Making History in the Wrong Way: The Second Trump Indictment is a Threat to Free Speech

Below is my column in USA Today on the second indictment of former President Donald Trump. While many are celebrating the charges, the implications for free speech are chilling. While Smith did not charge incitement or insurrection (or seditious conspiracy), commentators (and Smith) portrayed the case as holding Trump accountable for the actual riot in the Capitol. Notably, the same pundits and politicians previously insisted that the rejected crimes were obvious and well-established. Indeed, Trump was impeached on incitement charges. They are now shrugging off the conspicuous omission of those charges while attacking those of us with free speech concerns as apologists.

Here is the column:

Special counsel Jack Smith made history on Tuesday.

It wasn’t just the federal indictment of a former president. Smith already did that in June with the indictment of Donald Trump on charges that he mishandled classified documents.

No, Smith and his team have made history in the worst way by attempting to fully criminalize disinformation by seeking the incarceration of a politician on false claims made during and after an election.

The hatred for Trump is so all-encompassing that legal experts on the political left have ignored the chilling implications of this indictment. This complaint is based largely on statements that are protected under the First Amendment. It would eviscerate free speech and could allow the government to arrest those who are accused of spreading disinformation in elections.

In the 2012 United States v. Alvarez decision, the Supreme Court held 6-3 that it is unconstitutional to criminalize lies in a case involving a politician who lied about military decorations.

The court warned such criminalization “would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.”

That precedent did not deter Smith. This indictment is reminiscent of the case against former Virginia Gov. Bob McDonnell. His conviction on 11 corruption-related counts was unanimously overturned by the Supreme Court in 2016, with Chief Justice John Roberts writing that federal prosecutors relied on a “boundless” definition of actions that could trigger criminal charges against political leaders.

Smith is now showing the same abandon in pursuing Trump, including detailing his speech on Jan. 6, 2021, before the riot while omitting the line where Trump told his supporters to go to the U.S. Capitol to “peacefully” protest the certification.

While the indictment acknowledges that candidates are allowed to make false statements, Smith proceeded to charge Trump for making “knowingly false statements.”

On the election claims, Smith declares that Trump “knew that they were false” because he was “notified repeatedly that his claims were untrue.”

The problem is that Trump had lawyers and others telling him that the claims were true. Smith is indicting Trump for believing his lawyers over his other advisers.

I criticized Trump’s Jan. 6 speech while he was still giving it and wrote that his theory on the election and the certification challenge was unfounded. However, that does not make it a crime.

If you take a red pen to protected free speech in this indictment, it would be reduced to a virtual haiku. Moreover, if you concede that Trump may have believed that the election was stolen, the complaint collapses.

Smith also noted that Trump made false claims against the accuracy of voting machines in challenging the outcome of the election. In 2021, Democratic lawyers alleged that thousands of votes may have been switched or changed by voting machines in New York elections. Was that also a crime of disinformation?

Smith indicted Trump because the now former president “spread lies that there had been outcome-determinative fraud in the election and that he had actually won.” The special counsel also says Trump “repeated and widely disseminated (the lies) 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.”

Let’s acknowledge that Trump was wrong. The election wasn’t stolen. He lost, and Joe Biden won.

But how do you prove legally that Trump truly didn’t believe his false claims? And even if you can prove that Trump lied, how do you legally distinguish his falsehoods from the lies other political leaders have told over the years? When, in politics, does making a false statement cross the line into criminal behavior? Those are questions Smith and his team must answer in court, and ones that Trump’s defense team is likely to raise.

Polls previously showed that roughly half of the public viewed earlier charges against Trump as politically motivated. That is why many of us hoped that any indictment would be based on unquestioned legal authority and unassailable evidence.

Smith offered neither. This indictment will deepen the view of many in the public that the Justice Department is thoroughly compromised in pursuing political prosecutions.

These concerns were magnified Tuesday by Smith, who announced the charges with comments that made him sound more like a pundit than a prosecutor. The special counsel gave an impassioned account of the Capitol riot that made it sound like Trump was charged with incitement. He wasn’t. Nor was he charged with seditious conspiracy, despite his second impeachment on those charges.

Notably, many of the legal experts praising the indictment previously insisted that there was a clear case for incitement against Trump. Indeed, Democratic members made the claim the center of the second impeachment, despite some of us writing that there was no actionable claim.

Even Smith wouldn’t touch the incitement or sedition claims that were endlessly pushed by legal experts and Democratic members.

Instead, Smith will seek to criminalize false political claims. To bag Trump, he will have to bulldoze through the First Amendment and a line of Supreme Court cases. That’s why this latest indictment of Trump isn’t just wrong. It is reckless.

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley

499 thoughts on “Making History in the Wrong Way: The Second Trump Indictment is a Threat to Free Speech”

  1. Anonymous
    “John Say’s confusion and delusion never fails to be hilariously entertaining.”

    You are either unwilling or unable to make an actual argument.
    So all we get is this weak ad hominem where you insult me without even identifying what you claim is error.
    or confused, or delusional, or hilarious.

  2. Anonymous
    “You’re 100% wrong on everything. All you’re doing is repeating crazy right-wing conspiracy theories that have been proven false.”

    Then it should be very easy for you to demonstrate that using actual facts.

    Be my guest.
    I am waiting.
    Demonstrate actual error on my part on anything and I will correct whatever I have said that is incorrect.
    I have not had to do that often – I check the facts before I post.
    But I have on rare occasions made errors, and when that has been demonstrated – I have corrected my remarks.

    You do not even have the courage to name what you beleive is an error.

    You do not have the courage to post even under a fake name.

  3. Anonymous
    “It hasn’t been proven.”
    When the facts are against you – pound the law.
    When the law is against you – pound the facts.
    When the law and the facts are against you – pound the table.

    Anonymous – you are pounding the table with great vigor.

    You are under the delusion that saying things makes them true.

    Some things have been proven BEYOND ANY DOUBT AT ALL.
    The FBI and DOJ and DHS and other Govenrment agencies engaged in political censorship during the 2020 and 2022 elections.
    That is unlawful, that is unconstitutional, that is election rigging. PERIOD.

    There is ZERO doubt that it occured. Very few even on the left are trying to argue that did not occur.

    And that is ONE of Dozens of assertions that the left has claimed were right wing conspiracy theories that have gone from strong assertions to highly likely and in many instances to absolutely certain.

  4. There is nothing in the Constitution saying it is a crime for politicians to tell lies, even if those lies unintentionally inspire violence. Otherwise, Joe Biden and Kamala Harris would be serving life sentences in San Quentin.

    On the issue of whether the 2020 election was stolen from Trump, it most certainly was. Beginning immediately after the 2016 election, the federal government and Big Tech began a non-stop effort to censor conservatives. Across the country, leftists wove an elaborate tapestry of lies about a non-existent conspiracy between Trump and Russia. On an every-day basis, the brazenly corrupt, anti-Trump news media covered up Joe Biden’s screw-ups and crimes. In a breathtaking display of hutzpah, House Democrats impeached Trump, because he asked Ukraine to investigate the widespread Biden corruption in that country. The DOJ got in the habit of throwing Trump supporters in jail right and left. And, right before the 2020 election, the FBI and the intelligence community suppressed publication of the Hunter Biden laptop story.

    Taken together, these sleazy and often illegal actions served to suppress votes for Trump in 2020.

  5. Though the Left is none too clear, apparently “the real crux of this case” (the allegedly illegal *actions* of DT’s) is his request that certain state legislatures appoint alternate electors.

    Let’s go with that (at least for today):

    Name the federal law that makes it a crime for a politician to request that a state legislature appoint alternate electors.

    Then name the federal law that makes it a crime for a state’s constitution or election rules to include the concept of “alternate electors.”

    Let me save you the time. There are no such laws. Further, a request is not *action*.

    Here’s where the Left replies:

    But to get those electors appointed, Trump deceived, lied, defrauded . . . In other words, he expressed his opinion that the election was rigged. Whether you agree or disagree with his opinion is irrelevant. He exercised his right to free speech.

    No matter how much hand-waving and misdirection the Left engages is, this indictment comes down to criminalizing dissent.

    1. And yet Jack shit doesn’t name the 23 ags and the 126 congressmen intervenes as co-conspiritors? What gives ..Trump was only suppose to listen to the cisa dude? And if he didn’t he lied? Meanwhile the state of Texas cisa dudes had rejected dominion….over security? This is totally deep state.

  6. I used to think Jonathan Turley was a decent human being. No more. His deliberate misreading of traitor Drumpf’s indictment says it all. What a disappointment.

    1. I’m sure he is at home. Contemplating suicide because of your post. But accept my gratitude for your thoughtful insights. What would this blog be without the morning lefty crying in his coffee

  7. From the indictment:

    “Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results.”

    What *actions* of DT’s were allegedly “unlawful?” And what, exactly, is the federal law that defines those *actions* as criminal?

    “[T]hese conspiracies—which built on the widespread mistrust the Defendant was creating through *pervasive and destabilizing lies* about election fraud . . .” (Emphasis added)

    “Pervasive and destabilizing (whatever the hell that means) lies” is a smear description for Trump’s ideas, opinions, arguments — for his *speech*. In other words, JT is correct.

    A federal indictment is not supposed to be an exercise in Leftist hand-waving.

    1. It’s not an exercise in hand-waving. If you simply continued reading, he addresses your questions in the section titled “Manner and Means.”

      1. he addresses your questions in the section titled “Manner and Means.”
        Pleadings in an indictment are not law.

        Smiths indictments have been shown to be crap in three different reversals. One by unanimous decision. Scolded by the Chief Justice for stretching federal statutes into indictments that did not apply.

        Even Anthony Blinken wrote a letter admonishing the administration for political persecution of political rivals.

    2. They are bogus charges brought by a corrupt DOJ before a biased judge with intent to obtain a wrongful conviction that won’t be overturned by the Supreme Court until AFTER the 2024 election — thus wrongfully influencing the election.

      And it’s even possible that democrats will pursue their court-packing plans such that the composition of the Supreme Court will be altered before the wrongful conviction can be overturned.

      That’s the shortest synopsis I can provide.

  8. The second federal Trump indictment is NOT a threat to free speech. As SCOTUS held in United States v. Williams (2008), “offers to engage in illegal transactions are categorically excluded from First Amendment protection.” The fake electors scheme was an illegal transaction. The effort to pressure Pence into acting unconstitutionally was an illegal transaction. This speech isn’t protected.

    1. “The fake electors scheme . . .”

      Don’t you love how the Left bakes a “crime” into its description. Just like it plays deceptive games with the disgusting description: “gender-affirming care.” Or “fact check.”

      If the Left were objective, it would use the factual description: alternate electors. And if it were motivated by the rule of law, it would acknowledge that neither their existence, nor a request to appoint them, is illegal.

      1. The fake electors have already been charged in some states. That you believe the crimes with which they’re charged not to be illegal suggests that you’re either unaware of this or are simply going to ignore it.

    2. Nonsense. Suddenly, you love Scalia because you found some duplicitous leftist hack lawyer who posted the crap you spoke of. And you repeat the crap here, disembling with the false application of the Williams (2008) case.

      You make the conlusory, ipse dixit claim that the “fake electors scheme was an illegal transaction” in the same way that transacting in child pronography is an illegal transaction.

      No transacting in child pornography is an illegal act. For example, former Democat mayor Patrick Wojahn recently pleaded guilty to 60 counts of distribution of child pornography, 40 counts of possession of child pornography with the intention to distribute, and 40 counts of possession of child pornography. Those were clearly illegal acts committed by a Democrat.

      But, not surprisingly, you fail to explain how Trump’s suggestions regarding electors constitutes an illegal transaction. Nor do you offer a scintila of evidence demonstrating how what Trump said or did was an illegal transaction.

      Of course, Smith doesn’t explain how Trump’s statements constitute an illegal transaction either. As the old saying goes (with my revision), “When the law is on your side, argue the law; when the facts are on your side, argue the law; when neither is on your side, blow smoke; and when you have no smoke, lie your ass off.”

    3. Oh ATS, you poor, deluded soul

      “The effort to pressure Pence into acting unconstitutionally was an illegal transaction.”

      The SCOTUS ruled that Biden’s student loan forgiveness “conspiracy” and “action” were unconstitutional. When is going to be indicted by Jack the Hack?

  9. Jack Smith was always going to indict Trump for Jan 6. Its in the scope letter. The outcome was determined before the investigation.

    CBS is reporting Smith asked for documents that he already had. Those documents are the exculpatory evidence.

    “They bear directly on the essential element of whether Rudy Giuliani, and therefore Donald Trump, knew that their claims of election fraud were false,” Parlatore said. “Good- faith reliance upon claims of fraud, even if they later turn out to be false, is very different from pushing fraud claims that you know to be false at the time.”

  10. What most honest hardworking people want, I suspect, is for this country to return to some sanity. Government should be like plumbing, when it is doing its job, you don’t think about it.

    What we are witnessing is a domestic dispute that is irrational and spiraling out of control being perpetrated by insane politicians and power mongers. Yes, they are insane.

    Both sides have dug in and any semblance of problem solving has been thrown out the window. That is not good for this nation.

    Isn’t it interesting to watch the present administration and its allies are screaming when the spotlight has been turned on them? If they stand on truth, true truth, then they have nothing to fear.

    I also suspect that the activists who are manipulating the current narrative are a very small minority, but they are making the most noise.

  11. Daria while your remarks are in error on a number of points,

    Ultimately even that does not matter.
    If everything you claimed was correct – it is STILL not a crime.

    There is no crime of “criminal intent” Crimes are acts. Generally acts of force or violence.
    Smith did not allege incitement – because he can’t.
    Your argument is that Trump tried to dance on the edge between actual incitement and legal speech but crossed the line.
    Without an actual charge of incitement that argument is garbage.

    As Prof. Derschowitz noted – by the legal theory Smith is pushing – if Trump is elected, Smith can be prosecuted and convicted for this indictiment – it is easily arguable as an attempt to commit election fraud. AND the indictiment contains lies by ommission.
    Buy Smith’s own standards he has committed a crime.

    These problems are common place with this left wing nut lawfare garbage.

    The law MUST be read narrowly, Doing otherwise not only makes everyone a criminal, but as in this case makes the prosecution of crimes crimes themselves.

    This is the kind of problems you will ALWAYS get when you try to read the law broadly.

    Is this indictment horribly afoul of the first amendment – without the slightest doubt.
    Prof Derschowitz does not think it will survive its first encounter with the Supreme court.
    I do not know that he is correct. The supreme court does not NORMALLY step in before a trial and conviction.
    But there is ZERO doubt this will not survive its LAST encounter with the supreme court.

    1. lol – Good Luck with that

      ” As Prof. Derschowitz noted – by the legal theory Smith is pushing – if Trump is elected, Smith can be prosecuted and convicted for this indictment …”

      The Government operates under the Theory of Double Standard(s). Especially this One. Further it is a necessity for Governments to operate with Double Standard(s). There would be no cohesion, Social Contract, were it be absent. Someone/thing will always be on the opposite-tack, aggrieved, thus breaking the Contract.

      Double Standard
      dou·ble stand·ard
      noun: double standard; plural noun: double standards

      a rule or principle which is unfairly applied in different ways to different people or groups.
      “the prolonged consideration of the issue represented a double standard”

    2. Dershowitz hedges in his analysis. At one point he says that it is impermissible to criminalise political lies. But later he says that Smith will need to prove that Trump knew the election wasn’t stolen, which he won’t be able to do.

      The harder argument to make here is that even if Trump knew his arguments were false, he nonetheless did not commit a crime in making them. That is what I believe.

      There are three kinds of falsehoods Trump is alleged to have known about:

      1. False constitutional theories. Eastman argued that Pence had powers most scholars think he did not have, for example. Even if Trump believed Eastman was wrong, it is not a crime for him to have tried to persuade Pence that he was right. Pence was not persuaded.

      2. False details. Trump was told that the evidence contradicted his assertion that a lot of dead people voted, for example. Trump nonetheless persisted in pressing this argument. In the absence of evidence, officials were not persuaded to act.

      3. False overall conclusion. Trump was told there was no evidence of outcome-determinative fraud in the election overall. Trump continued to argue that fraud nonetheless was perpetrated to steal the election. In the absence of evidence, officials were not persuaded to act.

      The indictment does not say Trump falsified records to bolster his claims. Or that he ordered the military or others with actual power to obstruct proceedings or alter results.

      All he did was make arguments to those in authority. Even if he knew those arguments were false, where is the crime?

      Of course, in the end Smith will have to prove that Trump knew beyond a reasonable doubt that his arguments were false, which will be difficult, and in my view impossible in the case of Eastman’s legal theories, which though likely wrong have never been held to be so.

      It now emerges that Smith is seeking a gag order regarding exculpatory evidence Trump will obtain when the Government turns over evidence. Given that the statements made in this indictment about what Trump is alleged to have known are significant in the ongoing political campaign, so is exculpatory evidence. Trump should not be precluded from publishing exculpatory evidence he obtains from the government to counter the political impact of the indictment’s allegations. A gag order in this context would be a severe first amendment violation. If one is issued it should be appealed.

      1. Smith claimed that Trump knew his claims of outcome-determinative fraud to be false. But Smith didn’t claim that Trump knew Eastman’s argument to be false.

        And gag orders re: evidence are fairly routine, not First Amendment violations.

        1. This indictment is hardly routine, and precluding the release of exculpatory evidence in the context of the political campaign would be a first amendment violation in my view.

          So what in your view is the crime involving Eastman as a co-conspirator?

          1. Sorry, I wasn’t distinguishing between protective orders and gag orders. The latter are less routine than the former, though still not that uncommon. At any rate, it’s up to Judge Chutkan to determine what to order, and Trump can appeal if he disagrees.

            Eastman is Co-conspirator 2, and a text search on that phrase will help you find everything he was involved in. The paragraphs that mention him are referenced for all 4 crimes: 18 U.S.C. § 371, 18 U.S.C. § 1512(k), 18 U.S.C. §§ 1512(c)(2), and 18 U.S.C. § 241.

            1. But what did he do apart from providing legal advice, and assist in developing a strategy consistent with that?

              1. Again: search Trump’s indictment on the phrase “Co-conspirator 2” to read what Eastman did. Presumably, if Eastman is later indicted, additional evidence will be described in that indictment.

                If you want to understand Eastman’s problematic conduct, two additional places to look are at Judge Carter’s ruling allowing a crime-fraud exception in Eastman’s attempt to keep documents from the J6 Committee ( ) and at reporting on the hearing about whether Eastman will be disbarred in CA.

  12. Barr sought to be AG to purge the politicization from DOJ and FBI.

    He Failed miserably.
    I am not particularly interested in What Barr has to say.

    Further I do not need either Barr or Turley to understand that Smith has failed to indict for a crime.
    That this IS free speech.

    Worse still it is by far the most protected form of free speech in existance – political speech.

    Prof. Derschowitz not only expects this case will die very quickly the moment it reaches the supreme court – and that it likely will reach there rapidly. but that it could well take the rest of the Trump cases with it.

    I am not sure that Derschowitz is correct – in the short run.
    He is absolutely correct in the long run. There is no chance that Smith gets a conviction that will hold up on appeal.

    This is actually a far WORSE free speech violation than the Stolen Valor case that Turley cites.

    There are claims that this indictment has given Trump another Boost. I think it is early for that.
    I doubt it has hurt.

    But I was shocked to find that 65% of people polled recently by Rasmussen think that J6 was orchestrated by the Feds.
    While I do believe that the Feds have involvement that must be made public. I do not believe they orchestrated J6.

    Regardless, you are losing the people.

    You can fool all of the people some of the time.
    You can fool some of the people all of the time.
    You can not fool all of the people all of the time.

    Those of you on the left might want to re-read the story about the boy who cried wolf.

    1. “You can fool all of the people some of time; you can fool some of the people all of the time, but you can’t fool all the people all the time.”–Abraham Lincoln

      “Lincoln was right, but two out of three ain’t bad.”–Merrick Garland

  13. Prof. Turley
    “Let’s acknowledge that Trump was wrong. The election wasn’t stolen. He lost, and Joe Biden won.”

    Lets not acknowledge things that are not true.

    Trump may or may not prove correct in the specific claims he has made regarding HOW the 2020 election was stolen.
    But we are past the point were one can credibly claim Joe Biden won a free and fair election.

    Voters were denied Truth. The media supressed it, social media supressed it, Democrats suppressed it.
    All that is bad enough – but we tolerate bias in the press and private censorship not because it is good, but because government attempting to control it is worse.

    If the media and social media censorship of the truth was the the only issue in 2020 – that would still be a stolen election – though not one stolen in a way that we are entitled to a remedy for. The very freedoms your article rests on require that we rant and rave but still tolerate private censorship – so long as we are free to find other sources of information.

    But that is NOT the extent of the censorship of the 2020 election. We now KNOW with ZERO doubt that Government – the DOJ/the FBI DHS all coerced even more political censorship than even left wing nut social media would have done on its own

    That is election rigging by government. That is election fraud. That is a stolen election.

    But worse still – those would would do that would also do everything else Trump has claimed.

    Finally I would note that The least likely of Trump’s election fraud claims – that the voting machines were rigged STILL has not been disproven.

    Finally, Smith’s indictment and YOUR article seem to presume that you can criminalize knowingly false political speech.

    BZZT,. Wrong. Not only don’t we know Trumps state of mind, IT DOES NOT MATTER.

    The only constitutional remedy for disinformation is more speech.

    You seemed to understand that with your reference tot he “stolen valor” cases, but you lost your grasp of that in the rest of your article.

    This indictment is a massive mistake.
    As Prof. Derschowitz pointed out – the legal reasoning of this indictment would allow Trump to criminally prosecute Smith should he win the election for lying by omission in his indictment.

  14. Anonymous

    Do you actually think about what you write before you do so ?

    Do you have any requirement of yourself that your remarks have any connection to the truth or reality.

    Please read my actual posts. Your comment either means you have not read them. or that your reading comprehensions skills are abysmal.
    Some of Joe Biden’s conduct is criminal – most of it is just Bad.

  15. Anonymous
    Bribery is an actual crime – as is extortion. They are not merely things I do not like.
    They are things that have been accepted as crimes for all of human history.

    There are lots of things about the Bidens that I do not like – that I do not claim are crimes.
    There are lots of things I am critical of the Bidens regarding – that are not crimes.

    I have repeatedly here on this blog cautioned those who keep bandying arround claims of Treason with respect to the Biden’s
    I do not like the conduct of the Biden’s – but it is NOT treason .

    There are lots of reasons that a rational person should never vote for Joe Biden that are not crimes.

    If you are going to attack me alleging hypocracy – I would suggest that you should be familiar enough with my posts to know what you are talking about – otherwise you just make a fool of yourself.

    There has always been more than enough evidence of Biden’s corruption that nor one should have voted for him. There has been enough evidence to reach the threshold to impeach since before he was elected. But it is only recently that the evidence has reached the threshold necessary to criminally convict Biden.

    And no I do NOT cry crime everytime Biden’s name comes up.

    While we have reached the threshold at which Joe Biden is really inarguably criminally culpable of past criminal political corrption, that is NOT my primary problem with Joe Biden. If he was a good president – there would be a high tolerance for his past criminal corruption.
    But he is an abysmally poor president.

  16. The Constitution allows politicians to lie. If it did not, the city of Washington, DC, would be a ghost town. And, by the way, Trump did not lie. The 2020 election was stolen through various means, such as the Russia hoax perpetrated by Hillary Clinton, the DOJ, and Congress, the never-ending arrest of Trump associates, the widespread censorship of conservatives by federal agencies, BIg Tech, and the mainstream news media, the impeachment of Trump for asking the president of Ukraine to look into bribery allegations against the Biden family, which of course, were 100% true, and the cover-up of the Hunter Biden laptop—which would have been politically damaging to Joe Biden—just before the election.

  17. Darren,

    I do not know what is going on – but this is getting truly annoying.

    There are several anonymous posters that it is virtually impossible to reply to directly. This has been an issue for several months.

    It is coming close to converting certain anonymous posters into a protected class – one that can post whatever they wish and no one can directly reply to them.

    I can not immaging that is Your or Prof Turley’s desire.

    I am a stronger advocate for Free speech than even Prof. Turley.

    But if you are not going to allow replies to anonymous posters – then do not allow anonymous posters.

    1. John B. Say,

      Can you let me know what platform you are using when this manifests itself? I.e.: Using the WordPress REader / / via E-Mail / or other method.

      If you could talk me through how to reproduce the problem that might give me some more information that I can work on.

      1. I receive notice of posts here via email.
        I use my email client to filter the posts that I am interested in replying to.
        I respond to those by clicking reply in the email.
        That takes me to a browser and a reply box to the specific post I am responding to.
        The browser is usually brave, but sometimes Google Chrome – I get the problem in Both
        As well as Firefox which I just tried. Though I do not normally use.
        Amd I just tried the same thing from my iphone using apples email client and safari as the browser – same problem.
        I NEVER have problems replying that way to posts by named posters.
        I have NEVER had problems responding that way in the past even to anonymous posters.
        Recently – the past several months I get a message that says

        “Sorry, replies to unapproved comments are not allowed.

        « Back”

        about 60% of the time when I reply to anonymous posters.
        The quoted portion is a cut and paste from an attempt to post a test reply to an anonymous post

        Below is a copy of the link that I made of the link the reply button in my email client is tied to


        I do NOT get it 100% of the time.
        I am NOT certain but I suspect that it is only one or two specific anonymous posters.

        Regardless, pretty much anytime you see me post outside of a thread and I address the post to anonymous,
        That is because when I replied to that poster, The reply failed with the afore mentioned error.

        The only way I have arround this has been to cut my reply, Got to the main article. Select comments and paste my reply into an out of thread response.

        1. John B. Say, the reason why replying to those anonymous posters is because they are being actively censored. You’ve noticed none violate the civility rule and Darren doesn’t address the “problem” directly. He needs to either admit they are being deleted for a reason or admit two posters are banned. The deletions are disruptive and demolish legitimate debates. Completely contrary to Turley’s claims of being a free speech absolutist.

        2. John B. Say,

          I suspect I found out why you are having issues. The matter stems with what happens to comments that are deleted after your mail client receives them and you post a reply to those deleted comments–where your mail client receives the comment, it is deleted sometime after that but it is still of course visible on your mail client. But when you reply to it as it is visible on your mail client it is not longer available on the professor’s site and so WordPress doesn’t permit you to reply to it since it was deleted.

          There are three main resons that users’ comments are deleted: The comment was posted by a person who’s posting privilege was revoked; comments that violate the civility policy; and comments that were later requested to be removed by the author.

          On the topic of Anonymous Users, anonymous posters are not accorded any different account settings than
          anyone else. What you are probably experiencing is that you are replying to
          a user who had at some point their comment removed. It is more likely to
          happen if using email to reply and not the standard webpage which if the
          comment is deleted, it disappears immediately. 98% of these comments that
          were deleted were sent by individuals who have had their comment posting
          privilege revoked, and as a consequence of this revocation any comments
          posted here by them are summarily deleted when they are found. About 2% of
          comments were removed for Civility violations. Most of the time
          they comment using anonymous identities or credentials having neither
          provenance nor history.

          Another issue is the design of the WordPress software is for whatever their system designers
          have intended that replies to comments that are removed (in other words
          orphaned children in a threaded model) simply do not show. That is by
          design by WordPress, or at least a Won’t Fix. The proper method would have
          been if a parent comment is removed then the system will promote the removed
          comment’s children up one level. The ability to fix this is not within my
          or our host’s ability as it is their code not ours. I sympathize but there
          is nothing we know of that can be done on our part.

          Not all anonymous comments come from banned users, but most banned users use
          anonymous or fake user credentials to post. (of course they often play the victim
          here, but it was their own bad behavior that led to this happening.)

          So if you find a comment by a person having little provenance or an
          anonymous poster that behaves badly or might be someone who was banned
          previously, either don’t reply directly to them and post a response as such
          that it is not a reply, just a first generation comment. Not feeding the
          trolls is often a good suggestion since it invariably elicits another low
          quality comment that is yet another annoyance to others. Your good comments
          won’t become invisible or rejected by WordPress if they are not replies to those banned user comments that will in all
          likelihood just be removed.

          I know it is an inconvenience for you and very likely others who make good use of the website. An alternative might be to eliminate anonymous postings all together and require people to have legitimate login credentials before they can post. We have legitimate and good commenters who choose come here anonymously but they are given a disservice by a couple individuals who were banned for cause who continue to be a problem. But at the present the bad actors are using anonymous posts and faked user credentials to attempt to evade having their comments deleted, so it might not be worthwhile to invest time in replying to them.

          1. Darren.

            Is there something I do not understand – or do you have some means of tying anonymous posts to people who were previously banned ?

            I thought the point of anonymity was that you do not know who the poster is ?
            We afford anonymous posters no credibiltiy in return for the abiltiy to post anonymously.

            Separately many of the anonymous posts I respond to are “aholes”.
            But these are NOT posts I would have chose to censor.

            If you are banning people for being aholes – I am with Justice Brandeis. Sunlight is the best disinfectant.

            I do understand that some balance must be struck with civility or will just descend into exchanges of juvenile insults.

            I find it hard not to respond to insults with insults, or just to pure stupidity with insults.

            I try – really, but I often fail.

            But I also try very hard to macke sure that my posts always contain more argument than insult
            and to focus my insults on arguments not people.

            But back to the issue:

            The anonymous posts I have trouble responding to are WRONG.
            But they are not otherwise sufficiently uncivil that I would understand why they are deleted.

            I do understand the technical issues that you raise. I do not expect your to fix those – that is wordpresses responsibility.

            I would also ask – I am seeing this problem ALOT.

            Are there really that many anonymous posts that are being deleted ?

          2. DS:

            This is the one I don’t understand: “The comment was posted by a person who’s posting privilege was revoked;”

            If revoked, how does their comment appear, at all?

            If they sneak in because of this: “most banned users use anonymous or fake user credentials to post.” — then how is it discovered, after the fact, that the comment is from a banned user?

            I thought banned is like a “do not admit” list at a nightclub. This banned seems to be more like: Kick them out *after* they’ve entered the club.

            Thanks for your diligent attention to this issue.

          3. Darren,
            We have been through this.

            What you are saying is likely True if I am NOT replying to an anonymous top level post.

            If I am replying to a top level post:
            Absent IP tracking, you can not know an anonymous post is a previously banned poster.
            A top level anonymous post that has been deleted before I replied must have been deleted because of ITS content.

            I understand that you have a difficult job.
            I am not trying to make it more difficult.

            But I am pretty close to a free speech absolutist.
            If it is not illegal, violates copyright, spam, and does not personally insult Prof. Turley – I would leave it.

            Separately it is really annoying to click on the reply button in an email – get a reply box to an aparently already deleted post – WP should really fix that. It OBVIOUSLY knows the post has been deleted – because AFTER crafting my reply and hitting post THEN WP tells me i can not reply.

            This is worse when there was nothing in the post I replied to that was more offensive than the normal left wing tripe.


            I DO NOT WANT YOUR JOB.

      2. Darren, you could just make every “Anonymous” poster take an actual name so they could remain “anonymous” and yet we could ignore the one particular “Anonymous” that is commenting 200 times day. Why can’t you require a particular name as does every other site? Thank you from a person that loves this site, appreciates Professor Turley and all the work his staff does, including you.

        1. Hullbobby, I’ll take your suggestion up the line and if decided to implement it we will.

          THank you.

        2. Certainly an anonymous and consistent nom de plume; one that loosely identifies the source for the purposes of commenting on the Turley Blog.

      3. Darren,

        I “subscribe” to posts,
        I get pretty much all posts vial my email client – evolution. I am an embedded linux software developer so I use linux as my desktop. I use the search and finter tools to sort out those posts I might have some interest in responding to, or those articles i wish to comment on. I probably get abit under 1000 emails a day from I filter out more than 90% of those.
        Fairly crudely because I do not have time to deal with more than a handful of posts.

        I use the email client to scroll throught eh culled list.
        Deleteing posts I have no interest in replying to and clicking the reply button on those I do.
        That brings up my web browser – normally brave, but I have had the problem with Chrome, Brave, Firefox, even safari on an iphone using Apples email client.

        So I respond to the post, enter my credentials and hit post, and get the error I sent you earlier.

        It is plausible that when I am responding to a post in the middle of a thread that deleting something above orphans what I am replying to. That does not explain the same problem replying to a top level post.
        It is possible that I am replying to banned posters. That does not explain the same problem replying to top level anonymous posts.

        If I can not reply to a top level anonymous post my assumption is that post was deleted because of ITS content,
        Not because the author was banned – you have not banned anonymous posts.
        And not because it is a child of a deleted post.

        I have TWO issues. The first is that for whatever reason this problem is significantly increasing in frequency.

        The second is that it appears to confirm the complaints that those on the left are being banned for things those on the right are not.

        Both are issues. I understand you do not control WP. At the same time WP KNOWS when it opens a reply box in a browser that the post I am replying to has been deleted – as they are absle to determine that when I later hit post.
        They could solve this problem by displaying an error when I START a reply to a deleted post, rather than when I am done.

        That is a frustration issue.

        The other issue is that you are arguing that by getting posts via email that I am seeing the mostly unfiltered chain – possibly after automatic filtering – like WP blocked words, spam, and multiple links. But BEFORE removing banned posters and uncivil content.

        While SOME of what I am having problems with is explainable as a child of a deleted post. And that is a WP problem.

        Top level anonymous posts that I can not reply to must have been blocked based on THEIR content.
        And I am not seeing the basis for that.

  18. Anonymous – your reply is drowning in muddy language – so I have no idea what it is you are talking.

    Regardless on issue aftrer issue – those like you on the left have been WRONG.
    Whether that is the collusion delusion, Election rigging by the federal government and the coercion/collusion of the media and social media. The Biden family corruption. Covid, on and on and on – issue after issue.

    HAs the claim that DVS rigged voting machines in 2020 been proven ? No! I would note that it also has NOT been disproven.
    Has the claim that Trump colluded with Russian been proven a HOAX – ABSOLUTELY – if you are still clinging to that – you are delusional.
    Has the the Hunter Biden laptop been proven Real ? – Pretty much.
    Have numerous crimes by the Biden’s been proven ? Yeah, pretty much. The evidence that is publicly available today is sufficient to get a bribery conviction – proof beyond a reasonable doubt in atleast 70% of the country.
    Has Ballot harvesting in 2020 and beyond been proven ? Yeah. Enough to criminally convict anyone – no, but only because the left has ACTIVELY threatened anyone who even hinted they might investigate.

    Bar associations in most if not all states are Government actors. IF ABA chapters are threatening lawyers with disbarrment over their participation in election challenges or election fraud prosecutions – that is itself Government election fraud being committed by the ABA.

    The threats to disbar Eastman or Guliania – are themselve Election fraud. Just like the efforts of the FBI or DHS or DOJ to get social media companies to engage in censorship.
    And YES those have been PROVEN. The left is not even for the most part denying it. They are just trying to pretend the First amendment is not real and that election fraud by those in government is not really fraud.

    Sorry Anonymous – but the most redneck hayseed MAGA supporter buys less “conspiracy theories” than your do, and has proven RIGHT far more often than you.

    We KNOW now – as a FACT that C19 did NOT come from the wet markets at Wuhan. it is near certain that it did come from a lab leak.
    We KNOW that Masks did not work – of course the SCIENE told us that in Feb 2020 – but public health experts and left wing nuts LIED to us – as they did about pretty much EVERYTHING about Covid.

    Again – issue after issue – election rigging, Climate Change, Covid, Biden corruption, Faux impeachments, J6, Trump indictments. Those wearing MAGA hats have been either absolutely completely vindicated, or at the very least the odds far most strongly favor their views than YOURs.

    The Hayseeds have been close to universally right, and YOU have been close to universally WRONG.

    The boy who cried wolf was eaten by the wolf on his third cry.
    Why are you still here ?
    What have you been right about ?

    Inflation ?
    Anything ?

    Whenever you think that you are facing a contradiction, check your premises. You will find that one of them is wrong”

    At what point does the massive amoutn of lies and error that you have fallen for cause you to go back and check your premises.

    Again – you are losing something like 20-0 to to those allegedly tinfoil hat MAGA hayseeds.
    At what point do you start asking yourself – why are they constantly turning out to be right and why and I constantly turning out to be wrong ?

    1. You’re 100% wrong on everything. All you’re doing is repeating crazy right-wing conspiracy theories that have been proven false.

      1. If I am wrong – then you should be able to demonstrate that with SPECIFICS.

        Exactly what am I wrong about ?
        You have completely refused to pick even a single issue and challenge ONE thing I have said.
        Instead spraying this nonsense that “You’re 100% wrong on everything.”

        Nearly all of what I have asserted is established FACT.
        Are you STILL trying to relitigate the collusion delusion ?
        Innumerable False Covid claims ?

        I have no expectation that you will EVER respond to anything with specifics.
        Because you cant

          1. And you beleive everything politicians say ?

            Bill – this is a dead issue – you lost.

            The collusion delusion is a Clinton HOAX.

            you can fool some of the people all of the time.
            That includes senators of both parties.

  19. The Founders and Framers are rolling over in their graves!

    Where in the —- are their descendants?

  20. Trump consistently stated to his followers that he had determinative evidence of wrong doing while being told behind the scenes by his advisors that there was no evidence. He used those lies to push people into doing illegal actions. Some were smart enough to say no but not all. Trump also worked with Eastman to try and supplement the legal electors with his own. You don’t have to be a lawyer to understand the indictment which was written in simple terms anybody can follow. The indictment specifically differentiated between free speech and criminal intent. Jonathon Tully is full of BS on this indictment.

    1. Daria,
      this is not an indictment of Trump.
      It is an indictment of Smith, Garland, DOJ, Biden and Democrats.

      If you beleive as you claim – defeat Trump FAIRLY at the polls, No censorship. No gaming election laws, no ballot harvesting.

      Trump’s lawyer made a very interesting argument. He noted that this indictment allows Trump something he has not had before. A trial in which he will have supeona power and the ability to gather evidence, conduct discovery and call witnesses regarding 2020 Election fraud.

      While it is unlikely this judge will allow that. It is also near certain that she will lose that issue on appeal.
      If you accuse Trump of falsely claiming the election was stolen, you can not deny him the right to the defense of proving that the election was stolen.

      I would further note that is also a reason why this is NOT going to proceed quickly.

      1. Attempts to prove the election was stolen have run i to the same problem it always had. Lack of evidence. 60 court cases worth evidence would make quick work of that. Plus the numerous ad admissions and audits by Republican election officials that the election was indeed run fair and square. That argument has been completely put to rest.

        Even Giuliani has admitted multiple times he had no evidence when confronted by judges.

        Trying to argue debunked claims is just used to delay and mire the court in pointless arguments. Jan 6 criminals have already tried to use the same arguments. Trump’s attempt will not be allowed.

        1. Attorney Turley,

          Not enough fraud to have affected the election? Just because courts are too full of whatever they make from their food to make findings, that does not effect the trurh of what happened .

          In Georgia, the election swung on one batch report, the one made after officials in Fulton County called off counting, sending observers home. We’ve all seen the video of one of the Freeman ladies putting the same ballots through the counting machine multiple times. We all heard Gabe Sterling’s Jedi-waved explanation, without supporting any of the ballot inspections needed to verify. The audits and recounts in Georgia had fake results, proven by the talky sheets that did not support the totals. Georgia is still using the courts to block those ballot inspections The ballots had been pulled out from under the skirting on a table, an illegal way to store ballots
          In Michigan, two cars loaded with ballots all marked for Biden were delivered at 3:30 am, 4 hours after the deadline for accepting ballots in that counting center. At 6:30, am, one huge batch of votes were reported, based mostly on those delivered at 3:30, and that’s how Biden won Michigan.
          In Philadelphia, Pennsylvania, no observers allowed. A mail truck with 150,000 ballots marked for Biden were driven into the state by a postal service worker. Truck disappeared.

          In Maricopa County, the ballots delivered for the big audit all arrived I boxes with broken seals, on the inside,ballots were all mixed up. You know those ballots had not been tampered?
          In Wisconsin, the state Supreme Court ruled the drop off boxes had been illegal. That election should have been tossed.
          Flip those four states,Trump wins.
          Attorney Turley, do you have explanations for how all the examples I just listed can be disregarded? I know you are Mr. Genius or whatever, but you have not been persuasive in your unsubstantiated claims of the election being above board enough to be accepted. You just said that without knowing the particulars in all the different states. You don’t get out of being an election scumbag without either correcting your opinion or providing reasonable, no -Jedi hand wave explanations for enough of the commonly known irregularities to prove your point. You make me sick. Where is your courage to prove a deplorable wrong? You are part of the problem.

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