JONATHAN TURLEY: Even the Washington Post admits Jack Smith was wrong on free speech

Opinion

JONATHAN TURLEY: Even the Washington Post admits Jack Smith was wrong on free speech

Special counsel's testimony contradicts Supreme Court precedent on protected political speech, constitutional experts argue

Jonathan Turley Fox News

Published

January 10, 2026 10:07am EST

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Jack Smith defends investigation during deposition

Fox News correspondent David Spunt has the latest on the deposition of former special counsel Jack Smith regarding his decision to indict President Donald Trump on ‘Special Report.’

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For years, some of us have argued that President Donald Trump's January 6th speech was protected under the First Amendment and that any prosecution would collapse under governing precedent, including Brandenburg v. Ohio. I was regularly attacked as an apologist for my criticism of Special Counsel Jack Smith's "war on free speech." I wrote about his history of ignoring such constitutional protections in his efforts to prosecute targets at any cost. I also wrote how Smith's second indictment (which the Post supported) was a direct assault on the First Amendment. Now, years later, the Washington Post has acknowledged that Trump's speech was protected and that Smith "would have blown a hole in the First Amendment."

In this appearance before Congress, Smith's contempt for the First Amendment was on full display. During his testimony, he was asked by Chairman Jim Jordan (R-Ohio) whether Trump was entitled to First Amendment protections for his speech.

Former Department of Justice Special Counsel Jack Smith on Capitol Hill

Former Department of Justice Special Counsel Jack Smith enters a room in the Rayburn House Office Building to give his deposition before the House Judiciary Committee, part of its oversight into DOJ investigations into President Donald Trump, on Capitol Hill in Washington, Wednesday, Dec. 17, 2025. (J. Scott Applewhite/AP Photo)

Smith replied: "Absolutely not. If they are made to target a lawful government function and they are made with knowing falsity, no, they are not. That was my point about fraud not being protected by the First Amendment."

The comment is entirely and shockingly wrong. Smith shows a complete lack of understanding of the First Amendment and Supreme Court precedent.

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First, the Supreme Court has held that knowingly false statements are protected under the First Amendment.

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The Supreme Court struck down the Stolen Valor Act. In United States v. Alvarez, the Court held 6-3 that it is unconstitutional to criminalize lies — in that case involving "stolen valor" claims. Likewise, spewing hate-filled lies is protected. In Snyder v. Phelps, also in 2011, the Court said the hateful protests of Westboro Baptist Church were protected.

Jack Smith questions reliability of Jan 6 key witness's testimony

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Second, calling such claims "fraud" does not convert protected speech into criminal speech. Trump was speaking at a rally about his belief that the election was stolen and should not be certified. Many citizens supported that view. It was clearly protected political speech.

As I discuss in The Indispensable Right: Free Speech in an Age of Rage," Smith's prosecution was on a collision course with controlling Supreme Court precedent.

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In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of "imminent lawless action and is likely to incite or produce such action." Smith would have lost, but he has a history of ignoring such constitutional protections. That was the case when his conviction of former Virginia Governor Robert F. McDonnell was unanimously reversed as overextending another law.

Trump was never charged with inciting the riot despite pledges of Democratic D.C. Attorney General Karl Racine to investigate Trump for that crime.

The reason is simple. It was not criminal incitement and Trump’s speech was protected under the First Amendment.

Nevertheless, the Post and other papers ran the same experts, who assured the public that no such protections existed. For example, Harvard Law Professor Laurence Tribe has made a litany of such claims, including his declaration that President Donald Trump could be charged ("without any doubt, beyond a reasonable doubt, beyond any doubt") with the attempted murder of former Vice President Michael Pence.

The Post has now recognized that Trump does indeed enjoy First Amendment protections and that Smith was a constitutional menace. The change reflects a commendable shift in the Post's editorial staff under owner Jeff Bezos and his new team at the paper.

The Post wrote:

Political speech — including speech about elections, no matter how odious — is strongly protected by the First Amendment. It’s not unusual for politicians to take factual liberties. The main check on such misdirection is public scrutiny, not criminal prosecution.

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Of course, fraud is a crime. But that almost always involves dissembling for money, not political advantage. Smith’s attempt to distinguish speech that targets ‘a lawful government function’ doesn’t work. Most political speech is aimed at influencing government functions.

Smith might think his First Amendment exception applies only to brazen and destructive falsehoods like the ones Trump told after losing the 2020 election. But once an exception is created to the First Amendment, it will inevitably be exploited by prosecutors with different priorities. Imagine what kind of oppositional speech the Trump Justice Department would claim belongs in Smith’s unprotected category.

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Smith also said he makes ‘no apologies’ for the gag order he tried to impose on Trump during the prosecution. The decision to criminally charge a leading presidential candidate meant the charges would feature in the 2024 campaign. Yet Smith fought to broadly limit Trump’s ability to criticize him or the prosecution in general, claiming such statements would interfere with the legal process.

Bravo.

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This is precisely the argument that some of us have been making for years, while being relentlessly pursued by the media.

This is not meant as a criticism of the Post. At least the Post is now making a serious attempt to restore objectivity and accuracy to its coverage and editorials. As for Smith, his testimony confirms the worst assessments of his view of free speech. The only thing more chilling than his lack of knowledge of constitutional doctrine is his contempt for constitutional values.

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Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University.

He is the author of the forthcoming "Rage and the Republic: The Unfinished Story of the American Revolution" on the 250th anniversary of the American Revolution.

He is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal history to the Supreme Court. He has written over three dozen academic articles that have appeared in a variety of leading law journals.

Professor Turley also served as counsel in some of the most notable cases in the last two decades including the representation of whistleblowers, military personnel, former cabinet members, judges, members of Congress, and a wide range of other clients.

Professor Turley testified more than 50 times before the House and Senate on constitutional and statutory issues, including the Senate confirmation hearings of cabinet members and jurists such as Justice Neil Gorsuch. He also appeared as an expert witness in both the impeachment hearings of President Bill Clinton and Donald Trump.

Professor Turley received his B.A. at the University of Chicago and his J.D. at Northwestern. In 2008, he was given an honorary Doctorate of Law from John Marshall Law School for his contributions to civil liberties and the public interest.

JONATHAN TURLEY: Even the Washington Post admits Jack Smith was wrong on free speech