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.”
“If they are made to target a lawful government function and they are made with knowing falsity, no, they are not.” (Smith)
Targeting ICE (a “lawful government function”) with knowingly false statements (“they’re Gestapo”). Bye, bye free speech — for Leftists.
Targeting a president (a “lawful government function”) with knowingly false statements (“he’s a dictator”). Bye, bye free speech — for Leftists.
Targeting law enforcement (a “lawful government function”) with knowingly false statements (“they murder black people”). Bye, bye free speech — for Soros and his goon prosecutors.
They erect the guillotine. Then are shocked when their heads are in it.
Smith was always the most egregious example of how anti-Trumpists openly embraced new limits on constitutional fundamentals that would create political advantages for an ever-rising number of protected classes. For both the left and the right, exemptions from the 1st Amendment are always the essential first step.
Before left wing nuts whig out – this is an AI generated Parody.
Still fun – Enjoy
Too little and far, far too late.
Jack Smith is a tool . He was used bluntly and sloppily by Merrick and his handlers. Smith has more akin to being a eurotrashian living out of the Netherlands . His brash hitman style of bending the system and legal mumbo jumbo failed gloriously of his and his lefty handlers own doings. Jackie , like his eurotrashian confederates hate the UNITED STATES CONSTITUTION. The D brand cult for all their gnashing and wailing for the same constitution use every tool in the govt playbook to mesh rights into privileges and or outright try and violate them as well as try and tax them . Remember the Dem cult is the one that got high off covid restrictions and what they could do to and make people do at a whim – common sense or rights be damned. It was the D brand cult that did and still does enthusiastically support govt censorship and those insane hate speech laws like alcoholics at an open bar. Some things never change with the left and their adherence to narratives and fraud over reality and truth.
“Smith might think his First Amendment exception applies only to brazen and destructive falsehoods like the ones Trump told after losing the 2020 election.”
Boy, that train is never late.
By what law is ICE authorized to have a presence in Minneapolis in the first place?
What. They are federal agents supporting POTUS’s power to enforce the laws of the US created by Congress. Immigration is a national issue, thus states cannot interject themselves in. Remember OHama scolding Jan Brewer, AZ, when that state wanted to help (unlike in the case of MN wanting to hinder Feds)? O, flatly stated that feds trump (no way around pund) states regarding immigration.
YES! PRESIDENT OBAMA sent ICE all over the USA, deporting Millions of ILLEGALS,under the same Authority being used to-day… but the Internet was still in its infancy so there was little coverage like to-day, and little opportunity for people to find out and protest………………
Never heard a single bit of praise from Republicans for Obama’s efforts on that front.
I wonder why that was?
Look it up.
Can we not talk about the REAL news. You know, the Epstein files, was 9-11 an inside job, did astronauts walk on the moon, RUSSIA RUSSIA RUSSIA. Is ICE in Minneapolis your new thing? A one-trick pony, that’s what you are.
9/11 inside job, inside the elevator shafts.
Wow, really? Lol.
By what Law??? By Immigration LAW, dopey. Try reading the U.S. Code, Chapter 12- Immigration and Nationality, Sections 1105, 1182, 1189, 1222, 1225, 1228-1232, 1321-1330, etc., etc., etc. There are multiple repeals and amendments—telling you, clearly, that this issue has been reviewed time and again, so there IS law that authorizes ICE.
Why is the safety of ICE agents more important than the safety of citizens?
*in retrospect, that girl in Minneapolis had every reason to fear for her safety.
Every reason to fear *** but the old-girl DIDN’T.
Your kind of retrospect will buy you casket or get you a seat at the funeral home—emotional upheaval—but it never LEARNS a lesson….
You need to go back to school, study logic, dg: the ICE Agent’s life is not more important; that is not the base of law. He is authorized to use deadly force (authorized by socially and legally agreed-upon statute = LAW). Without the absolute primacy of law, there is no law.
As for the one who was not legally authorized to use deadly force, the old-girl could have deduced danger, but she preferred to induce it. The inability or refusal to take responsibility for action that may have severe consequences is always the hallmark of the extreme-left’s moral ineptitude.
He shifted his cell phone from his right hand to the left to free his right hand to pull the gun before the car moved. He had already had enough back-talk and was intending to kill them for it. He’s a boy with a gun.
Did you see the FBI professional movers go to his house to remove anything incriminating before the state police could get there. Why are FBI agents deployed as cleaners?
“He shifted his cell phone from his right hand to the left to free his right hand”
Pretty sure that is false,
regardless it is irrelevant.
“to pull the gun before the car moved.”
Also false and irrelevant,
An officer can pull his gun anytime.
They usually do so when they perceive a threat.
Regardless the gun is itself a WARNING to Good.
“He had already had enough back-talk and was intending to kill them for it. He’s a boy with a gun.”
The officer who shot Good did NOT engage with Good or her wife.
The ICE communication with good was by a different officer.
ICE’s intent was pretty clear – start to finish.
They absolutely were fed up by Good, and they were in the process of arresting her for interfering with Law Enforcement.
That is a felony.
Good refused a lawful order to exit the vehicle – That alone escalates the safety concerns of the officer.
She does not turn off the car – another red flag that she is dangerous.
Her Wife while attempting to enter her passaenger door shuts “Drive, Drive Drive”
She reckelssly backsup up endangering the ICE officer trying to remove her from the car as well as people behind her.
Whether you like it or not – she has ALREADY established that she is a threat to others.
As she attempts to move forward – her Tire is pointed slightly to the left and spinning in the snow and ice.
The video from behind and to the left of her care makes it clear that this is the moment the Officer draws his weapon – and the vehicle is pointed at him. Good’s tires finally get a grip and the car jumps forward.
The officer has been moving to his right her left and fires his first shot through the windsheild.
It is at this point that the tires move to the right and the car moves to the right
The officer is struck the car actually moves right and the officer fires two more shots.
During nearly all of this the other officer has one hand on the outside car door handle and the other is reaching into the car to try to open the door. He is thrown all over by Goods reckless driving and attempts to flee.
“Did you see the FBI professional movers go to his house to remove anything incriminating before the state police could get there. ”
It is settled law that this is a federal case. The State Police have no business in this case at all.
All cases invovling federal officers are federal cases.
This idiotic claim that there is any indepenent state right to investigate or prosecute is complete nonsense.
We have had nonsense from Governors mayors claiming they were passing laws to be able to prosecute ICE officers.
SCOTUS has long ago decided that Federal officers engaged in Federal law enforcement tasks are completely immune from state laws.
The only LEO’s that can gather evidence or investigate are Federal. Anything Michigan does would be obstruction.
John
He shifted his cell phone from his right hand to the left to free his right hand”
___________________
So the officer is right handed.
Like most of us LOL (-:
Ice is arresting dozens of child rapists and murderers to *protect* the safety of innocent Americans, you moron. Only violent commie agitators who disrupt their *lawful* law enforcement operations are at risk because they put themselves at risk you dolt.
O RLY? Her safety was at risk?
How?
Was the ICE Agent attempting to run over Renee Good with HIS SUV?
Watching the videos, both Good and her wife displayed no signs or indications of fear.
“You want to come at us? You want to come at us? I say go get yourself some lunch, big boy. Go ahead,” says Becca.
Later,
“It’s my fault. I made her come down here. It’s my fault.”
US Immigration law
Trump’s law. That where the buck stops and the main reason ICE is in Minneapolis .. . and many other Democrat-run lawless cities around the country.
Presumably, Houston, Miami and other Trump-leaning cities don’t have any crime or immigrants.
*what law(s) give ICE the authority to use deadly force?
DG has become X. Both are liars.
When LEOs are threatened with death or bodily harm to themselves, other LEOs or third parties. She put the vehicle in reverse, then in drive and hit the ICE officer. She, by her own actions, weaponized a 4,000lbs+ vehicle. In the recent past, we have seen people use vehicles to kill or injure people.
Dear another ‘Anonymous’ ‘By what law is Ice authorized…’ The Answer: Please write to Pres. Obama and ask him! He sent ICE all over the USA deporting Illegals during his Administration and because the Internet was still very young, no one noticed it like to-day – but Pres. Obama can tell you which Laws he used, which are the same ones Pres. Trump uses to-day!
ICE/DHS use of force polices have not been updated since Feb. 2023.
“The 2023 policy clearly responds to conditions in the country at that time and the Biden administration’s perception of the main challenge facing officers out in the field then. It includes, most notably, a ban on chokeholds except when deadly force is authorized, clearly in response to the death of George Floyd. Otherwise it seems quite boilerplate: words like “protester,” “demonstrator,” “civil disobedience,” “riot” and even “civil unrest” don’t appear anywhere.”
https://www.kenklippenstein.com/p/exclusive-ice-is-okay-with-renee
8 U.S.C. 1357
Key Legal Basis:
Immigration and Nationality Act (INA): This foundational act gives ICE officers broad authority to arrest, detain, and investigate individuals suspected of violating immigration laws, even in the interior of the U.S., often without a warrant for arrests in public areas.
Homeland Security Act of 2002: Created DHS and ICE, consolidating federal immigration enforcement under one agency, authorizing them to operate nationally.
—–
Authority in Minneapolis:
Federal Jurisdiction: ICE operates under federal law, meaning their jurisdiction isn’t limited by city boundaries like Minneapolis; they enforce federal immigration laws throughout the country.
Public vs. Private Spaces: ICE can operate and make arrests in public areas (sidewalks, parks, businesses) without a warrant. For private residences, they require a judicial warrant signed by a judge, not just an internal ICE administrative document.
Your idiotic question is why. They have a right to be there because they are enforcing federal law.
“By what law . . .”
None.
You see, here’s ICE’s real motivation:
Trump needs more money for his gilded Ballroom. So ICE cruises neighborhoods to kidnap Minneapolis dads, moms, and children. They’re held at Alligator Alcatraz — where the kidnappers hold an online auction for International Slave Traders. I think there’s even an Alfa Bank account that launders the blood money, and directs it to the Ballroom contractors.
The only reason the Washington Post is changing it’s tune is because of the things Mayor Frey, Tim Waltz, Karen Bass, JB Pritzker, and Mayor Johnson are coming out and saying. The Washington Post knows that if they side with Smith, it will mean if the DOJ goes after those people they will have no way to defend them.
Very bizarre argument
The owner of the Washington Post has been working on getting support from Trump for AI by eliminating regulations that might limit the ability of AI companies to wipe out American jobs.
Bezos has been trying to restore sanity to WaPo for over a decade – it has been covered here repeatedly.
He is losing money and losing subsctptions and sales every year.
No one but the most die hard left wing nuts Buys WaPo anymore and that is costing Bezos a fortune.
We are seeing similar efforts to bring institutions that have been taken over by the left back to the center.
Why ? Because there is not a very big market for left wing nut pablum and most of the MSM owners are tired of throwing money away on left wing nut charity.
If you want WaPo etc to keep spewing left wing garbage – you need to buy more subsctiptions.