Consider This from NPR - Would A Free Speech Defense Work For Donald Trump In Court?

Episode Date: August 3, 2023

Former President Donald Trump pleaded not guilty to criminal charges related to efforts to overturn the results of the 2020 election. And a member of his legal team told NPR that Trump plans to invoke the right to freedom of speech as part of his defense.To learn how a free speech defense would work for the former president in court, we hear from Ciara Torres-Spelliscy, a professor at Stetson University's College of Law in Florida. And former acting solicitor general of the United States, Neal Katyal, tells us about Tanya Chutkan, the U.S. district judge assigned to Trump's case.In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This message comes from Indiana University. Indiana University performs breakthrough research every year, making discoveries that improve human health, combat climate change, and move society forward. More at iu.edu forward. Donald Trump flew from his New Jersey golf club to Washington, D.C. on Thursday afternoon for his arraignment at the E. Barrett Prettyman Federal Courthouse. A crowd gathered outside with supporters and protesters often yelling over each other. Lock him up! Lock him up! Then, just minutes before his motorcade arrived, Trump appeared before a magistrate and pleaded not guilty to four felony charges

related to his attempt to overturn the results of the 2020 election. This is the same courthouse where more than a thousand of his supporters have been charged for their role in the January 6th attack on the Capitol. All entities step back! All entities step back up to the upper deck! It is now Trump himself facing charges related to his actions that day and in the days leading up to January 6th. Here's special counsel Jack Smith laying out those charges this week. Conspiring to defraud the United States, conspiring to disenfranchise voters, conspiring and attempting to obstruct an official proceeding. How will the former president

defend himself from those charges? NPR put the question to John Lauro, one of Trump's attorneys for this case. He described his client's defense strategy this way. It's a very straightforward defense that he had every right to advocate for a position that he believed in and his supporters believed in. Lauro said that even if the prosecution proves that Trump knowingly lied or that he had corrupt intent, which Lauro does not believe they will, that it's still free speech that should be protected by the First Amendment. Political speech covers even information that turns out not to be true. So it's all protected by free speech. But at the bottom, the government will never be able to prove beyond a reasonable doubt, as I said, that President Trump did not believe in the righteousness of his cause. Consider this. How would a free speech defense for Donald Trump

hold up in court? And how might his trial on these charges unfold? That's just ahead. From NPR, I'm Mary Louise Kelly. It is Thursday, August 3rd. This message comes from WISE, the app for doing things in other currencies. Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate with no hidden fees. Download the WISE app today, or visit WISE.com. T's and C's apply. This message comes from Indiana University. Indiana University drives discovery, innovation, and creative endeavors to solve some of society's greatest challenges. Groundbreaking investments in neuroscience, climate change, Alzheimer's research,

and cybersecurity mean IU sets new standards to move the world forward, unlocking cures and solutions that lead to a better future for all. More at iu.edu forward. This message comes from NBC News. Did you know you can listen to Meet the Press as a podcast? Join moderator Kristen Welker for breaking political news, in-depth analysis, and interviews with leaders and newsmakers. Search for Meet the Press and follow now. It's Consider This from NPR. Even before the 2020 election results, Donald Trump was already insinuating that the vote would not be fair.

The only way we're going to lose this election is if the election is rigged. Remember that. After Joe Biden won, Trump continued to cast doubt on the outcome, claiming without any evidence that the election was stolen from him. We're getting ready to win this election. Frankly, we did win this election. This is a major fraud in our nation. Many of Trump's supporters got behind this rhetoric. Thousands of them turned up on January 6th for a Stop the Steal rally in Washington, and then stormed the U.S. Capitol in an attempt to stop Congress from certifying Joe Biden's victory. All this is at the heart of the decision to indict former President Trump on four criminal counts,

including conspiring to defraud the United States and attempting to obstruct an official proceeding. Now, as we heard earlier, Trump has pleaded not guilty, and his attorney, John Lauro, told NPR that Trump plans to invoke the right to freedom of speech as part of his defense. How will that defense hold up? Chara Torres-Spellacy is well-versed in First Amendment law. She teaches at Stetson University's College of Law in Florida. And she explained to my colleague Elsa Chang how this defense might or might not work. Okay, so just to pick up with Trump's lawyer there, John Lauro, he's been arguing that this third indictment against the former president is an attack on free speech. And he told Sasha Pfeiffer yesterday this. This is the first time in

the history of the United States where a sitting administration is criminalizing speech against a prior administration. OK. Is that a fair characterization? On its face, does this indictment that the defendant had the right to say what he wanted to say about the election. What he didn't have a right to do is try to overthrow the results of that election. Okay. So let me just be more specific. To what extent does the First Amendment allow people to state falsehoods? So the Supreme Court has been very lenient with liars, and the case that comes to mind is one called Alvarez. The Supreme Court said that Mr. Alvarez was able to lie about having a military record that he simply did not have. He had a First Amendment right to such lying. What about when a defendant is knowingly committing fraud? There is a more recent case called Hansen that was just handed down by the Supreme Court in this year. The court

was really clear that the First Amendment doesn't shield fraud. And in the Hansen case, it had to do with defrauding immigrants. Hansen lied to them. He earned millions of dollars lying to them. And when he was prosecuted, he argued, no, no, no, it's the First Amendment. I can say what I want to these immigrants. And the Supreme Court shut that down and said, no, when you are defrauding another person, when you're making money off of such lies, you don't get to use the First Amendment as a shield. Okay, so then how important is it for the prosecution to prove that Trump knew he actually

lost the election, yet proceeded to lie about it and get others to cooperate or conspire with him to try to overturn the election results. It is more damning if Trump is doing this with the knowledge that he lost the election. But when he decides to pressure the Secretary of State of Georgia, for example, to do something illegal on his behalf. That is the intent that matters. He doesn't have the authority under our U.S. Constitution to tell a state official to do anything. There is no power from the President of the United States that flows to a state official, like the Secretary of State of Georgia, where he can ask that person to manufacture votes. Right. You don't have a First Amendment right to encourage or solicit others to engage in

unlawful behavior. Yes. And President Trump simply did not have the legal authority to do what he is accused of doing. And he thus violated federal criminal law. That was First Amendment law expert Chara Torres-Spellacy speaking with Elsa Chang. When Donald Trump's case goes to trial, the judge who will preside is Tanya Chetkin. She's the U.S. District Judge randomly assigned to this case. And to learn more about her, we called Neil Katyal. He's the former acting Solicitor General of the United States and has argued cases before her, as well as cases before the Supreme Court.

My colleague, Sasha Pfeiffer, spoke with Katyal. I want to read you a quote from this judge. She wrote, quote, Presidents are not kings and a plaintiff is not president, end of quote. That's from when she ruled against former President Trump in 2021. And that ruling allowed the House January 6th Select Committee to access his White House internal files. Do you read anything into that quote and how it might affect her viewpoint in this case? to one by the United States Supreme Court, which obviously has a bunch of appointees from Donald Trump. And yet it was resoundingly rejected, including by all three of the nominees that

Donald Trump put on the Supreme Court. So I don't read anything into that except that Judge Shetkin's going to approach the issues straight up. She has an enormous, enormous reputation in Washington, D.C. among lawyers, whether you're a Republican lawyer or a Democratic lawyer, whether you're a prosecutor or a defense attorney, she's easily one of the most respected judges in this city. Judge Chutkin is also one of the federal judges presiding over the trials of suspected January 6th attackers. The Associated Press reports that each of the 38 sentences she's handed down involve jail time, and she's considered a relatively harsh sentence, or at least compared to her peers handling these cases. Does that tell you anything relevant to this case?

No, again, I don't think so. I think almost all of these January 6th defendants are being sentenced in accordance with the government's requests, both in her courtroom and other courtrooms in Washington, D.C. And I don't think we can draw too much from the few instances in which she has rejected the government's request and gone upward and sentenced someone to a higher amount. Her sentencing decisions are understood to be well within the mainstream of what's going on in the D.C. courthouse. And if anything, I would say she has a reputation for being a little bit of a defendant-friendly judge.

I think it probably comes from the fact that she was herself a public defender, a defense attorney for many, many years before she joined the bench. And so she's someone who I think comes to the bench with a real hearty appreciation for the rights of criminal defendants. And I think that should give Donald Trump some comfort. This is not a judge who's known to be on one side or the other of issues, but someone who takes the issues that are before her and treats them fairly. Although generally, she's considered to have a liberal background, and she was appointed to the federal bench by President Obama. And as a result, some of Trump supporters are already attacking her in the court of public opinion. Although I

understand, and you've indicated this, that you see her selection as something of a somewhat beneficial for the defense. How is that? In what way? First of all, I can't, I think it's so dangerous to think about a judge just because of the president who appointed them and do what Donald Trump has called them Obama judges or things like that, which he did, you know, many times. When you put on that black rope, you cease to be a political actor. Many judges, of course, weren't even political actors, but even former politicians. We have them on the bench and we understand that they reach fair results. So that's, I think, the first thing I'd say. The second is, I think it's a real mistake to think about liberal versus conservative and liberal meaning, oh, that's bad for Donald Trump.

It's mostly liberal judges who are very pro-criminal defendants and defendants' rights. And Donald Trump is, of course, a criminal defendant here. So I think it's just the wrong matrix to think about it. The right way to think about it is, is this a judge who's meticulous in her work? Is it someone who listens fairly to both sides and reaches an appropriate determination? And so far, I've heard not one example, not one in all her years on the bench in which she's accused of doing anything else but being that fair, impartial, hardworking, smart judge that I think her reputation describes her as. That was former Acting Solicitor General of the United States,

Neil Katyal, speaking with my colleague, Sasha Pfeiffer. And for more on how former President Trump's legal troubles will impact the 2024 presidential race, you can listen to today's NPR Politics Podcast. It's Consider This from NPR. I'm Mary Louise Kelly. This message comes from Pushkin. In Revenge of the Tipping Point, bestselling author Malcolm Gladwell returns to the subject of social epidemics and tipping points and the dark side of contagious phenomena. Available wherever books are sold and wherever you get your audiobooks.