Some outlets privileged Trump’s bogus argument that the indictment violates his First Amendment rights

• Politico published an article with the headline “Trump lawyer blasts indictment as attack on free speech,” repeating, without context of its own, those misleading claims by Trump attorney John Lauro. Politico simply transcribed claims Lauro made in a CNN interview: “This is an attack on free speech and political advocacy. And there’s nothing that’s more protected under the First Amendment than political speech. … Our defense is going to be focusing on the fact that what we have now is an administration that has criminalized the free speech and advocacy of a prior administration.” Politico also quoted from a Lauro interview on Fox News: “This is unprecedented. It affects not just Donald Trump — it affects every American who now realizes that the First Amendment is under assault.” [Politico, 8/2/23]
• The Hill quoted Rudy Giuliani saying that special counsel Jack Smith’s “legacy” will be “violating the rights of free speech of an American citizen. … You don’t get to violate people’s First Amendment rights, Smith.” Giuliani, formerly a lawyer and campaign dirty trickster for Trump, is widely reported to be an unindicted co-conspirator in the most recent indictment. [The Hill, 8/2/23]
• The New York Times also wrote an article bearing the irresponsible headline “Trump election charges set up clash of lies versus free speech.” The Times also quoted an interview of Lauro making a similar argument that the indictment attacks Trump’s right to freedom of speech. It also quoted MAGA-aligned Rep. Elise Stefanik (R-NY) saying that Trump had “every right under the First Amendment to correctly raise concerns about election integrity in 2020.” Unlike Politico, the Times did note that the indictment alleged that Trump used his election lies to try to persuade others to commit fraud. The Times also quoted Duke University law professor Samuel W. Buell, who pointed out that “there is no First Amendment privilege for giving directions or suggestions to other people to engage in illegal acts,” adding: “Tony Soprano can’t invoke the First Amendment for telling his crew he wants someone whacked.” [The New York Times, 8/2/23]

In contrast to these other outlets, the Associated Press article covering this flimsy defense of Trump provided ample commentary from legal experts to debunk it. 

The piece explained that the indictment conceded “that Trump had the right to falsely claim that fraud had cost him the election and to legally challenge the results,” but noted that it also stated that “the conduct of Trump and six co-conspirators he’s alleged to have plotted with went far beyond speech.”

It quoted George Washington University law professor Mary Anne Franks arguing of Trump’s election lies, “When you say it to another person and the two of you speak in a way and exchange information in a way that leads to action — that you want to take action to do something with that speech — then arguably it becomes unprotected.”

And it cited Cornell Law School constitutional law expert Michael Dorf, who argued: “Insofar as he’s giving instructions, and planning to do things that are themselves illegal and involve action, like the signing of false certificates and so forth, that’s not a very good defense.”

Conservative guests also made false arguments on-air

During an interview with CNN, former Trump-appointed Attorney General Bill Barr, who was a material witness to Trump’s conduct in the months following the election, explained why Trump’s defense is baseless. “All conspiracies involve speech, and all fraud involves speech,” Barr explained. “So, free speech doesn’t give you the right to engage in a fraudulent conspiracy.”

Contrary to Barr’s straightforward assertions about this case, some of the conservative guests to whom mainstream outlets are turning are providing no added value to discussions of the indictment, instead propagating misleading claims: 

• In the CNN segment transcribed by Politico, anchor Kaitlan Collins was forced to push back against Lauro’s contentions that Trump’s conduct was protected by the First Amendment. “You talk about free speech. [Special counsel] Jack Smith noted Trump's right to free speech and to contest the election results,” Collins told Lauro. “But what he says in this indictment is that when that did not work, the defendant, your client, pursued unlawful means of discounting legitimate votes and subverting the election results. And that is why he is being charged here, not because of anything related to free speech.” [CNN, The Source, 8/1/23]
• Lauro also forced the hosts of CBS Mornings to spend time restating parts of the indictment, with a co-host saying before doing so, “The clock is ticking.” After Lauro claimed, “This is the first time that political speech has been criminalized in the history of the United States,” CBS senior White House correspondent Ed O’Keefe replied, “We should point out here on page 2 that he made very clear” that Trump had the right to lie about the election results. After Lauro claimed that Trump’s “political advocacy and political action” were protected, co-host Gayle King said, “I know the clock is ticking,” before explaining that Trump was repeatedly told by many legal advisers that he had lost the election. [CBS News, CBS Mornings, 8/2/23]
• In another CNN segment, former Trump attorney Tim Parlatore claimed: “You know, when I read it through, really the key element to me is knowledge and whether he knew that the claims of fraud were false. And I didn't really see anything in that indictment that really spoke to that point.” CNN anchor Poppy Harlow explained, “Tim, just to that point, ‘knowingly’ appears 36 times throughout this,” with “specific instances” in which Trump personally acknowledged that he had lost. [CNN, CNN This Morning, 8/3/23]
• Parlatore appeared later on MSNBC, where co-anchors Andrea Mitchell and Chris Jansing addressed his defenses of the fake electors and pointed out that Trump was informed about the election. While Parlatore insisted that Trump’s knowledge about the election could not be proved, Mitchell explained that Trump had been “briefed by many officials, many officials from the Justice Department and elsewhere, about the election being over, including Donald Trump's own family who were members of his staff.” [MSNBC, Andrea Mitchell Reports, 8/3/23]