Shealah Craighead/Official White House Photo (Public domain)
President Donald Trump talks on the phone during his first trip aboard Air Force One, January 2017.
At a March 2016 campaign rally for Donald Trump in Louisville, Kentucky, three people protesting the event were confronted by the MAGA crowd. Trump, seeing this unfold, poured gas on the fire.
“Get ‘em out of here!” Trump repeatedly urged his followers, on one occasion adding, “Don’t hurt ‘em.” The three protesters—Kashiya Nwanguma, Henry Brousseau, and Molly Shah—were screamed at, pushed, punched, and forcibly expelled. Afterward, they sued Trump, alleging that he “intended for his supporters to use unwanted, harmful physical force” against them.
Even one of Trump’s co-defendants, Alvin Bamberger, blamed him for what happened, filing a cross-claim contending that he shoved Nwanguma only because of Trump’s exhortations. (It was ultimately dismissed.)
On March 31, 2017, federal judge David J. Hale rejected an effort by Trump’s attorneys to toss the case on free speech grounds, saying it was “plausible that Trump’s direction to ‘get ‘em out of here’ advocated the use of force . . . . [I]t was an order, an instruction, a command.”
Three weeks later, Lee Rowland, then policy director of the New York Civil Liberties Union (and now executive director of the National Coalition Against Censorship), offered a dissenting view in an article on the ACLU’s website titled “Donald Trump Has Free Speech Rights, Too.”
Rowland, while allowing that the case at hand was a close call, said Trump’s comments during the rally were protected by the First Amendment. She called Hale’s ruling “troubling from a civil liberties perspective,” noting that incitement charges have historically been used “to jail anti-war protesters, labor picketers, communists, and civil rights activists.” In response to these “mistakes,” the U.S. Supreme Court set a high bar in a 1969 case, Brandenburg v. Ohio. Only speech meant to produce “imminent lawless action” can be prohibited. Rowland says Trump’s comments, which included his admonition to not hurt the protesters, did not clear that bar.
The ACLU’s position prevailed. In a September 2018 ruling, a federal appeals court overturned Hale and declared that Trump’s comments at the Kentucky rally were protected free speech. (Trump still faces a civil lawsuit filed by U.S. Capitol Police officers who were injured in the January 6, 2021, riot. A federal appeals court recently rejected Trump’s attempt to claim he was acting in an official capacity when he directed his followers to go to the Capitol and “fight like hell.”)
I recount the Kentucky case to underscore just how zealously and consistently the ACLU defends the right to free speech for all Americans. That makes it all the more remarkable that the group has soundly rejected Trump’s First Amendment defense for his efforts to subvert the result of the 2020 election.
That case, filed in Washington, D.C., by Special Counsel Jack Smith, is one of four criminal prosecutions Trump is facing as he heads into the 2024 presidential election as the Republican Party’s presumptive nominee. Smith, in a blistering forty-five-page indictment, accused Trump of conspiring with others to remain in power despite losing the election, in part by making false claims of massive election fraud.
The U.S. Supreme Court is now weighing, at Smith’s behest, whether Trump is legally immune from prosecution for crimes committed while he was President. The Supremes are unlikely to sing along, leaving Trump with just his free speech defense. Already, it’s clear Trump’s lawyers intend to argue that their client, believing against all evidence that the election was stolen, had a right, and even a duty, to speak out.
“This is an attack on free speech and political advocacy,” Trump attorney John Lauro exclaimed on CNN. “And there’s nothing that’s more protected under the First Amendment than political speech.” On Fox News, Lauro claimed Trump “is being prosecuted by a political opponent who wields the power of the criminal justice system for what he believed in and the policies and the political speech that he carried out as President.”
In a recent article, David Cole, the ACLU’s legal director, and Ben Wizner, director of its Speech, Privacy, and Technology Project, blow this argument to smithereens.
“Trump has been charged with conspiring to overturn the election results and obstruct the peaceful transfer of power,” the pair write. “At times, he used words, including lies, to accomplish this. But that doesn’t mean he’s being prosecuted for Constitutionally protected speech, any more than a bank robber who says, ‘hand over the money,’ to a teller.”
Smith’s indictment expressly affirms Trump’s right “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.” But Trump is not being prosecuted for his speech. He is being prosecuted for his actions, which include pressuring his Vice President to violate the Constitution, urging state officials to invalidate election results, and having slates of fake electors in battleground states falsely proclaim him the winner.
As Cole and Wizner put it, “the fact that a crime includes speech does not turn the First Amendment into a defense.” They quote Justice Hugo Black, a First Amendment stalwart, in a 1965 decision: “It has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language.”
Trump’s attorneys have also insisted there should be no constraints on his ability to threaten and defame court personnel and witnesses in the various cases against him. “The First Amendment does not permit the district court to micromanage President Trump’s core political speech,” Trump lawyer John Sauer wrote in a filing in the Washington, D.C., case.
Special Counsel Smith, meanwhile, defended a gag order put in place by U.S. District Judge Tanya Chutkan. His office noted that Trump has used his social media platform to say things like “IF YOU GO AFTER ME, I’M COMING AFTER YOU,” lambasted prosecutors as “deranged,” called the judge in the case a “fraud,” referred to his former Vice President, Mike Pence—a likely witness against him—as “delusional,” and suggested that General Mark Milley, the former chairman of the Joint Chiefs of Staff, should be put to death.
Donald Trump is not a First Amendment hero. He is a criminal defendant who is subject to the same rules as any other, even though he has been allowed to bend those rules more than most.
Again, the ACLU had Trump’s back—up to a point. In October, the group filed a brief faulting Chutkan’s gag order as overly broad, impermissibly vague, and “insufficiently justified.” The group agreed that Trump has a right to speak his mind on the election and argued that the gag order “should be narrowed to cover only imminent threats that would impede a fair trial.”
ACLU Executive Director Anthony D. Romero said: “No modern-day President did more damage to civil liberties and civil rights than President Trump, but if we allow his free speech rights to be abridged, we know that other unpopular voices—even ones we agree with—will also be silenced.”
In early December, a federal appeals court largely upheld the trial court’s gag order. It ruled that Trump’s coarse rhetoric threatened the integrity of his upcoming criminal trial and posed “a significant and imminent threat to the fair and orderly adjudication of the ongoing criminal proceeding, warranting a speech-constraining protective order.” (A similar gag order was upheld shortly thereafter by another appeals court in Trump’s civil fraud trial in New York.)
The Washington case’s three-judge panel, all Democratic appointees, did narrow the scope of the gag order, allowing Trump to criticize players in the 2020 election saga. But it left intact the restrictions on his ability to attack key witnesses, courthouse staff, and prosecutors other than Smith.
“The court had a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process,” Judge Patricia Millett wrote for the unanimous panel. “Mr. Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process in this case.”
Scott Michelman, legal director of the ACLU in the District of Columbia, issued a statement applauding the panel for having “applied a rigorous First Amendment standard to safeguard speech about the judicial process” in narrowing the gag order. He called the court’s ruling “properly tailored, reflecting an appropriate balance of Mr. Trump’s free speech rights with the court’s legitimate need to protect the judicial process from a defendant who has demonstrated his eagerness to interfere with it.”
Trump is, of course, appealing, in an attempt to claim the mantle of a free speech crusader. Steven Cheung, his campaign spokesperson, said, “President Trump will continue to fight for the First Amendment rights of tens of millions of Americans to hear from the leading presidential candidate at the height of his campaign.”
But Donald Trump is not a First Amendment hero. He is a criminal defendant who is subject to the same rules as any other, even though he has been allowed to bend those rules more than most.
The First Amendment protects speech; it does not give people license to undermine court proceedings by making threats. And it does not absolve anyone of responsibility simply because they used speech in the course of committing crimes.