Speech and Action

 

Speech and Action

 

Much is being made of the distinction between speech and action in the discussions of the indictment of Donald Trump for criminal acts committed in the course of his efforts to overturn the results of the 2020 presidential election. But I am not hearing any in depth discussion of what distinction between speech and action actually is. When we really look at that distinction is we find that it is actually a false one. I have long believed that in the final analysis human beings can only do two things. We can speak, and we can move things from one place to another. And actually, speech itself is moving something, air, from one place, the lungs, to another, out of the lungs. Everything Trump is accused of in the election fraud case is speech, either oral or written, that distinction making no difference here. I’ve heard news anchors say that organizing a fraudulent scheme of fake electors, one of the things Trump is accused of (and that he actually did) is action not speech. No it isn’t. His organizing the fraudulent scheme consisted of his saying things to people. Asking people to do things. Telling people to do things. Trump is not accused of hitting anyone or stealing any physical objects. Those things are actions not speech, but everything Trump is accused of is speech. He is accused of having spoken and written words. Everything he’s accused of is speech.

There is a significant distinction in this case, but it isn’t between speech and action. It is between legally protected speech and legally unprotected speech. The First Amendment to the Constitution of the United States establishes a right to freedom of speech. That right is one of this country’s core values. Freedom of speech is essential for political debate, academic research, literature, and other activities indispensable for the functioning of a decent, sophisticated culture. But it is well established in American law that the freedom of speech the First Amendment guarantees is not unlimited. Some speech is not constitutionally protected. The cliched example of unprotected speech is “You can’t yell fire in a crowded theater,” assuming I guess that there is no fire. Why can’t you? Because these words are likely to create a panic in which people are likely to be hurt. Defamation law is another example of unprotected speech. No one can utter defamatory speech against another person without facing at least the possibility of a civil award of damages. First Amendment law is complex, but it represents the attempt by American courts to draw the line between protected and unprotected speech.

The issue in the election fraud case against Trump isn’t distinguishing between speech and action. It is distinguishing between constitutionally protected speech and constitutionally unprotected speech. Trump’s speech that is relevant in this case is constitutionally unprotected because he asked or told others to commit unlawful acts and worked with others to get others to commit unlawful acts. His unprotected speech relates to three primary issues. One of them is efforts to induce Republicans in six different states to submit fraudulent, false slates of electors to the federal government. He led a conspiracy to defraud the federal government. The other is his efforts to get Vice President Pence to seize power the Constitution does not give him to reject the electors a state has certified as the state’s actual electors outright or to send the issue of what electors are legitimate back to state legislatures for investigation of alleged but false claims of outcome determining electoral fraud. A third example of Trump’s constitutionally unprotected speech is what he said to the Secretary of State of Georgia in an attempt to get that public official to reverse the outcome of the presidential election in that state. What Trump did in all of these cases was speak either orally or in writing. We can call what he did actions if we want, but what he did still comes down to—he said something.

So let’s not base our consideration of the indictment of Donald Trump for attempting to overturn a results of a lawful election by unlawful means on the distinction between speech and acts. We are dealing here with speech that is not constitutionally protected. Trump’s acolytes are screaming and will  continue to scream “First Amendment right!” as an alleged defense to the charges against their hero. That defense raises the issue of what speech is constitutionally protected and what speech is not. That’s the issue, not difference between speech and acts.