Trump's legal defense focuses on free speech — will that strategy hold up in court?

AILSA CHANG, HOST:

One of Trump's defense lawyers, John Lauro, was on this program yesterday previewing a defense for his client that is centered on the First Amendment.

JOHN LAURO: President Trump was exercising his right to talk about the issues and advocate politically for his belief that the election was stolen and was improperly run.

CHANG: But in a case this complex, how does that free speech argument hold up? Well, someone who is well versed in First Amendment law is Ciara Torres-Spelliscy, professor at Stetson law school, who's going to walk us through just how far this argument can actually go. Welcome.

CIARA TORRES-SPELLISCY: Thank you for having me.

CHANG: OK. So just to pick up with Trump's lawyer there, John Lauro, he's been arguing that this third indictment against the former president is an attack on free speech. And he told Sacha Pfeiffer yesterday this.

LAURO: This is the first time in the history of the United States where a sitting administration is criminalizing speech against a prior administration.

CHANG: OK. Is that a fair characterization on its face? Does this indictment essentially allege that Trump's words alone constitute a crime?

TORRES-SPELLISCY: No. Trump is being prosecuted for his deeds, not his words. And the special counsel even says in the new indictment that the defendant had the right to say what he wanted to say about the election. What he didn't have a right to do is try to overthrow the results of that election.

CHANG: OK. So let me just be more specific. To what extent does the First Amendment allow people to state falsehoods?

TORRES-SPELLISCY: So the Supreme Court has been very lenient with liars. And the case that comes to mind is one called Alvarez. The Supreme Court said that Mr. Alvarez was able to lie about having a military record that he simply did not have. He had a First Amendment right to such lying.

CHANG: What about when a defendant is knowingly committing fraud?

TORRES-SPELLISCY: There is a more recent case called Hansen that was just handed down by the Supreme Court in this year. The court was really clear that the First Amendment doesn't shield fraud. And in the Hansen case, it had to do with defrauding immigrants. Hansen lied to them. He earned millions of dollars lying to them. And when he was prosecuted, he argued, no, no, no, it's the First Amendment. I can say what I want to these immigrants. And the Supreme Court shut that down and said no. When you are defrauding another person, when you're making money off of such lies, you don't get to use the First Amendment as a shield.

CHANG: OK. So then how important is it for the prosecution to prove that Trump knew he actually lost the election, yet proceeded to lie about it and get others to cooperate or conspire with him to try to overturn the election results?

TORRES-SPELLISCY: It is more damning if Trump is doing this with the knowledge that he lost the election. But when he decides to pressure the secretary of state of Georgia, for example, to do something illegal on his behalf, that is the intent that matters. He doesn't have the authority under our U.S. Constitution to tell a state official to do anything. There is no power from the president of the United States that flows to a state official like the Secretary of State of Georgia where he can ask that person to manufacture votes.

CHANG: Right. You don't have a First Amendment right to encourage or solicit others to engage in unlawful behavior.

TORRES-SPELLISCY: Yes. And President Trump simply did not have the legal authority to do what he is accused of doing, and he thus violated federal criminal law.

CHANG: Stetson law professor Ciara Torres-Spelliscy. Thank you so much for speaking with us about our free speech rights.

TORRES-SPELLISCY: Thank you for having me. Transcript provided by NPR, Copyright NPR.