Donald Trump in court: Will his First Amendment defense hold up?

Donald Trump speaking into a microphone
Former president of The United States of America Donald Trump is indicted by a federal grand jury on four counts tied to his efforts to undermine and overturn the 2020 election results leading to the January 6th 2021 insurrection at The Capitol Building. – File Photo by: zz/Dennis Van Tine/STAR MAX/IPx via AP

Former President Donald Trump appeared in court on Thursday on felony charges related to his alleged efforts to overturn the 2020 presidential election results. For many experts and observers, an indictment tied to Trump’s “big lie” was long in the cards—and all but expected. 

During media interviews since the charges were unveiled this week, Trump’s attorneys have put forward an argument in his defense: that the speech for which he is being indicted is protected under the First Amendment. 

headshot of Daniel Urman
Daniel Urman, director of hybrid and online programs in the School of Law, and director of the Law and Public Policy minor poses for a portrait. Photo by Matthew Modoono/Northeastern University

What’s more, they contend that the actions Trump took in the aftermath of the election, which include allegedly participating in a scheme to organize fraudulent slates of electors, among other moves, were on the advice of counsel. All in all, the argument doesn’t hold water, says Dan Urman, director of the law and public policy minor at Northeastern, who teaches courses on the Supreme Court. 

“The bottom line is the First Amendment does not protect criminal solicitations,” Urman says. “That’s what precedent tells us.”

On the point of whether Trump is innocent because he was simply listening to his attorneys, Urman says “ignorance of the law has never been an effective defense.”

On Tuesday, special counsel Jack Smith announced a handful of new charges against the former president, including three counts of conspiracy and one count of obstructing or attempting to obstruct an official proceeding. The indictment is referred to as a “speaking” indictment because of the sheer detail federal prosecutors go into making their case—more than is required by law. 

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