No, Donald Trump, fraud is not protected by the First Amendment

On Thursday, former President Donald Trump’s lawyers appeared in court in Fulton County, Ga., to argue that election fraud is protected by the First Amendment.

Trump’s counsel described Trump’s efforts to overturn his electoral defeat in Georgia as “core political speech” entitled to heightened legal protection. In Trump-speak, when he called Georgia Secretary of State Brad Raffensperger and pressured him to “find” 11,780 votes to change the election’s outcome, Trump was merely engaging in protected political expression.

Trump’s counsel argued before Fulton County Superior Judge Scott McAfee that “Criminalizing President Trump’s speech and advocacy disputing the outcome of the election, while speech endorsing (Biden’s win) is viewed as unimpeachable, is blatant viewpoint discrimination,” prohibited by the First Amendment.

ALSO READ: A criminologist explains why Judge Cannon must step away from Trump trial immediately

While it is legally accurate to say that political viewpoint discrimination is a prohibited form of content discrimination, words of advocacy intended and likely to incite imminent lawless action, are not — and have never been — protected under the First Amendment.

As to fraud in particular, the Supreme Court has recently held that:

• The “First Amendment does not shield fraud”
• Fraudulent representations through speech for personal gain are “not protected by the First Amendment”
• The “prevention and punishment of” fraud has “never been thought to raise any Constitutional problem”

It's the same rationale under which hiring a hitman, inciting a riot, inducing fraud, impersonating a government official or promoting a Ponzi scheme — although typically done with mere words — are not protected under the First Amendment. Trump would have the Georgia court protect his words by divorcing them from their meaning.

Enter the Bible grift

Coming from a presidential candidate shamelessly hawking Bibles for $59.99 (plus shipping and handling), Trump’s manipulation of the First Amendment should come as no surprise.

The First Amendment has carefully guarded Americans’ core freedoms of religion and speech since it was adopted in 1791.

After the Constitution was ratified three years earlier, the First Congress of the United States proposed 12 amendments to it. First among them was the preeminent guarantee that the government would stay out of religion — forever — by neither establishing nor prohibiting its practice.

ALSO READ: 11 ways Trump doesn’t become president

Cognizant of centuries of religious persecution, serious men of the First Congress did not stutter, demur or obfuscate. Their opening salvo in the First Amendment, now known as the Establishment Clause, declares that, “Congress shall make no law respectingan establishment of religion.”

“Congress” in this context includes the federal government, since allowing the U.S. president or judicial branch to promote religion while prohibiting Congress from doing so would render the separation of church and state meaningless.

Trump is not so constrained.

To support his Bible sales, Trump’s three-minute promotional video says he wants to “Make America Pray Again” with a Bible “inspired by Lee Greenwood’s patriotic anthem.”

ALSO READ: Inside the neo-Nazi hate network grooming children for a race war

To solidify the symbolic merger of church and state, Trump’s Bible includes copies of the U.S. Constitution, Declaration of Independence and Pledge of Allegiance. His Truth Social promotion declares, “Religion and Christianity are the biggest things missing from this country… Order yours today! Please allow 4-6 weeks for delivery.”

Who knew a country music singer alive today inspired the Bible? Or that Bibles could be monetized to pay royalties to Trump like his steaks, Trump University or gold lamé sneakers? If Christian Nationalism weren’t so dangerous, the swindle would be funny.

Weaponizing ignorance

Trump’s adversarial relationship with the U.S. Constitution demonstrates how he weaponizes the ignorance of his uneducated base. He gaslights them into believing up is down.

In late 2022, for example, Trump claimed that the 2020 election “fraud” — Biden won, of course — “allows for the termination of all rules, regulations, and articles, even those found in the Constitution.”

Trump either seeks to terminate the Constitution, or invoke it, depending on his needs. Ignorant of early American history, as well as world history where millions of people have perished in the name of religion, Trump and his MAGA base want to declare the United States a “Christian nation.” Trump and his un-Christ-like CINOs (Christians in Name Only) blindly seek power, and have calculated — perhaps accurately — that falsely claiming religious persecution is the surest way to get it.

Moving to dismiss Georgia’s criminal election fraud indictment as unconstitutional, his counsel argued that the criminal indictment “directly targets core protected political speech and activity,” meaning Trump’s words were just words and the conduct he tried to orchestrate was immaterial.

Extending the theory, Trump’s words didn’t march into the U.S. Capitol with zip ties to assault elected officials on January 6, 2021 — just like guns don’t shoot people, people shoot people.

Trump continues to argue he is above the law

Trump’s claim that he is free to engage in election fraud — a crime — comports with his belief that presidents can commit crimes with impunity because of presidential immunity.

Trump’s immunity argument, still outrageously pending before the Supreme Court, asserts, “A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents.”

It is apparently lost on MAGA and Trump’s legal team that, for nearly 250 years, no president before Trump ever disseminated national security documents, tried to extort the leader of a foreign government, or incited a violent insurrection on hallowed Capitol grounds. Trump is generously taking one for the team by looking out for presidents of the future.

Applying Trump’s putative immunity in the Georgia case — under the First Amendment or otherwise — a sitting president would have the right to strongarm state election officials, advance a fraudulent slate of electors, impersonate elected officials, “find” 11,780 non-existent votes, and change the outcome of an election.

After all, to Trump’s legal team, them’s just words.

Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Follow her on Substack.