Will the First Amendment protect Donald Trump and his allies facing charges for their alleged attempt to overturn the 2020 presidential election results? It may depend on the extent and transparency of their planning, says Professor Frederick Schauer, a renowned free speech scholar at the University of Virginia School of Law.

Frederick Schauer
Frederick Schauer

Free speech has been widely discussed as a possible defense against prosecutions brought by the Justice Department and Georgia relating to the election’s aftermath, including events surrounding the Jan. 6 attack on Capitol Hill. In a Q&A, Schauer pointed to the precedent set by a 1982 Supreme Court case, NAACP v. Claiborne Hardware, which protected certain forms of collective behavior because of the underlying political goals. He explores the potential implications of the case for Trump’s situation, and how the Trump charges present novel questions not covered by precedent.

Schauer is a David and Mary Harrison Distinguished Professor of Law. Among his 14 books, he has authored a casebook and a textbook on the First Amendment, as well as “Free Speech: A Philosophical Enquiry.” His most recent book, “The Proof: Uses of Evidence in Law, Politics, and Everything Else,” won the Scribes Book Award for the best work of legal scholarship published in 2022.

There’s been much discussion of whether the First Amendment can protect former President Donald Trump from criminal liability for his efforts to overturn the 2020 election.

It is inconceivable that the First Amendment would apply to all verbal or written behavior, and thus to everything that is “speech” according to the ordinary language meaning of that word. In a 1919 case called Frohwerk v. United States, Oliver Wendell Holmes observed that the First Amendment “cannot have been intended to give immunity to every possible use of language,” and that is as true today as it was then. The bank robber who says “hand over the money” to the teller is not protected in what he says just because he has engaged in speech. So too with the brother who says to his sister, “Why don’t you kill Uncle Harry and we’ll split the inheritance.”

How does the “political” aspect of Trump’s alleged statements and communications play into this?

The claim is that then-President Trump’s activities relating to the election are all examples of speech about government policy and government behavior. The First Amendment becomes more relevant when the speech is about politics or government policy, under a long tradition theorized most prominently by the political theorist Alexander Meiklejohn. Still, the First Amendment does not protect all speech that has political motives or political implications. Using words to plot a political assassination is unprotected. But why that is so presents more complex doctrinal issues than using words to plot a non-political contract killing.

What past precedents apply?

There is a raft of cases saying essentially the same thing as Frohwerk: Using words does not automatically trigger First Amendment protection. If the president of General Motors uses words and only words to propose to her counterpart at Ford that they sell their respective SUVs at the same price, and if the president of Ford uses only words to agree to the arrangement, they are both going to prison for violating the Sherman Antitrust Act, and a claim to be protected by the First Amendment would be laughed out of court.

How do the facts here stray from that line of cases?

A big potential qualification to the above comes from NAACP v. Claiborne Hardware, a 1982 Supreme Court case. The NAACP had organized a boycott against merchants who did not support certain of the NAACP’s anti-discrimination efforts. A civil lawsuit argued that the boycott was a malicious interference with merchants’ businesses, but the Supreme Court held that although labor boycotts for economic purposes have long been subject to prohibition, “speech to protest racial discrimination” was “essential political speech lying at the core of the First Amendment.” One could read Claiborne Hardware to mean that organizing some form of otherwise legally actionable collective behavior is protected by the First Amendment if the collective behavior has a political goal. There are grounds to distinguish the Trump case from Claiborne Hardware, but after Claiborne Hardware, the First Amendment argument is not frivolous.

What are the grounds to distinguish the Trump allegations from Claiborne Hardware?

Some of the Trump cases are criminal cases, while Claiborne Hardware was a civil action. But also, at least some of what is being charged here is planning and implementing, in detail, an actual criminal agreement, as opposed to more abstract advocacy. Claiborne Hardware is still a hurdle that the prosecution must clear, but the greater the detail in the plan and its proposed implementation, the easier it will be for the prosecution.

Are there specific counts in the indictments to which the First Amendment would be no defense?

The closer you get to a criminal conspiracy and the closer you get to agreements that were not made in public — even though they are technically “speech” — the weaker the First Amendment argument becomes. In the first World Trade Center bombing, in 1993, the plan for the bombing was organized — obviously for political and ideological goals — by a Jersey City religious leader, but the fact that this was a detailed plan conceived and planned in a non-public setting made the First Amendment irrelevant even where it would have been highly relevant had the idea been expressed by the same person in a public setting (as long as there was no agreement and fewer details said out loud). This is partly the lesson of a series of late 1950s and early 1960s cases that distinguish abstract advocacy from concrete planning, a line of cases [that] led to the still important 1969 case of Brandenburg v. Ohio, protecting most forms of speech advocating illegal action that fall short of inciting an angry mob to immediate violent action.

So, for example, would you say the Jan. 6 speech on the Ellipse might fall into this “public, undetailed” bucket of speech? 

That’s very possible. Here we get somewhat closer to abstract advocacy in a public setting, in which case the First Amendment argument gets stronger. Again, if that advocacy becomes more detailed and more aimed at immediate action, then the First Amendment argument gets weaker. 

But private phone calls with Rudy Giuliani, the Georgia secretary of state, Sidney Powell, etc.?

Much less likely to be even covered by the First Amendment and much more analogous to a garden-variety criminal conspiracy.

Just to circle back to your first example, what if the hypothetical brother had said in a TV interview with his sister, “I’ve long thought you should kill Uncle Harry so we could split the inheritance”? Is the brother’s speech protected if his sister later kills poor Uncle Harry?

The fact that it is said in public increases the likelihood of protection, but the fact that it is directed at one person and not the public at large cuts the other way. Part of the problem is that there isn’t that much law on this, and many issues remain undecided.

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