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

The indictments against and investigations into Donald Trump center around his behavior and plans to commit criminal acts. None of these indictments or investigations are focused on criminalizing Trump’s speech alone. The federal indictment related to election interference even acknowledges that Trump has a First Amendment right to freedom of speech, stating 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 Fulton
Nicholas Kamm/AFP via Getty Images

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 courts over the years, the First Amendment does NOT provide protection for:

  • Using words to commit crimes, or 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 others

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

Based on these limitations, an indictment against Donald Trump cannot seek to criminalize statements about the 2020 presidential election simply because they were false speech – but such an indictment can seek accountability where statements were made to support efforts to overturn the election results and the will of American voters.


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