Some clarity on the First Amendment in criminal cases.
Things you say can be used against you as evidence in criminal cases.
But, the govt can’t criminalize your speech itself because the First Amendment protects you specifically from that.
Neither can the govt prosecute you for your beliefs without violating the First Amendment.
So laws that penalize “content” of some kind are almost always unconstitutional, including criminal ones.
If, however, based on your protected beliefs or speech, you take action that somehow violates the law, your beliefs or speech could potentially be used to demonstrate the motive for your conduct or the purpose for your actions. That usually doesn’t violate the First Amendment.
Just because you have a First Amendment protected view doesn’t mean everything you do to act on it is legal.
However sometimes it’s clear the reason the govt is prosecuting a case isn’t really the claimed conduct at issue, but rather the protected belief that the govt disfavors.
That could be a selective prosecution case that might therefore be unconstitutional.
In fraud cases, falsity is an issue so they can sometimes get into issues of belief/speech. In that case the govt may prosecute & the judge will have to instruct the jury carefully on the 1st A.
Sometimes also, the govt’s lawyers’ arguments or their theory of guilt sound an awful lot like they are condemning speech or belief instead of conduct. In that case, the defense must press the judge to warn the jury in instructions about the defendant’s First Amendment rights.
The reason Trump’s case feels like a First Amendment case is twofold. First, because the govt’s theory of criminality is that he was told x by people & therefore he “knew” his statements were false, which seems like it’s criminalizing his beliefs & political speech.
Second, the First Amendment protects petitioning the govt as well as speech. Even if entirely cynical & power seeking, actions that challenge the govt - such as by using legal, political, & speech mechanisms - are protected by the First Amendment. We want it to be that way.
If there is not a substantial amount of leeway for these kinds of actions, there is no true political freedom.
Trumps case has all of these issues & therefore presents a complex First Amendment situation.
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