BY JONATHAN TURLEY, OPINION CONTRIBUTOR - 08/05/23 10:30 AM ET
TheHill.com
The latest federal indictment of former President Donald Trump was handed down this week with all of the authority of papal infallibility. Pundits lined up to proclaim that case as the greatest prosecution in history.
Former Obama administration acting Solicitor General Neil Katyal even declared that the indictment touched off “the biggest legal case in our lifetimes, perhaps almost ever. It’s up there with cases like Dred Scott, it is up there with Brown v. Board of Education.” What was missing was any serious consideration of the implications of allowing the government to criminalize false statements in a campaign.
Trump was not charged with conspiracy to incite violence or insurrection. Rather, he was charged because he “spread lies that there had been outcome-determinative fraud in the election and that he had actually won.”
In order to secure convictions for this, Special Counsel Jack Smith would need to bulldoze through not just the First Amendment but also existing case law holding that even false statements are protected.
The government acknowledges that the Constitution protects false statements made in campaigns, but it insists that Trump must have known that his statements were false and therefore was engaged in fraudulent statements to obstruct or challenge electoral results.
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https://thehill.com/opinion/criminal-justice/4137650-even-lies-are-protected-speech-new-trump-indictment-bulldozes-the-first-amendment/
