The Shapiro Lecture featuring Charles L. "Chip" Babcock: The First Amendment Implications of the Trump J6 Indictment

The Trump January 6th (J6) indictment carefully attempts to avoid First Amendment problems and even includes an homage to free speech. Even so, the criminal statutes the government relies upon may have constitutional infirmities as a dissenting judge of the United States Court of Appeals for the District of Columbia Circuit suggested in United States v. Fischer, a J6 prosecution of three individuals who were present at the event and allegedly assaulted law enforcement officers. To be clear, the First Amendment does not provide a defense to criminal conduct but “sensitive tools” must be employed to place the line between protected and unprotected activity. And statutes that exceed their intended purpose and overly inhibit the exercise of free speech may be unconstitutional either on their face or as applied. The lecture will also consider the First Amendment implications of any gag order (proposed or imposed) in the case.