“Trump trials: What counts as protected free speech?”

Christian Science Monitor:

“There’s nothing more protected under the First Amendment than political speech,” Mr. Lauro said.

Many legal analysts are skeptical this approach will work in a courtroom. There is no First Amendment right to engage in a conspiracy to break the law, they point out, and Mr. Trump has been charged with urging others to take illegal actions.

Nor is “political” speech actually uniquely protected under the law, they say.

But some experts add that there are fuzzy lines in First Amendment jurisprudence. It is an area of law that is not as settled as one might think, given the Constitution’s age.

Judges in Trump cases may also be reluctant to slap pretrial speech restrictions on a former president and current political candidate who is adamant about First Amendment rights, even if he makes inflammatory comments about his legal situations.

“The basic point is that there are areas of uncertainty,” says Frederick Schauer, a professor and First Amendment scholar at the University of Virginia School of Law. “Raising a First Amendment defense might, depending on the facts, not be completely frivolous.”…

Urging in the abstract that people ought to rob banks to bring capitalism to its knees would be protected under the First Amendment, says Professor Schauer. Urging particular people in a nonpublic manner to rob a bank and give the speaker some of the money would not.

“So a lot may depend on the fuzzy line between protected advocacy of illegal activity and unprotected criminal conspiracy,” says Professor Schauer.

Some experts say Mr. Trump’s lawyers’ description of his activities as “political” speech may be more of a rhetorical flourish than legally meaningful.

Political speech is often presented as axiomatic of the type of speech that the First Amendment is designed to protect, says Gregory Magarian, a constitutional law professor at Washington University School of Law in St. Louis. That does not make it a special category, he says. Speech is speech.

The loser of an election is allowed to say they really won, even if everyone around them is saying otherwise. 

“But if the loser is the president and he is using the power of the office to overturn an adverse election result, that’s way off in its own ZIP code in terms of protecting political dissent,” says Professor Magarian.

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