“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.”
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.