Trump’s legal claims about ‘political speech’ are full of hot air

Last Thursday, Fulton County Superior Court Judge Scott McAfee heard arguments on Donald Trump’s bid to toss out the indictment in the Georgia election interference case. Trump asserts that he was engaged in “political speech” that’s protected by the First Amendment — even if what he said was false. Trump already lost this argument once, having raised it with District Judge Tanya Chutkan in the Jan. 6 case against him in Washington, D.C. He’ll likely lose it again.

While legally weak, Trump’s First Amendment arguments warrant attention for a separate reason ­— he has raised them in connection with his novel claim of total immunity for crimes committed in office, which the Supreme Court has agreed to entertain.

The scope of First Amendment protections are widely misunderstood in America. Although the First Amendment protects free speech, that doesn’t mean “anything goes.” Speech can be criminal, and if it is, the government can prosecute. As Trump Attorney General Bill Barr told “Face the Nation” last August, “a conspiracy crime is completed at the time it’s agreed to and the first steps are taken.” Although an agreement to enter into a conspiracy involves speech, Barr accordingly concluded, “I don’t think [the Trump indictment] runs afoul of the First Amendment.”

Likewise, Trump’s repeated defamation of E. Jean Carroll, whom a jury found he sexually abused, involved speech; he’s appealing what amounts to a $92 million judgment that he defamed her. It’s also illegal to train terrorists, to “speak” though possession of child sex abuse imagery, or to threaten to harm the president — even if such threats convey a deeply held political viewpoint.

Trump has argued repeatedly that his false claims that the 2020 presidential election was stolen — including his speech preceding the Jan. 6 riot, in which he urged supporters to “fight like hell” — constituted “matters of public concern” about “the integrity of the 2020 election,” which his lawyer called “the height of political speech.” Trump used the same matters-of-public-concern line to argue for broad criminal immunity for presidents before the Court of Appeals for the D.C. Circuit, which rejected his claim that “speech on matters of public concern, as a categorical matter, is an official presidential function” and thus immune from prosecution. Speech that’s part of the commission of a crime does not magically obliterate the crime.

The phrase “matters of public concern” has never been about presidential criminal immunity, however. (And, for now at least, presidential criminal immunity has not existed anywhere in the law.) Instead, it comes from a line of Supreme Court precedent involving speech by public officials. The court has long held that “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” So, the government can actually restrict the speech of public employees more than it can restrict the speech of private citizens. Trump was president when he engaged in the lies about the 2020 election that gave rise to multiple criminal indictments. Trump, as president, was a public employee.

That said, the Supreme Court has also held that the government’s ability to restrict the speech of its employees is not unlimited. When a government employee speaks on a matter of public concern and is fired for it, the court has applied a balancing test, weighing the interests of the employee “as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

In Connick v. Myers (1982), the Supreme Court thus held that an assistant district attorney who was fired for insubordination after circulating a questionnaire about employee morale was not protected under the First Amendment when she was at the same time upset about being transferred: “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”

Of course, it’s impossible to liken a president — who has unparalleled power in government and can only be fired by impeachment or at the ballot box — with a disgruntled former employee. The underlying concern in these cases is over government attempts “to suppress the rights of public employees to participate in public affairs” by, for example, extracting loyalty oaths or denying employment based on membership in a competing political party. That worry hardly applies to presidents.

The government can restrict the speech of its employees if it’s in the public interest — which is precisely why the Jan. 6 and Georgia cases must go to trial. As the Supreme Court explained in Connick, as far back as 1882 it has “noted the government’s legitimate purpose in ‘promot[ing] efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service.’”

In the words of Bill Barr, by Jan. 6, 2021 “the states had already made the official and authoritative determination as to who won in those states and they sent the votes and certified them to Congress,” and “the allegation, essentially, by the government is that at that point, the president conspired, entered into a plan, a scheme, that involved a lot of deceit, the object of which was to erase those votes, to nullify those lawful votes.”

If Trump were a regular employee, such “speech” could have been grounds for lawful termination. As president, he can’t hide behind the First Amendment any more than the over 1,200 followers who have already been prosecuted for engaging in what his Republican enablers have called a “peaceful protest” could. The Supreme Court certainly shouldn’t manufacture presidential criminal immunity under the guise of that “speech,” either.

Kimberly Wehle is author of “How to Read the Constitution — and Why.” Her forthcoming book, “Pardon Power: How the Pardon System Works – and Why,” is out in September. Follow her @kimwehle.

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