Former President Donald Trump is a master of free speech. His unvarnished and unpretentious speaking style, along with his distinctive cadence, propelled him all the way to the White House. If Ronald Reagan was the Great Communicator, Trump is the Extraordinary Agitator. He gets your attention.
It’s remarkable, then, that none of his off-the-cuff, often improvised speech has ever exposed him to criminal liability – until now. Revelations from the House Committee investigating the Jan. 6 attack on the Capitol and disclosures from the investigation into efforts to overturn the Georgia presidential vote suggest that Trump’s words may have crossed the line into criminal conduct.
To be clear, that’s not easy to do in a country founded on freedom. The First Amendment gives us extraordinary latitude to say all kinds of inflammatory things, particularly when directed toward public officials.
Want to shout, “Our governor deserves to be dragged out of his office and hanged”? That would be fine with everyone except the governor. Or maybe you’re feeling really ambitious and declare, “Our only path to real justice is to take up arms and stage a revolution!” That too is permitted under the First Amendment.
What’s not protected? In 1969, the U.S. Supreme Court concluded that a call for violence or mob action can only be punished if it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In other words, did you try to get people so worked up that they would try to commit violent acts almost immediately?
Which brings us back to Trump on Jan. 6. What sounded like just hype and hyperbole more than 18 months ago now looks like something altogether different. From his invitation to followers to join him for a “wild” Jan. 6 rally to his call to “fight like hell” to his exhortation to march on the Capitol, Trump’s words suggest a planned escalation.
We learned in the hearings that Trump was aware his supporters were heavily armed and unwilling to risk going through event security, but he didn’t hesitate to unleash them on Congress. Even after he saw the violent outcome on Fox News, he egged on the crowd with a tweet about his vice president lacking the “courage to do what was necessary,” further endangering Mike Pence.
More potential liability lies in Georgia. After Trump lost the state in the presidential election, he called Georgia Secretary of State Brad Raffensperger, suggested that the official could be prosecuted for not throwing out the results, and said, “I just want to find 11,780 votes, which is one more than we have because we won the state.”
“Find” the votes? As in, “Look around, you may have missed a box” or “Mr. Bank Teller, I hope to find $100,000 in my satchel when I leave your establishment”?
There are times when Trump’s outbursts seem to be improvisational theater, lashing out at handy targets and pressuring others to bend to his will. But given revelations about fake electors and talk of seizing voting machines, how much of Trump’s loose talk was actually strategic?
The Bill of Rights is an astounding document that has set this nation apart from all others. In 1791, the first generation of Americans made promises that have largely gone unbroken in the intervening 231 years.
The First Amendment essentially said we could say or write anything at any time without fear of prosecution. The Second Amendment promised the right to bear arms. While both guarantees are controversial, they are also undeniably powerful.
Those liberties give way, though, when we use them to commit a crime. You have a right to use a gun, but there’s no protection for using it to hold up a store. You have a right to say what you’d like, but there’s no protection for using it to defraud or threaten someone, or to incite a riot.
In 2016, Trump famously bragged about the loyalty of his base, saying, “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.”
It proved to be a remarkably prescient statement, though it overlooked the likely legal consequences of shooting someone in the streets of Manhattan.
Trump has been similarly dismissive of any consequences for his post-election statements. The conversation with Raffensperger was “perfect,” he has said.
Prosecutors will have to decide whether to prosecute the former president. It’s Trump’s unique place in history that provides him some protection. After all, we don’t make a practice of prosecuting past presidents, particularly for their speech.
Then again, past presidents haven’t made a practice of trying to overturn elections.
Ken Paulson is the director of the Free Speech Center at Middle Tennessee State University, a lawyer and a former editor of USA TODAY.
The Free Speech Center newsletter offers a digest of First Amendment and news media-related news every other week. Subscribe for free here: https://bit.ly/3kG9uiJ