Enjoy free access to this TPM member newsletter. JOIN TPM
One must-read delivered daily to your inbox

Vol 2. No. 50: Nope. It’s Really Not a 1st Amendment Case

 Member Newsletter
August 3, 2023 4:35 p.m.

All eyes today were on the now-familiar spectacle of watching the twice impeached former President arraigned on felony charges in a court somewhere in the United States. New York, Miami and D.C. have been tour stops so far. The tour will probably conclude in Atlanta later this month. But today I want to do a reality check about the charges brought against Donald Trump for his failed 2020-21 coup plot. It’s really not a 1st amendment case at all, despite lots of claims from the President’s supporters and more than a few ‘analysis’ pieces from the major papers. He’s not charged over things he said but rather things he did. You can whine all you want about how you were cheated. You just can’t try to change the result. That’s our topic in today’s Backchannel.

Taking the Bait

Originally Published: August 3, 2023 10:59 a.m.

I’m glad David hit this point in The Morning Memo. In addition to the Times article he references, the Times also published a piece by Tom Edsall (the writer who perhaps most consistently drives me crazy) casting the Trump indictment as part of a larger story of “the left’s” turn away from free speech. That premise about free speech is a complicated matter in its own right. But, as David notes, it has nothing to do with this case. The case has nothing to do with platforms or hate speech or misinformation or anything else. This is a case of a group of individuals taking coordinated and affirmative non-speech steps (i.e., a conspiracy) to fraudulently change the results of a lawful election.

Ironically, the Republican trolling on this front does a pretty good job, in spite of itself, illustrating the point. Across the right-o-sphere yesterday, virtually everyone was saying, “Remember when Al Gore challenged the results of the 2000 election? Remember when Stacey Abrams said her loss to Brian Kemp was illegitimate? Only Trump is indicted though!!!”

They even said the same thing about Hillary Clinton in 2016, though this was an odd one since I think we all remember a plainly devastated Hillary Clinton, the morning after the 2016 election, conceding defeat and congratulating the new President-elect.

But the Gore and Abrams examples illustrate the point. Let’s set aside the fact that neither quite said what Republicans are claiming. Even so, the examples illustrate clearly precisely why this isn’t a First Amendment case. You can claim you’re the real winner. You can file lawsuits. You can say whatever you want. But neither of these defeated candidates tried to substitute phony vote tallies, or stop vote counting, or do any number of other illegal things to change the results of the election.

Again, Republicans make all sorts of silly, bad faith arguments. I only note them here because rather than prove any commonality and double standard, they show the glaring difference. Republicans’ examples of Democrats who took issue with elections are examples in which the candidates didn’t take any steps to alter the votes, block the legal counting of votes, or do anything else to change the lawful result. This basic difference could scarcely be more clear.

Did you enjoy this article?

Join TPM and get The Backchannel member newsletter along with unlimited access to all TPM articles and member features.

I'm already subscribed

Not yet a TPM Member?

I'm already subscribed

One must-read from Josh Marshall delivered weekly to your inbox

Your subscription could not be saved. Please try again.
Your subscription has been successful.

One must-read from Josh Marshall delivered weekly to your inbox

Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: