Jack Smith tells Congress Trump has no First Amendment protections

For years, some of us have argued that President Donald Trump’s speech on January 6 was protected under the First Amendment and that any investigation would collapse under administrative precedent, including: Brandenburg-Ohio. Special Prosecutor Jack Smith said:war on freedom of expression.“I wrote about him history He ignores such constitutional protections in his efforts to prosecute targets at all costs. I also wrote That Smith’s second indictment (which the Post supported) was a direct attack on the First Amendment. Now, years later, the Washington Post accepted He said Trump’s speech was protected and that Smith “will blow a hole in the First Amendment.”

In this appearance before Congress, Smith’s disdain for the First Amendment was on full display. During his testimony, he was asked by Chairman Jim Jordan (R-Ohio) whether he was entitled to First Amendment protection for Trump’s speech.

Smith replied: “Absolutely not. If these are being done to target a lawful government function and the fraud is knowingly committed, no, it is not. My point was that fraud is not protected by the First Amendment.”

The comment is completely and shockingly wrong. Smith demonstrates a complete lack of understanding of the First Amendment and Supreme Court precedent.

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First, the Supreme Court has held that knowingly false statements are protected under the First Amendment.

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The Supreme Court struck down the Stolen Valor Act. Inside United States v. AlvarezIn a 6-3 decision, the court ruled that criminalizing lies was unconstitutional — a case involving allegations of “stolen courage.” Likewise, the spread of hateful lies is protected. Also in 2011, in Snyder v. Phelps, the Court said the Westboro Baptist Church’s hateful protests were protected.

Second, calling such claims “fraud” does not turn 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 this view. It was clearly protected political speech.

While I’m arguing The Inalienable Right: Freedom of Expression in the Age of Anger” Smith’s prosecution was on course to collide with a check on the Supreme Court’s precedent.

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Brandenburg v. In an Ohio case, the Supreme Court ruled in 1969 that even calls for violence were protected under the First Amendment as long as there was no threat.An unlawful act is imminent and is likely to incite or produce such an act.” Smith could have lost, but he won a history in which such constitutional protections have been ignored.. Such was the case when the conviction of former Virginia Governor Robert F. McDonnell was unanimously overturned on the grounds that it overextended another law.

Trump was never accused of inciting the riot Promises from Democratic D.C. Attorney General Karl Racine To investigate Trump for this crime.

The reason is simple. This was not incitement to a crime, and Trump’s speech was protected under the First Amendment.

However, the Post and other newspapers employed the same experts and assured the public that such protections did not exist. For example, Harvard Law Professor Laurence Tribe has repeatedly made such claims; declaration That President Donald Trump could be charged (“without a doubt, beyond a reasonable doubt, beyond any doubt”) of attempting to kill former Vice President Michael Pence.

The Post has now acknowledged that Trump enjoys First Amendment protection and that Smith is a constitutional threat. The change reflects a laudable shift in the Post’s editorial staff under owner Jeff Bezos and his new team at the paper.

Mail wrote:

Political speech, including speech about elections, no matter how abhorrent, is strongly protected by the First Amendment. It’s not uncommon for politicians to take factual liberties. The main check on such misdirection is public scrutiny, not criminal prosecution.

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Fraud is, of course, a crime. But this almost always involves lying for money, not political advantage. Smith’s attempt to distinguish discourse targeting a ‘legal government function’ does not work. Most political speech aims to influence government functions.

Smith might think the First Amendment exception only applies to the brazen and devastating lies Trump told after losing the 2020 election. But once an exception is created for the First Amendment, it will inevitably be exploited by prosecutors with different priorities. Consider what kind of dissenting speech the Trump Justice Department would argue belongs in Smith’s unprotected category.

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Smith also said he “doesn’t apologize” for the gag order he tried to impose on Trump during the investigation. The decision to criminally charge a leading presidential candidate meant the charges would feature in the 2024 campaign. But Smith has fought to broadly limit Trump’s ability to criticize him or the prosecution in general, arguing that such statements would interfere with the legal process.

Bravo.

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This is exactly the argument that some of us have been pursued relentlessly by the media for years.

This is not meant as a criticism of the Post. At least the Post is making a serious attempt to restore objectivity and accuracy in its reporting 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 disrespect for constitutional values.

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