Before Monday’s additional state indictment in Georgia, former President Trump stood accused in federal court of criminal conspiracy to subvert the 2020 presidential election results.

Conspiracy charges, by their very nature, include communication. But on the second page of the federal indictment, in the third enumerated paragraph, the prosecution attempts to make clear that Trump is not being prosecuted for his repeated lies about a stolen election. He is being prosecuted for the efforts he made and the actions he took to operationalize his desire to overturn the election.

Conspiracy is the communication between two or more people that indicates the intention to commit a crime. The indictment is grounded in the long-standing constitutional principle that simply because speech or communication is part of a transaction does not automatically imbue the transaction with constitutional protection. The First Amendment does not and was never intended to protect criminal activity or all behaviors intended to communicate.

Indeed, the indictment is nothing short of surgical. It focuses on language to procure criminal conduct. The indictment describes behavior that evidences an agreement to defraud the U.S. by obstructing the collecting, the counting, and the certification…Read More

Lynn Greenky is a Professor Emeritus at Syracuse University, where she taught a beloved undergraduate course about the First Amendment for 10 years. She continues to write and speak about the First Amendment and is the author of When Freedom Speaks.