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Andrea Austria / Media Matters

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Right-wing media falsely claim Trump's conspiracy charges in Georgia are “criminalization” of free speech

The new indictment alleges that the former president's efforts to subvert the state’s 2020 presidential election results violated state racketeering laws

Written by Ethan Collier

Research contributions from Chloe Simon

Published

Former President Donald Trump has been indicted for his role in trying to overturn the 2020 election results in the state of Georgia. The nearly 100-page indictment alleges that Trump, along with 18 others, participated in a “criminal racketeering enterprise to overturn Georgia’s presidential election result.” Leading up to this indictment, some in right-wing media touted Trump’s free speech rights as proof of his innocence, recycling the same defenses used in their attempts to dismiss the former president’s January 6 election interference charges, despite the fact that the charges are based on his actions, not his speech. Right-wing figures like Laura Loomer and Charlie Kirk also attacked Fulton County District Attorney Fani Willis. 

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  • After a two-year investigation, Fani Willis has indicted Trump on racketeering charges 

    • Willis began her investigation two years ago after Trump’s January 2021 phone call with Georgia Secretary of State Brad Raffensperger was leaked. During the call, Trump directed Raffensperger “to find 11,780 votes” because “we won the state.” [The Associated Press, 1/3/21]
    • The investigation followed several main investigative threads.These include Trump’s call with Raffensperger, his attempt to get fake electors to certify his victory, his false claims of election fraud, his harassment of election workers, and Sidney Powell’s unauthorized access to Georgia’s election equipment. [The Associated Press, 7/31/23]
    • Trump and 18 others face up to 20 years in prison for racketeering, specifically violating the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act. According to the indictment, Trump and more than a dozen allies, including former chief of staff Mark Meadows and lawyers Rudy Guiliani and John Eastman, “refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump.” [Reuters, 8/15/23; Insider, 8/14/23]

  • Trump is being indicted for actions he took to interfere with the election, not for his speech or political beliefs

    • “The theory of the indictment is that the speech of the president and the falsehoods of the president were part of a general effort to steal the election.” First Amendment attorney Floyd Abrams told The Associated Press, “If all that this was about was lies or the alleged lies of President Trump, then he’d have a pretty good legal defense based on the First Amendment.” But, Abrams said, the indictment maintains that Trump’s lies “were part of a general effort to steal the election.” [The Associated Press, 8/2/23]  
    • “It’s not *the speech* that’s criminal. It’s what the speech *does*: constitute an element of another crime.” New York University School of Law assistant professor Noah Rosenblum debunked the free speech argument, also writing, “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.” [Twitter/X, 8/1/23]
    • 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.” 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, “Trump did not just state the false claims; he allegedly used the false claims to engage in a conspiracy to steal the election.” [Slate, 8/1/23] 

  • Right-wing media previewed their defense of Trump weeks ahead of the indictment by attacking Willis, claiming the indictment criminalizes free speech, and attempting to undermine the potential charges 

    • Fox guest and legal analyst Phil Holloway attempted to defend Trump’s actions in Georgia as an exercise in free speech. He argued that the “efforts that he made to challenge the election — such as reaching out to the secretary of state here in Georgia and even talking to Mike Pence — those were efforts by a citizen taking their grievance to a government official, and that is specifically covered under the First Amendment. Americans have the right to petition the government for redress of grievances.” [Fox News, The Faulkner Focus, 8/4/23]
    • Article III Project founder Mike Davis appeared on Fox & Friends and claimed that Willis will indict Trump for a “noncrime, again, of objecting to a presidential election.” Davis complained that “this is all-out ‘law-fare’ against President Trump because Democrats fear that they’re not going to be able to stop him on November 5, 2024.” [Fox News, Fox & Friends, 8/3/23]
    • Republican activist and attorney Joseph diGenova called Willis a “rabid Democrat.” In a similarly melodramatic fashion, diGenova previously condemned Special Counsel Jack Smith’s investigation as an “assault on the Constitution” and “vengeance, unleashed retributive justice by a Democratic administration that is drunk.”[Newsmax, Rob Schmitt Tonight, 8/1/23]
    • Anti-Muslim extremist Laura Loomer launched a racist personal attack against Willis, calling her “a straight up THOT.” She added, “Turns out she failed to disclose a previous relationship she had with a gang banger she was supposed to be prosecuting. Baby girl belongs in a Trap House. Not a court house. #Ratchet.” [Twitter/X, 8/4/23]
    • Turning Point USA founder Charlie Kirk called Willis a “complete deranged lunatic” on his show. [Salem Radio Network, The Charlie Kirk Show, 8/7/23]
    • Fox host Sean Hannity said on his radio show that he assumes that this indictment will be “prosecutorial overreach.” Hannity also asserted that “if it goes up to the Georgia Supreme Court, Donald Trump wins hands down.”  [Premiere Radio, The Sean Hannity Show, 8/3/23]

  • Following news of the indictment, right-wing media continued to amplify the “criminalizing free speech” narrative 

    • Attorney and Fox contributor Jonathan Turley argued that Trump's free speech rights are under attack. He said that “every call, every tweet, every speech seems to be a separate criminal act that composes this conspiracy. That raises really troubling questions as to the criminalization of the challenges to elections.” [Fox News, Fox and Friends, 8/15/23]
    • Project Veritas operative Eric Spracklen fearmongered to his followers about their own fundamental rights. He posted: The Fulton County Grand Jury has returned TEN INDICTMENTS. They aren’t just coming for Trump, they are coming for anyone that questioned election results. Be prepared, you’re likely next. [Twitter/X, 8/14/23, Project Veritas Exposed, accessed 8/15/23]
    • Constitutional lawyer Mike Clancy appeared on Newsmax and called it “interesting” that RICO was being used to go after Trump, who was “just exercising his right to question the results of the election.” Clancy also questioned the RICO statute’s applicability to the case, telling host Rob Schmitt that the law is a “strange one that's usually used for criminal networks like drug dealers and prostitution rings.” [Newsmax, 8/14/23]
    • Daily Wire op-ed writer Tim Meads expanded the list of rights supposedly under attack, including freedom of speech. Meads posted, “So far this indictment has indicted freedom of speech, the press, assembly, and the right to petition the government for a redress of grievances.” [Twitter/X, 8/14/23]
    • On Fox News @ Night, Republican attorney and former Trump administration official Kash Patel argued that the indictment contradicts the foundation on which the nation was built. He posed the question, “When you go to the underlying counts and the people involved, are we to believe that the United States justice system and the state court system in Georgia is going to indict counselors, lawyers, and legal scholars who are advising the president of the United States of his constitutional right of free speech to challenge an outcome?” Patel later inquired: “Are they going to start prosecuting and piercing executive privilege and attorney client privilege as they need to do to get this indictment past muster?” [Fox News, Fox News @ Night, 8/14/23]
    • Fox News legal analyst Greg Jarrett argued that “it's not a crime to say that the election was stolen.” He continued, “Hillary Clinton did. In fact, in Georgia, so did Stacey Abrams.” He later claimed that the “U.S. Supreme court has said repeatedly that false claims are protected speech.” [Fox News, Fox and Friends, 8/15/23]