements about votes being improperly cast and counted, they left the protection of the First Amendment and became subject to criminal and civil laws.
One of the main purposes of the Bill of Rights is to protect American democracy, which requires the unimpeded conduct of free and fair elections. Accordingly, the First Amendment affords the government broad latitude to restrict improper interference with free and fair elections, even if the interference is done with speech.
It is one thing for Trump and his supporters to say publicly that they think the 2020 election was “stolen.” But it is quite another thing, under the First Amendment, when Trump and his supporters directly pushed the election officials themselves to interfere with results, and did so with specific statements falsely alleging the illegitimate casting and counting of votes. Disgruntled candidates with theories of voter fraud are entitled to seek vote recounts and to challenge elections in the courts, as well as to complain publicly about so-called “stolen” elections. But making specific false statements to the people implementing the election process, and putting pressure on them to change election results, directly interferes with the election officials doing their essential jobs and therefore is not protected by the First Amendment.
There are many laws, including criminal laws, that punish people for impeding and making false statements to governmental entities charged with doing the people’s work. These laws do not violate the First Amendment. For example, it is a crime to impede or lie to the police and the Federal Bureau of Investigation when they are investigating possible crimes. It is a crime to lie under oath when testifying in a trial or a legislative hearing. These criminal laws do not violate the First Amendment rights of the defendants because they are justified by other important state needs, such as the investigation of crimes by police, or the determination of justice by the courts or the effective operation of state and federal legislatures.
Conducting elections is just as important a government function as these others, and lying to and pressuring election officials who are conducting elections is no more protected speech under the First Amendment than lying to and pressuring the police, judges, juries, or state or federal legislators, when they are doing their jobs.
The improper actions alleged by the United States and the State of Georgia against Trump and his co-conspirators go to the heart of what the First Amendment protects – the ability of the American people to hold free and fair elections. When this fundamental value of the First Amendment is weighed against the value of allowing people to influence election officials unduly with specific false statements, the need to protect the democratic process will and must always prevail, as a matter of First Amendment law.