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Trump’s Hollow Free-Speech Defense

In a liberal democracy, deliberately undermining the electoral system is one of the gravest harms imaginable. The idea that such behavior would be protected by the right to free speech is contradicted by legal precedent, common sense, and the very structure of the democratic order itself.

NEW YORK – In response to the federal indictment accusing Donald Trump of conspiring to overturn the 2020 US presidential election and remain in office, Trump’s lawyers and defenders argue that he was merely exercising his right to free speech under the First Amendment of the US Constitution. To understand the case, one therefore must understand where free speech ends and criminal fraud begins.

The fact that Trump’s actions consisted of words does not make them constitutionally protected. On the contrary, numerous crimes imply limits on speech. For example, it is illegal to lie to law-enforcement officials or to a jury, and to misrepresent a product as safe when it isn’t. You may not intentionally incite imminent violence, knowingly defame someone’s reputation, or represent minors in sexually explicit ways. These and other information-limiting laws exist for good reason: they protect society from significant harms.

In a liberal democracy, deliberately undermining the electoral system may be the gravest harm of all. That is why there are laws to protect the legitimacy and fairness of elections by prohibiting the knowing or reckless dissemination of demonstrably false statements. In many states, you may not deliberately interfere with voter enfranchisement by lying about how to cast a ballot or by creating fake ballots. Nor may you lie about a campaign affiliation or in campaign statements or political advertisements. In each case, intentionally misleading or confusing voters about issues or candidates may be found to be illegal.