There’s no First Amendment right to defraud the United States government

Trump with a US army officer in the background.

Donald Trump’s allies are making it clear they intend to mount a First Amendment defense to the former president’s most recent indictment by the Special Counsel. His counsel insists Trump “has an almost absolute protection” for political speech. But the key word is “almost.”  

While the Supreme Court has historically recognized that the Constitution contains broad protections for political speech, it has at the same time recognized exceptions to that rule for certain categories of speech. One of those historical First Amendment exceptions is for acts of fraud. And the Special Counsel has charged Trump with fraud. That means the First Amendment’s almost absolute protections do not extend to the conduct alleged in the indictment. 

Specifically, the Special Counsel has charged Trump with, among other things, conspiring to defraud the government. The indictment alleges that Trump worked with his co-conspirators to generate fake government documents – namely, certificates falsely stating that certain states’ electoral voters had been cast for Donald Trump rather than Joe Biden. The Special Counsel then alleges that Trump worked with his co-conspirators to submit those fake documents to the National Archives and the United States Congress in the hopes that he would be awarded the presidency. 

In other words, the Special Counsel alleges a classic fraud on the government – the submission of false documents to try to interfere with a government process. And in this case, Trump sought to interfere with a government process for a big personal gain: the most powerful office in the world.

The Supreme Court has been unequivocal for decades that there’s no First Amendment right to commit fraud. In Illinois v. Telemarketing Associates (2003), it stated that the “First Amendment does not shield fraud.” In United States v. Stevens (2010), it observed “the prevention and punishment of” fraud has “never been thought to raise any Constitutional problem.” And just two months ago in United States v. Hansen Trump-appointed Justice Amy Coney Barrett noted that “fraudulent representations through speech for personal gain” are “not protected by the First Amendment.”

Other defenders of the former president are suggesting that Trump’s speech was also protected under the First Amendment right to “petition the government for redress of grievances.” But the Supreme Court has not made any allowances for acts of fraud committed in the name of a petition for redress of grievance, either. 

Look to McDonald v. Smith. The Supreme Court recognized that the First Amendment’s Petition Clause “was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble,” and therefore, there is “no sound basis for granting greater constitutional protection to statements made in a petition . . . than other First Amendment expressions.” As a result, the Supreme Court’s recognition that fraud falls outside the protections of the First Amendment’s guarantee of free speech is equally fatal to any claim that there’s a right to submit fraudulent petitions to the federal government.

The concept that acts of fraud fall outside of the First Amendment has been affirmed in multiple Supreme Court decisions joined by Republican-appointed justices that have stood for decades. While there are many difficult constitutional questions about the First Amendment, the question of whether there’s a First Amendment right to defraud the United States is very simple. There’s not. 

About the Author

Cameron Kistler

Counsel, Free & Fair Elections

Before joining Protect Democracy, Cameron was an associate at Gibson, Dunn & Crutcher and served as a clerk on the Fifth Circuit Court of Appeals.

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