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  • Writer's pictureJordyn Ehlinger

The line of criminalization: The First Amendment and false statements

In the past few months, four Donald Trump co-defendants pleaded guilty to illegally conspiring to overturn the 2020 election based on false statements they made about the election, highlighting the issue between free speech and criminal speech. In a day and age where communication is so expansive and prominent figures can disseminate their opinions so broadly, the line between the First Amendment right to free speech and criminal behavior has blurred. When does free speech become criminal? The line of criminalization is drawn when words start to hold more meaning than an opinion or uninformed statement and start carrying the weight of actions that fall under criminal activity. 

Most recently, Trump campaign legal adviser Jenna Ellis was indicted on Counts One and Two, which were violations of the Georgia RICO Act and Solicitation of Violation of Oath by Public Officer. She, in turn, pleaded guilty only to one felony count of aiding and abetting false statements and writings. The prosecutor indicted Ellis for aiding in drafting Jan. 6 plans to disrupt and delay congressional certification of the election results. She was  also accused of aiding and abetting Rudy Giuliani and Ray Smith, who made false statements about election fraud to several lawmakers and state legislators to pressure them into backing electors who support Trump. 

Ellis is the fourth Trump co-defendant to admit guilt in the conspiracy to overturn the 2020 election in Georgia, followingSidney Powell, Kenneth Chesebro and Scott Hall. They all faced similar accusations and related counts of making false statements, conspiring to overturn the 2020 Georgia election, and impersonating an officer, among other charges. 

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” Historically, it has acted as a safeguard against the suppression of forms of expression. The right to free speech protects many things, but it does not, for example, protect false statements and writings. 

All Trump co-defendants were indicted on a count of violating Georgia’s RICO Act. RICO is an anti racketeering act and requires at least two crimes committed in the advancement of an organization’s goals. While the prosecutor indicted Ellis on a violation of the RICO Act, Ellis pleaded guilty only to aiding and abetting in violation of GA Code Title 16. Crimes and Offenses § 16-10-20. The Georgia law provides a basis for establishing criminal liability for making false statements and concealing material facts.  

In making false election statements with the purpose of ultimately changing the election results, the Trump co-defendants crossed over the line and into criminal behavior. The Georgia law is a step in the right direction in differentiating between free speech and harmful statements. It criminalizes knowingly and willfully falsifying or covering up a material fact and making false statements, distinguishing the behavior from typical free speech. 

While the First Amendment provides for the freedom of speech, there can be legal ramifications for making false statements. Because individual and group reach is continuously growing, it is increasingly important to advocate for fundamental rights while also realizing the effect that words have when they are not just words. Prominent individuals and groups have a platform that enhances their ability to engage in these behaviors on a larger and more consequential scale, making it important to hold them accountable. This can be done by advocating for laws similar to Georgia’s. Criminal speech must be distinguished from free speech protected under the First Amendment. 


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