Okay–Let’s Talk About Free Speech

I haven’t posted about the indictment filed against Donald Trump by Jack Smith, because everyone  else in the universe is contributing to that discussion. But one element of those analyses/debates sets my hair on fire.

Nothing about this prosecution is about Free Speech. Nothing!

I taught my classes in Law and Public Policy through a constitutional lens. I spent the first part of the semester on what I call the “constitutional architecture”–very much including the Bill of Rights. (I was always shocked by the number of students who came to class totally unaware that the First Amendment protects citizens against government censorship–not from other people’s negative responses.)

When we came to freedom of speech, I wanted students to understand the difference between speech–defined as the constitutionally-protected communication of an idea, no matter how wrong or stupid or hurtful–and action, including action effectuated through speech.

Some of the examples I used:

  • I tell you I’ll make you a great deal on a diamond ring. It turns out to be a cubic zirconium. My representations that it was a diamond aren’t protected “speech,” they are fraud–a criminal action.
  • I call you every 15 minutes and scream at you over the phone. You call the police. I protest that I am engaging in freedom of speech. I’m wrong–harassment is an action, and the government has a right to proscribe it.
  • I’m a police officer, and I’m sitting in a restaurant booth. I hear the people in the next booth planning to rob the local bank. One says, “okay, I have the car. You have the gun. I’ve cased the place, and if you are there promptly at two, when the security officers shift, you should be able to get in and out by ten after, and I’ll be waiting.” A conversation of this specificity (unless they are actors rehearsing a scene!) constitutes the initial steps–actions–of the commission of a crime. I need not wait until they are in the middle of that bank robbery–I’m entitled to arrest them now.
  • You are a MAGA fanatic, and you regularly post diatribes to social media about how horrible Joe Biden is, how government and the “deep state” cannot be trusted and how you regularly pray for the painful death of all Democrats. Aside from your social media screeds, you take no action to harm anyone. That’s free speech, and you’re home free–at least, when it comes to the criminal law. (If you accuse specific political foes of being pedophiles or Satanists or whatever, you will risk a civil suit for libel or defamation, but absent credible threats and/or concrete actions to harm someone, you will not face criminal prosecution.)

Bribery, Insider trading. Identity theft and selling state secrets to foreign governments are other examples of crimes committed via speech.

One of the reasons people get confused about what free speech is and what it isn’t is the fact that “speech”–that is, transmission of a message– can be accomplished without words. (The legalese is “symbolic speech.”)

Burning a flag (assuming you own that flag and you aren’t violating a dry weather “no burning” ordinance) is protected by the First Amendment, because the whole purpose of that act is to send a message that the burner disapproves of the country. It’s a message that angers a lot of people, but that doesn’t justify government punishing it.

Nazis marching in Skokie, Illinois or Charlottesville, Virginia are sending an equally clear message, even without the latter’s accompanying chants. We all know what that message is, and–again, absent violence, vandalism or other hooliganism–it’s protected by the First Amendment.

The text of the Trump Indictment acknowledged that his lies were protected speech. Whether he believed them or not is irrelevant–so long as he was only posting his crazed diatribes and screaming about the election being rigged, the First Amendment protected him. Once he took concrete actions to overturn the results of the election and remain in power, however, the Free Speech clause no longer applied.

I’ve read several columns by people who should know better, gravely opining that prosecutors will have to establish whether Trump actually believed the garbage he was spewing, and noting that making such a showing is difficult. Those writers need to re-take  high school civics. As a better-educated pundit noted, I may be genuinely convinced that I am entitled to your car, but stealing it is still a crime.

Trump’s MAGA defenders can scream about the Department of Justice “criminalizing” Free Speech,  but those protestations will only sound plausible to people who slept through their high school government class.

This whole debate proves my point about the deplorable level of Americans’ civic literacy.


  1. We should be talking about Biden and Devon Archer and how corrupt Biden is! Every charge against Trump came one day after new revelations about our current President and how corrupt he us. A sad day in journalism not to see this but cover it up.
    Yes telling fire in a theatre can get you arrested but not pointing iut the instability if our financial future as markets melt and Fitch points out what Sen. Rand Paul is stating, the US is one big Golden Fleece award.
    Trump make some bad decisions, the FBI heard all the chatter and did nothing. How us this only one persons fault when Pelosi sat on her hands snd did not order in troops. Look at DC now. Comparatively a set up for a war zone some commentators are saying. Why?
    No one sees tge burning forest we are in. Give me a moderate Presidential candidate not the teo that will be running this fall… if we make it there.

  2. In yesterday’s post, I noticed a recurring theme of ignorance or foolishness. This is prevalent in the content shared by various politicians on X.

    As a consumer of news, it’s important to be vigilant and aware of what we’re reading. The principle of “buyer beware” applies to news consumption as well.

    I often commented on articles published by Gannett-owned properties where journalists presented a mix of truth and falsehoods. As a consumer, I had the option to accept it at face value or conduct my own research.

    However, not everyone has the time or inclination to fact-check what they read. I often come across people in public spaces who share misinformation. It’s tempting to ask them, “Where did you hear that nonsense?”

    To be honest, I’ve been feeling a bit jaded lately. This post reminds me of some famous quotes from Forrest Gump that are relevant to this topic. 😉

  3. And the games have begun! From an NBC News item titled “Special counsel cites threatening Trump post in request for protective order in election case”. Special Prosecutor Jack Smith has already had to request Judge Chutkan “…ensure that sensitive materials are used by Trump’s defense team for trial only, and that the former president view the materials in presence of lawyers.”

    Copied and pasted from article; “Prosecutors went on to say that Trump had written “multiple posts” that mentioned or implied the case, including one that appeared on his Truth Social page Friday afternoon that read: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

    Is the above copied and pasted paragraph “criminalizing” Free Speech? The bare bones requirements regarding Trump’s behavior post Arraignment #3 on Thursday afternoon turned him and his mouth loose on the public, his prosecutors and witnesses again…and all potential jurors. Trump remains above the law even after high crime and misdemeanor arrests after one conviction leading to a second charge by the same victim.

  4. Some say Nixon would have won Illinois and West Virginia, and the presidency, in 1960, were it not for illegal actions taken by those supporting JFK. What right would Nixon have had to protest that election?

  5. John S. Impossible for me to know whether you are one of the folks duped by propaganda or one of the fully aware propagandists. Either way, you do have the right to spew that garbage. If the Biden administration were what you accuse them of being, you would be silenced the way Putin silences his critics.

  6. Gordon, you have every right to question the results of an election. There are rules in every state for a process to have a re-count. BUT once that process has run its course you must accept the results. Nixon could have done that (maybe he did; I was too young to follow that one). And Trump’s team did go after the results in many states, but when that did not give them what they wanted he and his team set out to lie, cheat and bully voting officials to alter the results. Therein is the crime.

  7. Thanks, Sheila. You’ve touched on this topic before, but it needs reinforcing in the current environment of MAGA stupidity.

  8. Some interesting free speech here this morning. I’d like to point out that Sheila is demonstrating how it really works, by tolerating the “what about ism” being used by some, in spite of the fact that much of it is nonsense. She has set the rules and they pertain to civility, not accuracy. As the owner of this blog, she has the right to ban whatever she wants. As a civil libertarian, she accepts all opinions, regardless of the source. Thank you, Professor!

  9. Good morning Theresa. One thing that has changed since we were young is that we always had “exit polls” which gave us an early idea of the direction of the outcome, and served as a dependable safeguard against election fraud.

    If the exit polls varied from the machine count by a significant margin, that was a sure sign that the machine count had been tampered with.

    Nixon likely had that tool available in 1960, but it’s largely absent today. Confirming exit polls would go far to assure the integrity of our elections, but we’ve chosen to abandon them.

  10. “I was always shocked by the number of students who came to class totally unaware that the First Amendment protects citizens against government censorship–not from other people’s negative responses.”

    This is the saddest statement in your excellent piece. How can we expect people to understand and support something they have never been taught.

  11. Gordon, WHAT? Exit polls? And are the voters going to have to participate in such polls? What about the “secret ballot”? Are you proposing that we do away with that? How could such a poll be accurate if everyone was not forced to take part? And how would one know if the participants were telling the truth?

  12. It’s good to hear some of the alternate reality whataboutisms, because it lets you know that there really is a problem with the education on basic constitutional rights and the law. Shiela’s blog hits at the heart of a real problem!

  13. And how about money = speech thingy? That’s one of my favorite perversions of the First Amendment. Another Republican milestone in cockeyed justice.

    Trump incited the deadly riot. “We gotta fight like hell…” Intent? DUH!

  14. Decades ago someone said “If you think education is expensive, wait until you see the costs of ignorance.” Well, here we are!

  15. The Republican Party has been led into dysfunction by corrupt leadership. Think Elizabeth Holmes. They’ve been sold “down river” for wealth and ambition for ever more power. It’s an old story of corporations with a stellar past being bought by a wealthy enough parasitic stakeholder. McConnell and McCarthy and others on the board of directors know it but admitting it would break them of rank and privilege. They were instrumental in the sale and lack the courage to warn others.

    The same thing happened to Fox Entertainment when they sold out to the Murdoch family.

    Corruption becomes a crime only when you leave behind prosecutable evidence of it and Trump, pumped up by the specter of unlimited power, got stupid when it was most costly for him to.

    Like Putin, he’d kill for a do over now, but actions are one way streets. He’s done himself in but is of a mind to try to extract himself regardless of other consequences. It’s the desperation of quick sand.

    CNN regards his consequences as the best in entertainment. I sort of agree with them after a life long regard of Trump as a NYC thug taunting the public and press and prosecutors, at least until they step over the line into loser-hood.

  16. Well, Biden did graduate at the bottom of his class,and he has been known for his use of plagiarism.

    It really is Biden’s America. Trump and Biden,only in America could these clowns lower the bar whilst rising to $ucce$$.

  17. The distinction Sheila reinforces today is one of which it is too easy to lose sight.
    Trump, a master of manipulation, did not have to spell out his wishes in direct
    words, did not have to tell the 1/6 crowd of bozos “I hate losing, so go, and disrupt
    congress’ count, so I can be the winner!”
    Max, I was anti-Nixon from the get-go, but never heard of him challenging any results.

  18. Ian. Evidence please. Verifiable, not just someone else’s unsubstantiated opinion. Biden’s lifetime of public service is to his credit. While Trump was swindling his way to wealth, Biden was serving honorably in Congress. Neither is a clown. Trump is a danger to America and Biden supports the highest American ideals.

  19. I can just imagine the “civics test” Vivek Ramaswamy would have:

    – Name the three branches of government
    – Who was the first president of the US?
    – What is the capital city of your state?
    – How many states are in the United States?
    – Is Puerto Rico a state?

    We need critical thinking civics education!

  20. I taught American Government, Political Science and U.S. History for 33 years. Not a single student would have left those classes without the knowledge and exposure to limits to free speech. The whole world is a theoretical crowded theatre in which one cannot call FIRE when there is no fire. Neither slander, verbally assault , nor engage seditious rhetoric.
    Someone once said “No citizens can expect to be both ignorant and free.”

  21. The Constitution our forefathers ratified in 1789 did not provide for the limitations of what government can and can’t do in re citizen’s rights. That omission was remedied two years later (1791) with their adoption of the first Ten Amendments (aka the Bill of Rights). Subsequent Supreme holdings (even though the present court selectively applies the doctrine of stare decisis – see Dobbs) have defined what our predecessors had in mind with several landmark decisions.

    I think our forefathers in adopting the Constitution and the Bill of Rights following did not intend to provide freedom of speech as a means and cover for attempts to overthrow our government and trash the Constitution and its Amendments which they had so carefully crafted for posterity, so they prohibited government but not individuals from infringing on such right they established. Thus the question of who has or does not have the freedom of speech is misunderstood, i. e., who has it, when defamation becomes applicable etc. (see NYT v. Sullivan).

    I am of the opinion that the current state of the law in re defamation is correct, but it is what the Supreme Court feels the law should be that is important, and with the present makeup of such court in its spotty application of the doctrine of stare decisis, fear that NYT v. Sullivan and other cases that depended upon the criteria of that landmark decision are in peril.

  22. Ramaswamy’s civics test for voters age 18-24: why stop there? Test all voters and all candidates. Trump has certainly demonstrated that even presidential candidates may be totally ignorant of the way government works!

  23. Lester – answer to the second question on your civics test – John Hanson – do I get bonus points for not saying George Washington?

    Sheila – sorry I never had the opportunity to sit in one of your classes. I think I would have really enjoyed them. Another great post.

  24. Sharon Miller so much hate ha. Biden is only a puppet. He doesn’t come close the intelligence of Putin who was the head of the KGB at one time. Biden is just a corrupt President thats ten times worse than Nixon. Nixon covered up a break in and for that was forced to resign. Biden sat in on meetings with his son, lied about it, sent verification he was glad Archer was starting a business with his son in a letter with White House letterhead and several other corrupt politicians have the freedom of speech to outright lie that he was simply talking about the weather, oh please.
    CNN mentioned Trump over 700 times the day Archer testified and barely mentioned his testimony, maybe 40 times in comparison. Washington DC is corrupt because people don’t want to know about it.

  25. Professor: Your blog is amazing. I learn something new everyday.

    And to the folks responding: You are all so smart! I can’t wait to read your comments because they make me want to explode! You prove the Professor’s point every single comment! Thank you for proving her point. I learn something new everyday reading your comments. I learn that my home country is in terrible trouble and I need to get back so that I can make sure that everyone else is educated about civics. I think I’ll take a teaching job when I get back to give those needing it, some true lessons on how the country is run.

    Thanks for the moments of clarity everyone!


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