No, SHUT UP, New York Times, The First Amendment Does Not Give You The Right To Overthrow The Government.

GTFOH with that.

Photo by Colin Lloyd on Unsplash

Okay, pop quiz time. Ready?

1. Ricky posts a series of tweets designed to convince Black voters that they can vote by text from the comfort of home. Nearly 5,000 people text “Hillary” to the number provided. Is he guilty of a crime?

   1. Yes, obviously.

   2. No, because FIRST AMENDMENT.

   3. WTF?

2. Mike has a secret conversation with a foreign spy which is picked up on a wiretap. When the FBI comes to ask him about it, he denies it happened. Did he break the law against making false statements to the government?

   1. Yes, obviously.

   2. No, because FIRST AMENDMENT.

   3. WTF?

3. Alan breaks into a restricted building during a protest of what he sincerely believes is an unjust government proceeding. Is he guilty of trespassing?

   1. Yes, obviously.

   2. No, because this is protected speech under the FIRST AMENDMENT.

   3. WTF?

If you answered “a” to all of the above, congratulations, you are smarter than the New York Times’s Maggie Haberman and Mike Schmidt, who yesterday published a story credulously titled “Trump Election Charges Set Up Clash of Lies Versus Free Speech.” Also Trump’s mouth-breathing followers, but that goes without saying.

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In the wake of the third Trump indictment, Trump’s lawyer John Lauro has been spamming the airwaves with nonsense about Trump’s free speech right to attempt to overthrow the government.

“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,” Lauro told CNN’s Kaitlan Collins Tuesday night after the indictment dropped. “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 during the time that there’s a political election going on. That’s unprecedented.”

And if Trump were being charged with lying about the election being stolen, that would make perfect sense. Leaving aside defamation, you do, indeed, have the right to say pretty much any goddamn stupid thing you want in this country, even if it’s false.

BUT HE IS NOT.

Donald Trump is charged with conspiring to defraud the government, obstruct the election certification, and deprive millions of Americans of their franchise. And that is not protected by the First Amendment.

There is no free speech right to “defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government,” i.e., comply with the provisions of the Electoral Count Act. You don’t have a First Amendment right to pressure the vice president to illegally discard electoral votes.

There’s no protection for conspiring with state legislators to claw back electors based on spurious allegations of fraud, as Rudy Giuliani did, admitting to Arizona House Speaker Rusty Bowers that “We don’t have the evidence, but we have lots of theories.” Nor is there a First Amendment shield for corralling slates of fake electors and conspiring to have them sign false certifications to submit to the National Archives as if they’re real.

That’s a preposterous argument, which is belied by the three real life examples above. As discussed (by me) on the Opening Arguments podcast, shitposter Douglass Mackey, AKA Ricky Vaughn, posted a series of ads claiming to be “Paid for by Hillary For President 2016.” The ads exhorted readers to “Avoid the Line. Vote from Home,” “Text ‘Hillary’ to 59925,” and “Vote for Hillary and be a part of history.” Like Trump, Mackey was charged under 18 USC § 241, a Reconstruction Era statute meant to protect the right of Black Americans to vote. His First Amendment defenses were rejected by a New York jury in March.

Similarly, as journalist Marcy Wheeler notes in a post reading Haberman and Schmidt and the Washington Post’s Devlin Barrett and Josh Dawsey for filth, a recent opinion by conservative Judge Royce Lamberth puts paid to the George Costanza defense that it’s not a lie conspiracy to defraud if you really believe it.

In the case of January 6 defendant Alan Hostetter, who, like Trump, was charged with obstructing and conspiring to obstruct an official proceeding, Judge Lamberth said in his oral order:

Before I start, I want to make one thing clear about all the charges. Mr. Hostetter is not being prosecuted for engaging in protected First Amendment activity, and I am making my decision without regard to his political beliefs, which I believe he holds sincerely. Mr. Hostetter has a right to believe whatever he likes about the 2020 Presidential Election, and to voice those opinions. But the First Amendment does not give anyone a right to obstruct or impede Congress by making it impossible for them to do their jobs safely. And it certainly does not give anyone right to enter a restricted area while carrying a dangerous weapon.

(Mike Flynn was a freebie, ‘cause screw that guy.)

Lauro’s arguments don’t even hang together by their own logic.

“The final ask that Mr. Trump made to Vice President Pence was simply pause the voting. There's nothing inherently unconstitutional or illegal about that,” he blustered to Collins, adding, “In fact, he had an opinion from a very well known constitutional scholar that said that’s fine.”

This would be an apparent reference to John Eastman, AKA “Co-Conspirator 2.” But no other lawyers besides Eastman and Giuliani were saying that Pence had the right to unilaterally reject electors, or even adjourn Congress to address the bogus fraud allegations. Indeed, Eastman himself acknowledged this legal reality in emails exchanged with Pence’s legal advisor Greg Jacob during the siege of the Capitol.

After praising George W. Bush for ignoring “minor procedural statutes” on the basis of “statesmanship advice,” Eastman implored Jacob to get Pence to take advantage of the pause in certification provided by the insurrectionists to violate the law some more.

So now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed, I implore you to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here.

So much for the “very well known constitutional scholar” telling Trump it was “fine.”

Even Bill Barr isn’t buying that First Amendment bullshit.

"He can say whatever he wants. He can even lie. He can even tell people that the election was stolen, when he knew better," Barr told Collins."But that does not protect you from entering into a conspiracy. All conspiracies involve speech, and all fraud involves speech. So, free speech doesn't give you the right to engage in a fraudulent conspiracy."

And when you’ve lost Jowly Roy Cohn …

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