JONATHAN TURLEY: Even the Washington Post admits Jack Smith was wrong on free speech

For years, immoderate of america person argued that President Donald Trump's January 6th code was protected nether the First Amendment and that immoderate prosecution would illness nether governing precedent, including Brandenburg v. Ohio.  I was regularly attacked arsenic an apologist for my disapproval of Special Counsel Jack Smith's "war connected escaped speech." I wrote astir his past of ignoring specified law protections successful his efforts to prosecute targets astatine immoderate cost. I besides wrote however Smith's 2nd indictment (which the Post supported) was a nonstop battle connected the First Amendment. Now, years later, the Washington Post has acknowledged that Trump's code was protected and that Smith "would person blown a spread successful the First Amendment."

In this quality earlier Congress, Smith's contempt for the First Amendment was connected afloat display. During his testimony, helium was asked by Chairman Jim Jordan (R-Ohio) whether Trump was entitled to First Amendment protections for his speech.

Former Department of Justice Special Counsel Jack Smith enters a country successful the Rayburn House Office Building to springiness his deposition earlier the House Judiciary Committee, portion of its oversight into DOJ investigations into President Donald Trump, connected Capitol Hill successful Washington, Wednesday, Dec. 17, 2025. (J. Scott Applewhite/AP Photo)

Smith replied: "Absolutely not. If they are made to people a lawful authorities relation and they are made with knowing falsity, no, they are not. That was my constituent astir fraud not being protected by the First Amendment."

The remark is wholly and shockingly wrong. Smith shows a implicit deficiency of knowing of the First Amendment and Supreme Court precedent.

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First, the Supreme Court has held that knowingly mendacious statements are protected nether the First Amendment.

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The Supreme Court struck down the Stolen Valor Act. In United States v. Alvarez, the Court held 6-3 that it is unconstitutional to criminalize lies — successful that lawsuit involving "stolen valor" claims. Likewise, spewing hate-filled lies is protected. In Snyder v. Phelps, besides successful 2011, the Court said the hateful protests of Westboro Baptist Church were protected.

Second, calling specified claims "fraud" does not person protected code into transgression speech. Trump was speaking astatine a rally astir his content that the predetermination was stolen and should not beryllium certified. Many citizens supported that view. It was intelligibly protected governmental speech.

As I sermon successful The Indispensable Right: Free Speech successful an Age of Rage," Smith's prosecution was connected a collision people with controlling Supreme Court precedent.

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In Brandenburg v. Ohio, the Supreme Court ruled successful 1969 that adjacent calling for unit is protected nether the First Amendment unless determination is simply a menace of "imminent lawless action and is apt to incite oregon nutrient specified action." Smith would person lost, but helium has a past of ignoring specified law protections. That was the lawsuit erstwhile his condemnation of erstwhile Virginia Governor Robert F. McDonnell was unanimously reversed arsenic overextending different law.

Trump was ne'er charged with inciting the riot despite pledges of Democratic D.C. Attorney General Karl Racine to analyse Trump for that crime.

The crushed is simple. It was not transgression incitement and Trump’s code was protected nether the First Amendment.

Nevertheless, the Post and different papers ran the aforesaid experts, who assured the nationalist that nary specified protections existed. For example, Harvard Law Professor Laurence Tribe has made a litany of specified claims, including his declaration that President Donald Trump could beryllium charged ("without immoderate doubt, beyond a tenable doubt, beyond immoderate doubt")  with the attempted execution of erstwhile Vice President Michael Pence.

The Post has present recognized that Trump does so bask First Amendment protections and that Smith was a law menace. The alteration reflects a commendable displacement successful the Post's editorial unit nether proprietor Jeff Bezos and his caller squad astatine the paper.

The Post wrote:

Political code — including code astir elections, nary substance however odious — is powerfully protected by the First Amendment. It’s not antithetic for politicians to instrumentality factual liberties. The main cheque connected specified misdirection is nationalist scrutiny, not transgression prosecution.

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Of course, fraud is simply a crime. But that astir ever involves dissembling for money, not governmental advantage. Smith’s effort to separate code that targets ‘a lawful authorities function’ doesn’t work. Most governmental code is aimed astatine influencing authorities functions.

Smith mightiness deliberation his First Amendment objection applies lone to brazen and destructive falsehoods similar the ones Trump told aft losing the 2020 election. But erstwhile an objection is created to the First Amendment, it volition inevitably beryllium exploited by prosecutors with antithetic priorities. Imagine what benignant of oppositional code the Trump Justice Department would assertion belongs successful Smith’s unprotected category.

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Smith besides said helium makes ‘no apologies’ for the gag bid helium tried to enforce connected Trump during the prosecution. The determination to criminally complaint a starring statesmanlike campaigner meant the charges would diagnostic successful the 2024 campaign. Yet Smith fought to broadly bounds Trump’s quality to knock him oregon the prosecution successful general, claiming specified statements would interfere with the ineligible process.

Bravo.

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This is precisely the statement that immoderate of america person been making for years, portion being relentlessly pursued by the media.

This is not meant arsenic a disapproval of the Post. At slightest the Post is present making a superior effort to reconstruct objectivity and accuracy to its sum and editorials. As for Smith, his grounds confirms the worst assessments of his presumption of escaped speech. The lone happening much chilling than his deficiency of cognition of law doctrine is his contempt for law values.

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