Trump's lawyers argue that the charges in the Georgia election interference case seek to criminalize political speech and advocacy conduct, which is protected by the First Amendment.
Former President Donald Trump is facing wrongful prosecution for political speech that is protected by the First Amendment to the U.S. Constitution, according to a defense attorney's argument on Thursday. Georgia Trump's defense attorney, Steve Sadow, argued in a motions hearing in Fulton County Superior Court that conspiracy charges against his client should be dropped because they go against U.S. Supreme Court precedent protecting falsehoods and lies.
During a motions hearing in Fulton County Superior Court, Atlanta-based lawyer Steve Sadow argued that conspiracy charges against his client should be dismissed because they run afoul of U.S. Supreme Court precedent protecting specifically falsehoods and lies.
In the sprawling, 98-page, 41-count criminal indictment filed by Fulton County prosecutors against Trump and others in August 2023, several conspiracy counts allege conduct that includes fraud.
Trump's defense says the allegations of fraud don't hold up to legal scrutiny because they are based on disallowed criminalization of speech and are engineered to reach a preordained conclusion.
Trump's lead attorney told Judge Scott McAfee on Thursday, “The only thing that makes it fraudulent is the state saying it’s false. The only reason it becomes unprotected, in the state’s opinion, is because they call it false.”
In earlier filed motions, Sadow outlined arguments that were extensively discussed during the hearing.
One defense motion argues that some of Trump's well-known 2021 requests to Georgia Secretary of State Brad Raffensperger “are plainly protected by the First Amendment and cannot plausibly form the basis of any prosecution.
Importantly, the alleged criminal conduct underlying this indictment consists entirely of core political speech at the zenith of First Amendment protections, another defense motion argues. “President Trump is the first person to face criminal charges for such core political behavior.”
During the hearing, the defense labeled many of Trump’s activities in relation to the 2020 presidential election as 'the height of political speech' and said prosecutors’ efforts to use words like 'unlawful' in charging documents simply cannot erase that.
Sadow quoted, at length, the following passage from a Justice Samuel Alito dissent in a landmark First Amendment case:
Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today’s accepted wisdom sometimes turns out to be mistaken. And in these contexts, “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’”
Sadow said, “That’s the essence of what we have right here. That’s the facts that have been alleged. Essentially, the state’s position is: because, as alleged, what President Trump said, speech wise, or expressed either through his speech or his conduct, which is still freedom of expression, is false, in the eyes of the state, it’s lost all protections of the First Amendment.”
“If anything, under the circumstances, it needs more protection, not less protection,” Sadow continued.
The defense argued that the state's position on the conspiracy charges is based on mere allegations of fraud being enough to support the charges. Trump's lawyer strongly disagreed with this interpretation of the law.
Sadow said that it is important to consider the speech itself and its connection to specific statutes. He argued that the falsity of the speech is the only evidence the state has.
The main point of the defense's argument is the challenge of how free speech laws are applied. as-applied challenge The defense argues that the prosecutors assumed Trump was trying to do something illegal and then used his speech to try and prove it, which they claim is putting the cart before the horse.
Sadow suggested that if the focus was on a legitimate concern about the election's validity, Trump's speech would be protected. He emphasized that the state's goal of proving unlawful election theft should be reconsidered.
The defense also moved to dismiss other counts in the indictment because they believe the Georgia laws criminalizing false statements without a materiality component are unconstitutional when applied to political discourse.
Trump's attorney believes that the essence of First Amendment law protects political speech despite some uncertainty about the racketeering charge.RICOThe charge of racketeering is a closer call, according to Trump's attorney, but he insists that political speech is protected by the First Amendment.
Sadow told the court that everything alleged against president Trump is political speech, and without political speech, there would be no criminal charges.
The state insisted that Trump was not being prosecuted solely for his speech or its falsity. They claimed that his speech and expression are part of a pattern of criminal conduct.
The prosecutor told the court that discussing issues of public concern or core political speech does not exempt someone from indictment if that speech is used for illegal activities as part of a pattern of criminal conduct.