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.”
On the matter, in regards to most all Speech from the Presidential Executive Branch it is in a form of “Proclamation”. Particularly in a Public venue.
The ‘Proclamation’ given on January 6th by President Donald Trump regarding the 2020 Election was done so under his authority as President. The 1st Amendment certainly extends the Executive Branch the right to Free Speech.
Jack Smith is a Shill for something much greater (the Deep State).
Re.: Proclamation
A proclamation (Lat. proclamare, to make public by announcement) is an official declaration issued by a person of authority to make certain announcements known. …
https://en.wikipedia.org/wiki/Proclamation
https://www.whitehouse.gov/j6/
I really enjoy and appreciate your analysis. I was taught Constitutional Law in 1981-82 using Tribes treatise. Even as an ignorant One L there was something about his authorship I did not like. I would love to see a debate between the two of you. Has that ever been offered/contemplated? Thank you for your work.
Paul H. Grinde
Thank you Professor Turley for your courage. We know that you have put your career and your life in danger to continue to speak truth to power. A patriot such as yourself once said “Is life so dear or peace so sweet as to be purchased at the price of chains and slavery?” The man who said these words is long past but you have even under threats of financial ruin and bodily harm carried on his legacy. May the blessings of the Lord be upon you and yours.
Sooooo… by his own admission his statements make him guilty of the very same premise that he has laid out!
Where are the lawsuits, indictments for using the power of a Federal office to take away a US citizen’s Constitutional rights and
his disbarment!
America will be fundamentally transformed when the Socialist Democrats win all three branches of government. The Supreme Court will be just the beginning; packed with Jack Smith clones.
I don’t think I am going to let them do that.
Adam Schiff said that he had seen proof of Trumps Russian connections in writing and that he would soon be producing it. Never happened. He was obviously trying to undermine the conducting of government business by the Trump Administration. Would Smiths interpretation of the law also require that Adam Schiff be indicted for his false statements regarding RussiaGate. Smith, Schiff they both pledged their allegiance to the principles of the Constitution. This was their first lie in office taken with their hands on the Bible.
The change at the Post is laudable but a slanted eye should be waiting for outcomes in the future.
Perhaps soon a robust welcome back celebration from the dark side Washington Post party will be in order. We missed thee.
Along with 51 Intelligence criminals HRC and the biggest fraud ever, Barrack Hussein Obama.
Yep, biggest failure in the universes.
Jack Smith was shredding his oath to the Constitution and Americans’ Constitutional rights EIGHT YEARS before Trump became the excuse Democrates use for their totalitarian police state fascism while Obama and Biden were in the Oval Office.
EIGHT YEARS!!!!
All the “Get Trump!” efforts have failed to date. They bounce off of him like bullets off superman’s chest.
Every inevitable Trump sucess unfortunately leads to an irritation of the TDS virus in the infected.
I’ve stopped saying “Trump was right about everything!” out of compassion for them, TDS can be deadly! Makes you stupid.
It sounds like Smith went to one of those law schools where they teach that the Constitution is bad and should be scrapped. He is so enamored of nullifying the Constitution that he lives in a fantasy world where it doesn’t exist.
NOVA
Smith graduated from Harvard Law School.
dgsnowden says: Smith graduated from Harvard Law School
That’s nice. So did the unindicted felon Bolshevik Barack. One of the Democrat crime cartel who illegally paid a Russian spy to write the fictional and felonious “Trump-Russia Dossier”.
Same Harvard grad who then sent two of his Attorney Generals and the three of his FBI Directors to repeatedly perjure themselves in Judge Boasberg’s FISA courts. (What an amazing coincidence he was the judge!)
Do you think all of them who committed those feloni, did so on their own? Successfully hiding their malfeasance and felonies from their boss, The Smartest Guy In The Room?
*there must be a point to mentioning Smith was from Harvard like Obama.
Yes, there was a point. .. OldmanfromKansas seemed unsure of where Jack Smith went to law school.
see above “It sounds like Smith went to one of those law schools where they teach that the Constitution is bad and should be scrapped.” ~Oldmanfromkansas
*asked and answered
I for one am not impressed by wokey dopey Harvard if Smith is touted as a great example. He failed because he is a corrupted liar. Hopefully he will go back to the Netherlands to his significant other and STAY THERE.
Smith graduated from Harvard Law School.
*I don’t know who all went to that Law School .. . but their spirit is dead.
It’s the new world peopled by only 3rd world people and in those worlds free speech d9esnt exist. Smith is acknowledging only 3rd worlds exist as does Google. Google says old language of 1st worlds no longer exist as capitalism and thriving nations don’t exist. Google says the language is replaced by developing nations and emerging markets. Communist nations as 2nd world states still exist. Notice the push to communism.
I’ve held back my support of any political issues including all right and left until now. DJT is quite a fighter for the United States of America and I’ve grown an admiration for his fight, fight, fight.
🌲
Send in the military to the renegade States and clean them up. It’s sickening to watch old women blowing whistles, fat women being arrested, and misguided women like Mrs. and Mrs. Good dead. Let’s get back to civilization and the 1st world and I’ll add it’s sickening to watch the the UK bring in east Indians with axes to grind as they’ve invaded the UK. Barbaric.
Get on with it President Trump. I admire your spirit.
Nice Jack analysis JT. Now off topic
ICE body cam shows driver Renee Good making condescending sport with ICE agent. Renee was told to get out of the SUV.
Renee then steps on the gas pedal hitting officer who then shoots. Renee was still pressing the gas pedal after being shot.
So true. (IF) she has followed the orders from the ICE officer and not lover, she would still be alive.
God bless you Professor Turley for being a knowledgeable, reliable, and reasoned voice during these pariolos times.
I thank God for you, Dr. Turley! You are a reasonable, truthful voice in this climate of lies and rage! May you keep up the good work!
treequickly,
Absolutely, and “Amen!” (A-women, too! 🙂 )
To the political left, free speech is another one of those “rights for me but not for thee” kind of blatant hypocrisy. Only Democrats have constitutional rights.
And so does Trump. SC said so. So you’re not seeing things straight due to rabid liberal hate.
If it’s not too much to ask, please support your comment with facts.
Too many Democrats to list but Maxine Waters in 2018, inciting her audience on a street in Los Angeles, was one of the first salvos. Today, the manner in which Democrats lie and incite violence 25/8 is something Americans should take seriously.
Immunity.
Kamala’s campaign account on X featured a lie a tweet, and Hakeem Jeffries is almost that bad.
In the recent shutdown, every Democrat in Congress blamed Republicans for not extending the pandemic-era ACA subsidies, refusing to admit that they themselves had voted in 2022 to terminate them last month — no Republican voted to implement them in 2021 OR terminate them in 2022.
But Democrats are shameless liars and dissemblers.
Estovir,
She’s just precious, is what she is!
🙂
Cindy,
a 10 oz classic cut filet mignon delicately finished with tallow butter and fleur de sel, cooked medium rare, served with cream of spinach, loaded baked potato, Caesar salad and a glass of Silver Oak Cabernet is precious. Maxine Waters is roadkill on a summer highway at high noon in Texas
🤠
https://www.thecapitalgrille.com/menu/filet-mignon-10-oz/prod7160009
Capital Grille is my favorite steak restaurant. I hope you and honestlawyermostly are well.
Estovir……….You’re so hilarious.
And that menu of Capital Grille looks beyond scrumptious! We’ll have to drive to Austin and try it.
Thank you, kind sir. Mr. and Mrs. Honestlawyermostly are well……….53 years and counting! Hope you’re happy and doing fine!
Thank you for reminding us of that Maxine Waters moment. Then there was New York’s own Chuck Schumer screaming on the steps of the Supreme Court at Justices Gorsuch and Kavanaugh.
You are most welcome, Catherine
Forward and onward!
Excellent commentary, as usual by Professor Turley.
A federal judge ruled that the appointment of Smith as Special Counsel was illegal and that decision was never appealed. If Smith’s appointment was illegal, how could any prosecutorial action taken by him been legal and therefore covered by qualified immunity from a civil lawsuit seeking monetary damages incurred by Trump (and others) from those illegal actions? If Attorney General Garland acted illegally in his appointment of Smith, why wouldn’t he too not be protected by qualified immunity from civil lawsuit? Can one of the attorneys on this blog explain why Smith and Garland could, or could not, use the protection afforded by qualified immunity for government officers acting in a legal capacity if their actions against Trump were outside the bounds of their authority and, by definition, then illegal?
Thought about that too. “Legal theatre” is my take. Leftists did what they had to do to destroy Trump, no matter what.
Yes, but does qualified immunity shield them from monetary claims for damages that result from their illegal actions? If this was successfully adhjucated and substantial personal damages (that is, paid personally and not by the government) upheld on appeal, it would likely forever end these illegal appointments. Police officers, other first responders, mayors, governors, and as the Supreme Court recently held, even the President is not shielded from illegal actions. Why not prosecutors?
Um… if one has immunity, then there is no claim of any kind.
Law profs Calabresi and Lawson wrote a well-reasoned easay explaining why MUELLER’s appointment as special counsel was unlawful, and Smith’s appointment was a repeat.
https://ndlawreview.org/why-robert-muellers-appointment-as-special-counsel-was-unlawful/
Worse, bc, unlike Smith, Mueller prosecuted no one directly.
“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.”
So according to Smith what does that say for three years of rhetoric from Schiff and Swalwell and how should they be dealt with?
Actually, it says nothing.
And, so you want a witch hunt? Funny thing, why is it women always call for witch hunts.
BTW, they can’t be prosecuted for anything they said – congressional immunity. Just like Trump.
And why, anonymous, are you a sexist and a misogynist hiding behind no name other than “anonymous”. Millions of people especially women would love to know.
Anonymous the Stupid’s problem is that she can’t read the English language for comprehension. In her response above she completely missed the phrase “according to Smith.”
“can’t read the English language for comprehension.” Looks like you have a problem writing the English language for comprehension.
According huh? Comprehension is not your strong point old timer.
Hiding behind no name? And what then is “allie”?
Millions huh? All I see is one Karen.
Wrong. VERY wrong. see case law regarding limitations under speech and immunity clause
Why don’t you see and source the case law. You brought it up.
sure, clown. U.S. v Johnson and U.S. v Brewster and their progeny. You should know that.
A witch hunt? The WSJ called Schiff out on his lies five years ago. What happened? Schiff became Senstor.
https://www.wsj.com/articles/all-the-adam-schiff-transcripts-11589326164
Time for a good laugh.
____________________________
If 80% of Somalis Are on Welfare, They’re Not Working, so Why So Many Daycares?
100% of dustoff is on welfare.
Nope. Retired. But thanks
Retarded, you meant?
If that is best retort you’ve got. OK then, go for it
Anonymous belongs in daycare.
So says the nursing home patient.
So true Hullbobby
So many somali daycares looking for clients now , anonymous needs to check that out !.
DustOff,
Well, it takes a lot of time to commit fraud, right?
Upstate, you make a good point. It seems like committing fraud is all these people have done since they arrived here. Including Ilhan Omar who committed fraud getting her brother into the country.
Plus ALL that campaign money she has.
LOL… I’m working on it. (-:
Not just that, what are their qualifications of running a daycare? Do any of these Somalians have any formal educational training of children?
And if the average Somali IQ is 68, how did they fool Tim Walz for so many years? Is his IQ in negative numbers?
And to think Walz could have been a heartbeat away from the presidency.
Maybe Mr Smith should have never gone to Washington in the first place. It would seem that he should go back to The Hague in the Netherlands and return to his position in the International Criminal Court. It seems he is far more comfortable with the Contemptable lack of Free Speech in Europe where fascism is more in vogue.
“Maybe Mr Smith should have never gone to Washington…” I’m curious, why?
“It would seem that he should go back to The Hague in the Netherlands and return to his position in the International Criminal Court. It seems he is far more comfortable with the Contemptable lack of Free Speech in Europe where fascism is more in vogue.”
And …. keep going …. why?
That’s a great quote you reiterate of GEB. Smith should just stay in neiderland !.
With all the things that the jurnos I love and follow critic, why have so few exposed the fact that there was fraud in the 2020 election?! I know it is taboo to say and everyone is afraid they will be arrested or shot or whatever; but the truth is that investigations have turned up ballots, votes, miscounts and downright fraud from 2020. I am tired of the blanket claim of “no fraudulent election” being so accepted.
The determination did not negate the presence of fraud, but that that the fraud that did occur was not sufficient to change the outcome of the election. At any rate, it’s academic at this point. I personally believe that God is in control always, and that Trump is President now for such a time is this.
It can’t be a determination if it was not an authorized investigation. It was just a bunch of conservative loudmouths making up lies and screeming foul nonstop. Everyone was looking for their 15 minutes and pile of treasure.
You sounded rational until you inserted God in the comment.
Anon: You sound like a self-made man.
You’re welcome.
“the truth is that investigations have turned up ballots, votes, miscounts and downright fraud from 2020…” Those investigations were not federally authorized, therefore irrelevant.
And don’t you think if it made a difference that Trump would have already used his executive powers to examine those alleged improprieties?
All in all it will not change the outcome of the 2020 election. And that’s actually a blessing is disguised, Trump was not ready to lead a 2nd term. The interceding 4 yrs. gave him time to mature and plan a comeback.
True but doesn’t mean it wasn’t fraud and important in the voting process.
It was illegal for Trump to sign an Executive Order amending the 14th Amendment. It is illegal for Trump to target Democrats with unequal enforcement of laws and regulations. It is illegal to intimidate critics exercising legal First Amendment speech.
It is illegal for Trump to appropriate taxpayer money. It is illegal for Trump not to follow laws passed by Congress. It is illegal for Pam Bondi to withhold the Epstein files.
Trump is sort of like the CEO of a corporation. Congress is sort of like the Board of Directors. Trump follows (executes) the orders from Congress, not the other way around. Congress controls the money and Congress controls any military action. Only Congress can temporarily suspend Habeas corpus rights. Trump’s job is somewhat subordinate to Congress’ Article 1 powers. Trump needs to stay in his lane.
It’s time for Republicans in Congress to grow a backbone and take back their Article 1 powers!
Lot’s of illegals in your comment. Can you please use sources for your opinion?
Neither party has any intention to retake article I powers
Just about everything you just said is wrong.
Presidents sign EOs that are improper all the time
Biden tried to invalidate student debt twice
Unfortunately there is no requirement that presidents enforce the laws or do so equally
Obama chose not to follow the law with the dreamers
Biden clearly targeted a political enemy
As did democrats more generally
Those of all ideologies do things that others find immoral all the time
They are not however illegal
Law enforcement can target any who are breaking the law
The problem occurs when like smith they target people who are not breaking the law
And concerning Biden, he chose to ignore the number one duty of the Federal government of protecting our country and making sure that governmental actions
did not violate US citizen’s constitutional rights by opening up the border!
Trump was breaking the law. That is the point. Mere denial of facts does not make it true that he did not. Smith had evidence and Trump with the help of corrupt judges and crooked lawyers tried hard to suppress evidence and stonewall. Unfortunately he succeeded.
So why did Smith attempt to prosecute Trump under a law Congress passed to prevent another Enron?
“Trump is sort of like the CEO of a corporation. Congress is sort of like the Board of Directors”
uh, no. ever read the constitution? It’s very popular around here.
Trump interprets the “under the jurisdiction thereof” phrase of the 14th amendment to exclude visitors, who remain under the authority of their home countries, and illegal immigrants, who can be deported to their home countries at any time.