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  • Writer's pictureJanuary 6th News

Does The First Amendment Protect Donald Trump Against The Federal Election Charges He’s Facing?

The federal indictment against Donald Trump for criminal behavior related to election interference acknowledges that he had and has a First Amendment right to freedom of speech. It states openly that Donald Trump, “had a right, like every American, to speak publicly about the election and even to claim, falsely that there had been outcome-determinative fraud during the election and that he had won.”

Trump Free Speech
Evan Vucci / AP file

The First Amendment of the U.S. Constitution protects several of our most fundamental freedoms, including the freedom of speech, as well as the freedom of religion, the freedom of the press, the right to assemble, and the right to petition your government.

James Madison wrote the First Amendment, which was adopted in 1791 as part of the Bill of Rights. It was important to our Founding Fathers that people be able to have a robust debate about important public issues.

The First Amendment’s free speech protections DO generally provide protection to:

  • Speak about our beliefs, even if they are unpopular

  • Speak and disagree with others publicly, including the government

  • State as fact things that are untrue

However, the First Amendment’s free speech protections are not unlimited. As determined by our federal courts over the years, the First Amendment does NOT provide protection for:

  • Using words to conspire with others to commit crimes

    • For Example: A mob boss cannot say “kill that man!” and order a person killed, and then claim he is innocent of criminal charges because it was his First Amendment right to say such a thing.

  • Using words that are obscene or lewd

    • For Example: A stranger cannot distribute pornography to passersby in a town square

  • Defaming or lying about an individual in order to destroy their reputation

    • For Example: A recent divorcee cannot write into her local paper spreading lies about her ex-husband because she is upset their marriage ended

  • Threatening the well being of people or of the United States

    • For Example: A movie-theater attendee cannot shout “Fire!” in a crowded theater

Based on these limitations, the Federal Indictment asserts that Donald Trump’s statements about the 2020 presidential election were not merely false speech – they were statements made in furtherance of efforts to overturn the American electoral process and the will of American voters, and therefore were criminal and not protected by the Constitution.


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