Torres-Spelliscy: “Why Trump’s First Amendment Defense is Likely to Fail: SCOTUS Won’t Buy It.”

The following is a guest post from Ciara Torres-Spelliscy:

Donald Trump may wish to invoke the First Amendment to unravel the Special Counsel’s case against him related to January 6th. It won’t work. Here’s the short explanation of why not.

On August 1, 2023, ex-President Donald Trump was indicted for the third time. He had already faced a New York state prosecution in March 2024 for allegedly falsifying business records related to his hush money payments to Stormy Daniels and others on the eve of the 2016 election. And he faced another federal criminal trial in May 2024 for allegedly mishandling classified documents during his post-presidency. This time the charges were brought by Special Counsel Jack Smith against the ex-president for his actions that allegedly attempted to overthrow the 2020 election.

Shortly after this new indictment was announced, Trump’s lawyers hit the airwaves claiming that the Special Counsel was criminalizing free speech and that Trump had a First Amendment right to say everything he said between losing the 2020 election and the January 6th. For example, John Lauro, a Trump defense attorney, argued that for the “first time the First Amendment has been criminalized.”

The Special Counsel even acknowledged in paragraph 3 of his August 1st indictment that “[t]he Defendant 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.” What President Trump did not have a right to do was attempt to overturn the election or interfere with a co-equal branch of government’s (Congress’s) counting electoral votes in the 2020 election, which is mandated by the Constitution.

If the twice impeached thrice indicted Trump and his lawyers wish to deploy a First Amendment defense in court, they are going to face a serious problem. There is a new Supreme Court cases called United States v. Hansen, 143 S.Ct. 1932 (2023) that profoundly undermines Trump’s First Amendment arguments.

Hansen isn’t an election law case at all. Rather it is case about Helaman Hansen who sold immigrants the false hope of becoming U.S. citizens through “adult adoption.” This path to citizenship is nonexistent. This grifter charged desperate immigrants who wanted to stay in the U.S. thousands of dollars on this pipe dream. Hansen made $2 million in this illegal scheme.

When the federal government prosecuted Hansen for this fraud, he defended himself by claiming that the immigration law that was being used against him was constitutionally overbroad and violated his free speech rights. The Ninth Circuit had agreed with him. The Supreme Court disagreed 7-2 quoting Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003) that “the First Amendment does not shield fraud[.]”

In Hansen, the court explained what counted as criminal solicitation:

Criminal solicitation is the intentional encouragement of an unlawful act. Facilitation—also called aiding and abetting—is the provision of assistance to a wrongdoer with the intent to further an offense’s commission. While the crime of solicitation is complete as soon as the encouragement occurs, liability for aiding and abetting requires that a wrongful act be carried out. Neither solicitation nor facilitation requires lending physical aid; for both, words may be enough.
Id. at 1940 (internal citations omitted).

One could easily see how this language could be used by Jack Smith’s team to shore up their prosecution of Trump because mere “words may be enough” to meet the definition of criminal solicitation of unlawful acts surrounding January 6th or the fake elector scheme.

The Court in Hansen rejected Mr. Hansen’s argument that the lies he told were covered by the First Amendment: “As we have discussed, the provision has a wide legitimate reach insofar as it applies to nonexpressive conduct and speech soliciting or facilitating criminal violations …” United States v. Hansen, 143 S.Ct. 1932, 1948 (2023).

Even though the Supreme Court has been pretty lenient with liars (see Alvarez), even liars in elections (see Susan B. Anthony List), nonetheless the Supreme Court still treats fraud as a different and unprotected category that is outside of the First Amendment’s protections. The First Amendment wasn’t a shield for Mr. Hansen and my prediction is it won’t be a shield for Mr. Trump either should he appeal any future possible conviction on free speech grounds.

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