Even though special counsel Jack Smith clearly outlined former President Donald Trump’s attempts to “defeat the federal government” and overturn the 2020 election in his August 1 indictment, right-wing media have twisted the charges to falsely claim that the state is criminalizing free speech.
On August 1, Trump was indicted on four counts in relation to his actions after the 2020 election: defrauding the U.S., obstructing an official government proceeding (certification of the Electoral College vote), depriving people of a civil right (voting rights), and an additional count of obstructing or attempting to obstruct an official proceeding. This is the third time Trump has been indicted, following charges for his mishandling of classified documents and for falsifying business records over hush money payments.
In the indictment, Smith carefully acknowledged Trump’s First Amendment protections while making the case for his prosecution of criminal conduct unrelated to free speech.
The 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.
Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies.
Each of these conspiracies—which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud—targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election (“the federal government function”).
Right-wing media wasted no time asserting that the indictment was a malicious attack on free speech. But as Nora Benavidez, the senior counsel and director of digital justice and civil rights at the nonprofit Free Press, noted in a statement provided to Media Matters: “We should always be vigilant against government censorship. But this criminal indictment isn't about what Donald Trump wrote or said; it's about what the former president did to undermine our democracy and thwart voters.”
In a piece for Slate, University of California, Los Angeles School of Law professor Richard L. Hasen also poked holes in the First Amendment defense, writing that there is “no First Amendment right to use speech to subvert an election, any more than there is a First Amendment right to use speech to bribe, threaten, or intimidate.” New York University School of Law assistant professor Noah Rosenblum also debunked Fox News host Will Cain’s assertion that “free speech has been indicted,” posting that “it’s not *the speech* that’s criminal. It’s what the speech *does*: constitute an element of another crime. Here, Trump is charged with conspiracy. But the lies he made about the election are part of showing his knowing fraud — an element of a crime.”
Right-wing media spun wild theories that the Trump indictment criminalizes free speech
- Fox News contributor Jonathan Turley called the charges a “free speech-killing indictment” on the August 1 episode of Fox News’ Hannity. He claimed that he writes “a great deals in academic and the free speech area and I have rarely seen a more chilling filing by the Department of Justice.” He added that prosecutors are attempting to “criminalize what they consider to be disinformation.”
- On the August 1 episode of Fox News’ The Five, Fox host Greg Gutfeld said the indictment is “criminalizing thoughts and it’s criminalizing speech” and defended Trump’s actions by arguing that “you have every right to think an election might be rigged or fixed."
- State Freedom Caucus communications director Greg Price tweeted, “Jack Smith's indictment is nothing but a criminalization of political speech. In the 3rd paragraph, he says President Trump ‘had a right like every American to speak publicly about the election and even to claim falsely that he had won.’ But apparently he's indicting him for it anyway. In addition to ’obstructing the J6 congressional proceeding’ I guess by giving a speech at the Elipse???”
- Fox host Will Cain shared the same sentiment as Price, posting, “The DOJ has criminalized politics. And because, who is to decide the truth, criminalized free speech.”
- On the August 1 episode of his Newsmax show Rob Schmitt Tonight, host Rob Schmitt argued that “they're basically criminalizing free speech” and “criminalizing Trump's frustration after the 2020 election, which, as we all know, was an election that was tampered with by the Department of Justice.
- As a guest on Fox Business’ August 1 episode of The Bottom Line, Fox News contributor Katie Pavlich called the indictment the “criminalization … of disinformation and misinformation” and argued that “the left believes that you should go to prison for saying things.”
- On the August 1 episode of Fox News’ The Ingraham Angle, host Laura Ingraham quoted the indictment to note that “the defendant had a right, like every American, to speak publicly about the election” and that Trump had the right “even to claim falsely there had been an outcome-determinative of fraud during the election and that he had won.” Ingraham then argued, “So they concede that he had the right to have a different opinion. But, what? So they throw that in there to try to protect themselves, Bret, but then they violate what they claim they are still protecting.”
- Former Trump adviser Stephen Miller complained on the August 1 episode of Hannity that the “president’s freedom,” “free speech,” and the “Constitution itself” are “at stake,” calling the indictment “the legal equivalent of the French guillotine, the reign of terror” and “a mob mentality to take out Donald Trump.”
- On the August 1 episode of Newsmax’s Eric Bolling: The Balance, Rudy Giuliani, who was reportedly named in the indictment as a co-conspirator and as “ willing to spread knowingly false claims and pursue strategies that the Defendant's 2020 re-election campaign attorneys would not,” predictably tried to deflect the blame. He bizarrely suggested that they should indict Trump prosecutors for “conspiracy against [First Amendment] rights for bringing this indictment.”
- On the August 2 episode of Fox News’ Mornings with Maria Bartiromo, host Maria Bartiromo cited Turley’s claim that the indictment lacks legitimacy, stating, “A similar sentiment talked about this being free speech, so what's the charge? What's the crime? Him saying that he thought that the election was stolen: That's the crime.”