The recent charges brought against former US president Donald Trump have ignited a series of discussions concerning the defense presented by his lawyer, which invokes First Amendment safeguards for freedom of speech.
Charges have been filed against Trump for allegedly orchestrating efforts to overturn the outcome of the 2020 election in which he was defeated.

As per the court document, the former president is charged with a “conspiracy to impair, obstruct, and defeat the federal government function through dishonesty, fraud and deceit”.
Legal expert and Professor of Law at Washington University in St. Louis, Gregory P. Magarian, spoke to WION providing insights into the ongoing debate.

The First Amendment provides safeguards for political expression, even if it involves telling lies. However, the current indictment does not involve such a charge and rather it talks about an alleged “conspiracy” by the former president.

However, the question remains whether any actions by Trump can be classified as a criminal conspiracy.

Professor Magarian said the determination of whether speech loses its First Amendment protection is a “question of definitions”.

“If a person speaks in furtherance of a criminal conspiracy, that speech is not protected by the First Amendment. In order to prove criminal conspiracy, the government must prove criminal intent. That intent requirement serves both to set a rigorous standard for serious criminal liability and to safeguard First Amendment interests,” the professor noted.

Scope of First Amendment protection
Professor Magarian clarified that the indictment against Trump does not appear to significantly implicate his First Amendment rights.

While the indictment references Trump’s statements, the expert said it employs these statements “either as bases for charges or as evidence needed to prove charges”.

“Those sorts of uses of defendants’ statements are routine in criminal law. Think of fraud, blackmail, perjury, suborning perjury, making terroristic threats, or attempting to contract for some unlawful act.

“All of those are crimes that can be (and commonly are) committed entirely through speech. Could some attempt by the prosecution, in this case, to use a particular statement by Trump in a particular way implicate his First Amendment rights? I can’t rule out that possibility in a complicated criminal proceeding that has yet to unfold.”

However, he also said that it remains possible for specific statements to be questioned in terms of their implications on the First Amendment, the current indictment does not inherently raise substantial concerns.

“Nothing evident from the indictment raises any serious First Amendment issue that I can see,” he said.

He pointed out that if, for instance, “a person says ‘I think it would be good for the country if [a given criminal conspiracy] succeeded,’ that statement lacks the requisite criminal intent, and the First Amendment protects it. But if a person says to another person, ‘I hereby instruct or request that you take [certain actions] in order to advance [a given criminal conspiracy],’ the requisite criminal intent is present, and the First Amendment does not protect the statement.

Legal rulings
Professor Magarian highlighted that “US courts have held, in a variety of cases spanning generations, that speech in furtherance of various criminal activities is not protected speech.”

Terming the First Amendment defence by Trump a “tenuous and contrived” legal argument,” the expert concluded, “Trump’s First Amendment argument is not, in my judgment, a serious argument”.