For years, some of us have argued that President Donald Trump’s January 6th speech was protected under the First Amendment and that any prosecution would collapse under governing precedent, including Brandenburg v. Ohio. I was regularly attacked as an apologist for my criticism of Special Counsel Jack Smith’s “war on free speech.” I wrote about his history of ignoring such constitutional protections in his efforts to prosecute targets at any cost. I also wrote how Smith’s second indictment (which the Post supported) was a direct assault on the First Amendment. Now, years later, the Washington Post has acknowledged that Trump’s speech was protected and that Smith “would have blown a hole in the First Amendment.”
In this appearance before Congress, Smith’s contempt for the First Amendment was on full display. During his testimony, he was asked by Chairman Jim Jordan (R-Ohio) whether Trump was entitled to First Amendment protections for his speech.
Smith replied: “Absolutely not. If they are made to target a lawful government function and they are made with knowing falsity, no, they are not. That was my point about fraud not being protected by the First Amendment.”
The comment is entirely and shockingly wrong. Smith shows a complete lack of understanding of the First Amendment and Supreme Court precedent.
First, the Supreme Court has held that knowingly false statements are protected under the First Amendment. The Supreme Court struck down the Stolen Valor Act. In United States v. Alvarez, the Court held 6-3 that it is unconstitutional to criminalize lies — in that case involving “stolen valor” claims. Likewise, spewing hate-filled lies is protected. In Snyder v. Phelps, also in 2011, the Court said the hateful protests of Westboro Baptist Church were protected.
Second, calling such claims “fraud” does not convert protected speech into criminal speech. Trump was speaking at a rally about his belief that the election was stolen and should not be certified. Many citizens supported that view. It was clearly protected political speech.
As I discuss in The Indispensable Right: Free Speech in an Age of Rage,” Smith’s prosecution was on a collision course with controlling Supreme Court precedent.
In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.” Smith would have lost, but he has a history of ignoring such constitutional protections. That was the case when his conviction of former Virginia Governor Robert F. McDonnell was unanimously reversed as overextending another law.
Trump was never charged with inciting the riot despite pledges of Democratic D.C. Attorney General Karl Racine to investigate Trump for that crime.
The reason is simple. It was not criminal incitement and Trump’s speech was protected under the First Amendment.
Nevertheless, the Post and other papers ran the same experts, who assured the public that no such protections existed. For example, Harvard Law Professor Laurence Tribe has made a litany of such claims, including his declaration that President Donald Trump could be charged (“without any doubt, beyond a reasonable doubt, beyond any doubt”) with the attempted murder of former Vice President Michael Pence.
The Post has now recognized that Trump does indeed enjoy First Amendment protections and that Smith was a constitutional menace. The change reflects a commendable shift in the Post’s editorial staff under owner Jeff Bezos and his new team at the paper.
The Post wrote:
Political speech — including speech about elections, no matter how odious — is strongly protected by the First Amendment. It’s not unusual for politicians to take factual liberties. The main check on such misdirection is public scrutiny, not criminal prosecution.
Of course fraud is a crime. But that almost always involves dissembling for money, not political advantage. Smith’s attempt to distinguish speech that targets ‘a lawful government function’ doesn’t work. Most political speech is aimed at influencing government functions.
Smith might think his First Amendment exception applies only to brazen and destructive falsehoods like the ones Trump told after losing the 2020 election. But once an exception is created to the First Amendment, it will inevitably be exploited by prosecutors with different priorities. Imagine what kind of oppositional speech the Trump Justice Department would claim belongs in Smith’s unprotected category.
Smith also said he makes ‘no apologies’ for the gag order he tried to impose on Trump during the prosecution. The decision to criminally charge a leading presidential candidate meant the charges would feature in the 2024 campaign. Yet Smith fought to broadly limit Trump’s ability to criticize him or the prosecution in general, claiming such statements would interfere with the legal process.
Bravo.
This is precisely the argument that some of us have been making for years, while being relentlessly pursued by the media.
This is not meant as a criticism of the Post. At least the Post is now making a serious attempt to restore objectivity and accuracy to its coverage and editorials. As for Smith, his testimony confirms the worst assessments of his view of free speech. The only thing more chilling than his lack of knowledge of constitutional doctrine is his contempt for constitutional values.
Jonathan Turley is a law professor and the author of the forthcoming “Rage and the Republic: The Unfinished Story of the American Revolution.”
Fascists like Smith do not care about the Constitution, the Bill of Rights, or the rule of law. For Fascists, power is the only thing that matters. Smith was chosen to get Trump. He decided that he could and would use any methods at his disposal, to hell with civil rights. Shame of Jack Smith.
You just planarized Turely’s column.
Says the supporter of the the spearhead of the first attempted coup in US history. What does the Constitution say about that?
Adam Schiff spearheaded the first attempted coup in US history, with the help of the Vindman brothers.
The Post like CBS is trying which is more than other media outlets. Jack Smith for his part in the closed door session testimony has not. I expect the same from him in his future public testimony. Hopefully there will be someone like Ted Cruz to point out his conflicting position on the first amendment as decided by the supreme court in all of it’s decisions.
Jack Smith should GO TO JAIL for Life. His actions and beliefs are opposed to the Constitution and Rights. He did a lot of questionable things. His staff the same. Then there are many questions about his role and actions in the International Courts.
If that’s the case, then Trump should go to jail for life, as well.
Sure, Fascist, sure.
Ooooh! Do you know what the words means? Like Herr Drumpfenfuror said: I like the uneducated.
Then you two must be great pals Wally!
Very common MAGA position. Those who try to hold Trump accountable need to go to prison and those who commit crimes for Trump, or Trump himself committing crimes is ok.
Hiillary Clinton committed tge same felonies that Trump was convicted of, but never prosecuted, bc Democrat.
Hillary Clinton violated the Espionage Act, by copying classified documents to the harddrive of the personal email server she kept in a Chappaqua bathroom, but was never prosecuted, bc Comey.
Why was Hillary never held responsible for the crimes she committed?
Add O-dumber to that list.
I suggest you rethink your comment. Those many questions you state, could you please tell what they are?
Maybe he should go to jail if he was committing actual crimes in the pursuit of his over-zealous over-the-top lawfare against Trump and many others. He certainly should be subject to civil suits over a good deal of it and I hope such suits make him bankrupt. But I think the best thing for Smith is disbarment.
She would still be alive, enjoying her God-given right to life, if
ICE were never there in the first place.
She would still be alive if she hadn’t tried to murder an ICE agent. Life is about choices.
“She would still be alive if” she treasured her own life and obeyed law enforcement orders.
She didn’t. And she isn’t.
Her suicidal choices had suicidal consequences.
She would still be alive is she hadn’t parked across a street blocking a police action, sat there as they told her to move, planned to get clicks by having her wife video her actions and then floored the car at her wife’s behest with an officer standing in front of her car.
Was the shooting justified? I am not an expert nor am I on a jury but her actions started the affair, caused her own demise and also ruined her wife’s life and a LEO officers life as well.
If you want to pull back even further Joe Biden is the cause of her death. If he hadn’t allowed 10-15 million illegals to enter unvetted we would not need to be trying to remove them now. This death is another one on Joe Biden.
Too bad you weren’t at the scene, you sound like a irrational sort, it would have been a bloodbath if you were you there holding a gun.
Everything he wrote is true. No offense, but you are a moron.
True you say? How can an idiot like yourself judge truth? Follower huh?
So you have no proof. Just insults. Figures.
“Too bad you weren’t at the scene . . .”
Neither were you. So how do you know that his statement is false?
HullBobby,
Well said. She knew and was apart of a group that actively seeks to impede LEOs from carrying out their duties.
And you investigated her background?
Neighbors spokes of her actions
It takes a true MAGA to believe that those actions warrant summary execution.
The dead woman refused to comply with a police officer’s lawful orders. At that point she no longer gets the benefit of the doubt. She shoved her 4600lb SUV into Drive and stepped on the gas.
The agent’s bullet went through the driver’s side of the windshield.
Why do leftists believe Good was trying to leave at that point, when she never wanted to leave before? What occurred that would have made her change her mind?
Here here
Who is “she”?
Dead now.
Or is she had listened to the ICE officer words, but she didn’t.
Can you even write a coherent sentence man?
What is a “sentence man”?
LOL………………… now that’s funny!
ICE is present in compliance with our immigration laws, to enforce those laws. If you disagree with those laws, write to your Congressman or run for Congress. So-called sanctuary cities / states are shooting themselves in the foot by refusing to work with ICE: if criminals that are here illegally were released to ICE, Ice would not have to go out into the communities to find and arrest them. And if they didn’t go out into communities, they would not encounter and arrest other people who are here illegally.
If you consider our immigration laws to be capricious, I suggest that you listen to Patty Morin describe the torture and death of her daughter Rachel, and Alexis Nungaray’s description of her daughter Jocelyn’s torture and death. These are just two of many such occurrences, but they were well publicized so the details are readily available.
And other people would be dead as a consequence of the nearly 600k violent criminals I’ve had deported
DumAnon
Let’s continue with your logic. If there weren’t tens of thousands of Illegal criminals in our country then ICE wouldn’t be there. If Biden and Mayorkas hadn’t opened the borders then 19 million illegal immigrants wouldn’t have invaded our country and ICE wouldn’t have been necessary. If Good had complied she wouldn’t have died.
Officer Amy Caprio would still be alive, enjoying her God-given right to life, if that 16 yo boy had never run her over with a stolen SUV.
“condemnable shift”? Do you mean “commendable”?
Under the Jack Smith Doctrine, 85% of the Democratic members of Governing bodies (Federal, State and Local) would be imprisoned by now!!!!!
Jack Smith Doctrine? Please explain.
So it’s ok to call for violence but not to actually do it?
Like saying PEACEFULLY AND PATRIOTICALLY MAKE YOUR VOICES HEARD? Like that? Or like saying “push back on them” and “create a crowd”, like Maxine Waters did?
she also said, “get in their faces.”
Sounds like sedition.
“tell them they’re not wanted here.”
It is encouraging to see movement out of WAPO. Smith looks more like a prosecutor for George III going after Thomas Payne for publishing Common Sense. The North Star of the privilege of lawyering is represent the client zealously within the bounds of law. Smith’s adaptation was represent the client by zealotry within the bounds of low.
Please note, your claim appears to be a myth or exaggeration rather than a documented fact. G III did not seek legal retribution for Thomas Paine’s pamphlet.
BTW, Common Sense published anonymously. So how could George III “go after” Paine?
Or getting someone else to do it
You?
Yawn
Dustoff, again, you are the stupidest person on this blog. Hands down.
Option fool. It’s all you’ve got
I wonder if the expression of “free speech” could be extended to parking perpendicular on a street. If not, would the death penalty be appropriate?
“. . . parking perpendicular on a street.”
In all of those countless videos, that’s all you saw?!
If so, I suggest a new ophthalmologist.
Are you saying Smith parked illegally?
Really dumb comment. She used bad judgement by (1) Blocking an ICE truck with her car. Yes you can go to jail for that. (2) She was told by the ICE officer she was under arrest and failed to get out of the car. (3) The second she hit the gas, it would change everything.
Just maybe she should have followed #2 and would be in jail but alive.
But she appears to be a left-wing nut. So following rules is not in her thoughts.
Really dumb comment. It was so intended and to see who would bite. You’re right and you fell for it.
The officer had the situation in control, even including the apparent “glance” from her car. You do not get really “glanced”, and walk up the street as he did. He acted as judge, and decided the punishment for her.
If the officer had the situation in control, Good would of follow the officer’s orders, gotten out of the vehicle and not attempted to run down a LEO or to evade and escape.
She broke the law you fool. Then stepped on the gas.
The video shows it all.
The driver refused to comply with the other agent’s lawful commands. From then on, the agent was NOT in control. Her harmlessness, her goodwill, could NOT be presumed.
Unfortunately for her, she presented a threat to his life, and he responded accordingly.
DustOff,
Again, watching the video, Good and her wife seem to think this is some kind of game. Unfortunately for her, her actions got her killed.
According to witnesses, “From my understanding, she was involved in social justice … we are a tight-knit community and a lot of parents are [activists],” former Southside gym teacher Rashad Rich, who resigned from the school last month, told The Post.
County worker Kristin Peter, 30, who was also at the vigil, said Renee was on the same ICE Watch team as one of her coworkers, and that she herself was attending a meeting of the group Thursday night.
“She was very effective in stopping traffic. She was doing exactly what she set out to do,” the witness said.
And now, despite the new video evidence, Minneapolis Mayor Jacob Frey dismissed it, as I predicted yesterday.
Minneapolis and perhaps Minnesota have declared themselves sovereign citizens but they’ll take your money?
The feds are reclaiming a State?
You were schooled on this yesterday. You lost. You are not a quick learner.
That was not “parking perpendicular on a street.” That was willfully impeding LEOs from carrying out their lawful duties. Good then attempted to either run down a LEO or evade and escape, after being told to exit the vehicle. A lawful order. After reversing the vehicle, Good then put it in drive and drove the vehicle forward and into a LEO, striking him. At that point, Good turned the vehicle into a deadly weapon of 4,000+lbs that could cause death or serious bodily harm to the LEO or other LEOs.
Upstate
Funny how these libs, miss the whole point of her own death.
She should have stayed home and enjoyed the winters day.
I believe in expressive activity, but not if it could cost a federal worker his life.
For some censorship is essential for the Republic when in truth censorship is repugnant to free societies!
“Smith might think his First Amendment exception applies only to brazen and destructive falsehoods like the ones Trump told after losing the 2020 election. ” Thereby proving, using the Posts own words, they are exercising their first amendment rights to lie or disseminate destructive and proven false information (voting problems that have come to light recently in places like Ga. etc. And let us not forget 1 voter confirming 8 others as legal voters in MN)
Have you ever goggled how many dems have made the same comments about losing elections. Try looking for once.
Goggled huh? Can’t say I have.
Next time try “googled”.
HAHAHA. I didn’t make it a Capt.
Anything to cry about. We all know what it is.
Cry some more,
Ole dustoff is getting his butt whooped this morning. Really pissed huh?
If you think so. Heck with all this flack by you poor libs. I must be over the target.
Bombs away
And, unfortunately, to render unwarranted Johnathan’s statement that “… the Post is now making a serious attempt to restore objectivity and accuracy to its coverage and editorials.”
Thank you for all you do!
Good read there Professor. A little righteous indignation is good for the soul
Still hard to believe that WaPo criticized Smith and Company
This feels a lot like the Charlie Brown – Lucy football moment. We’re expected to believe that the Washington Post has suddenly had an awakening about the First Amendment. I don’t buy it.
The principles being acknowledged now were never unknown. What changed is the exposure. Once credibility is repaired, the same play can be run again, and Charlie is expected to line up for another kick.
Thank you, Prof. Turley for the well writen factual solid 3-Dimentional Portrait of Smith.. now we see clearly the persona of a ruthless manipulative cut-throat persecutor… oops… sorry for the slip…. should be ‘prosecutor…’ Long live The Constitution! ..untouched by Smith’s pitchfork………….
To redeploy Al Gore’s famous phrase, it is fair to say that for Jack Smith, the law has become an inconvenient truth. In fact, this view is reflected in the actionable opinions of hundreds of district judges. Either we have laws or we do not, and if we do not, our country risks becoming like the old South, “gone with the wind.”
That quote refers to climate change accusation Gore made, not a subliminal truth.
“The change reflects a condemnable shift in the Post’s editorial staff” — Should this sentence not read “… a commendable shift”?
“The change reflects a condemnable shift in the Post’s editorial staff under owner Jeff Bezos and his new team at the paper.” I hope you meant “commendable.”
At the heart of every liberal Democrat is a communist dictator that wants to control the country.
Capitalists are the ones who want to do you wrong and get away with it.
This is why they hire lawyers.
The lawyers help them to get away with the wrongs that they do.
But leftist never hire lawyers?
LOL
And so what was Smith doing?
Trash the eight amendment as well as the first ?
Really? Got proof.
Let’s be honest. This isn’t ignorance of the First Amendment, it’s weaponized process. He knows the speech is protected. He also knows the punishment is the process.
You attack, force the defense to burn time and resources, shape the narrative, and rely on the fact that any reversal comes too late to matter.
That’s not law enforcement. That’s lawfare.
That’s what Turley wrote. Go going none the less.
OLLY,
I have to wonder is he doing that which you describe? Or is he a true believer that he will be the one to get Trump? Seems he should know about things like United States v. Alvarez and Brandenburg v. Ohio but he simply ignores them.
true believer huh?
Upstate,
Western civilization is anchored in the principle that human beings possess unalienable rights that pre-exist government. Everything else; law, institutions, offices, and authority exist solely to secure those rights.
I don’t think Jack Smith is trying to tear down Western civilization, nor do I think he rejects unalienable rights in principle. The danger is more subtle and more serious. His first principles are not sufficiently embedded to withstand the pressures inherent in the power he wields. A prosecutor entrusted with protecting rights must be formed deeply enough to refuse subordinating them when ideology, fear, or perceived necessity intrudes. Smith appears willing to use lower-tier tools of government in ways that compromise those rights, believing the harm is narrow or technical.
That’s what makes this so dangerous. Civilizations are rarely undone by people who openly hate them, but by those who believe in them only shallowly, and therefore exception their first principles when it matters most.
Oh wow, you mean the Dark Knight hero of the Leftist Filth is finally seen as the Scumbag Ambulance Chaser that he is? Hmmm, they must finally be smoking less pot at the at the Washington Post!
Leftist Filth, Scumbag Ambulance Chaser .. you a lawyer?