For years, some of us have argued that President Donald Trump’s January 6 speech was protected under the First Amendment and that any prosecution would collapse under governing precedent, including Brandenburg vs. Ohio. I was frequently attacked as an apologist for my criticism of Special Prosecutor Jack Smith’s case.war on freedom of expression.‘I wrote about him history of ignoring such constitutional protections in his efforts to prosecute targets at all costs. I also wrote how Smith’s second indictment (which the Post supported) was a direct attack on the First Amendment. Now, years later, the Washington Post has done just that recognized that Trump’s speech was protected and that Smith would have “punched a hole in the First Amendment.”
During this appearance before Congress, Smith’s contempt for the First Amendment was on full display. During his testimony, he was asked by Speaker Jim Jordan (R-Ohio) whether Trump was entitled to First Amendment protection for his speech.
Former Justice Department Special Counsel Jack Smith enters a room in the Rayburn House Office Building to testify before the House Judiciary Committee, part of its oversight of DOJ investigations into President Donald Trump, on Capitol Hill in Washington, Wednesday, Dec. 17, 2025. (J. Scott Applewhite/AP Photo)
Smith responded: “Absolutely not. If they are made to target a lawful government function and they are made with the knowledge of falsehood, no, they are not. That was my point about fraud not being protected by the First Amendment.”
The comment is completely and shockingly incorrect. Smith shows a complete lack of understanding of the First Amendment and Supreme Court precedent.
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First, the Supreme Court has held that knowingly false statements are protected under the First Amendment.
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The The Supreme Court struck down the Stolen Valor Act. In United States v. Alvarezthe Court ruled 6-3 that it is unconstitutional to criminalize lies – in which case it concerns ‘stolen courage’ claims. Likewise, expressing hate-filled lies is protected. In Snyder v. Phelps, also in 2011, the Court said the Westboro Baptist Church’s hateful protests were protected.
Secondly, calling such claims “fraud” does not lead to the conversion of protected expressions into criminal expressions. Trump spoke at a rally about his belief that the election was stolen and should not be certified. Many citizens supported that position. It was clearly protected political expression.
As I discuss in The Indispensable Right: Free Speech in an Age of Anger,” Smith’s prosecution was on a collision course with controlling Supreme Court precedent.
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In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even incitement to violence is protected under the First Amendment unless there is a threat of “threatening lawless action and is likely to incite such action.” Smith would have lost, but he did a history of ignoring such constitutional protections. Such was the case when his conviction of former Virginia Governor Robert F. McDonnell was unanimously overturned for overextending another law.
Despite this, Trump has never been charged with inciting the riot promises from Democratic DC Attorney General Karl Racine to investigate Trump for that crime.
The reason is simple. It was not criminal incitement and Trump’s speech was protected under the First Amendment.
Nevertheless, the Post and other newspapers had the same experts, who assured the public that no such protection existed. For example, Harvard law professor Laurence Tribe has made a litany of such claims, including his own declaration that President Donald Trump (“without any doubt, without any doubt, without any doubt”) could be charged with the attempted assassination of former Vice President Michael Pence.
The Post has now acknowledged that Trump does indeed have First Amendment protection and that Smith posed a constitutional threat. The change reflects a commendable shift in the Post’s editorial staff under owner Jeff Bezos and his new team at the paper.
The Post wrote:
Political speech – including speech about elections, no matter how odious – is strongly protected by the First Amendment. It is not unusual for politicians to take actual liberties. The main check against such deception is public scrutiny, not criminal prosecution.
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Of course, fraud is a crime. But that almost always involves dissembling for money, not political advantage. Smith’s attempt to distinguish between statements that address “a lawful government function” doesn’t work. Most political expressions are aimed at influencing government functions.
Smith might think that his First Amendment exception only applies to blatant and destructive falsehoods like the ones Trump told after losing the 2020 election. But once a First Amendment exception is created, it will inevitably be exploited by prosecutors with other priorities. Imagine what kind of oppositional speech Trump’s Justice Department would argue puts him in Smith’s unprotected category.
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Smith also said he makes “no apologies” for the gag order he tried to impose on Trump during the prosecution. The decision to criminally charge a leading presidential candidate meant the charge would feature in the 2024 campaign. Still, Smith fought to broadly limit Trump’s ability to criticize him or the prosecutor in general, claiming such statements would disrupt the legal process.
Bravo.
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This is exactly the argument that some of us have been making for years, while being relentlessly pursued by the media.
This is not intended as a criticism of the Post. At least the Post is now making a serious effort to restore the objectivity and accuracy of its reporting and editorials. As for Smith, his testimony confirms the worst assessments of his views on free speech. The only thing more chilling than his lack of knowledge of constitutional doctrine is his disregard for constitutional values.
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