Do Trump’s words cross line from protected speech to criminal threat?

By Chris Honoré

To write with clarity about the issue of free speech, as I attempted to do in the recent “Conduct Without Conscience,” proved far more difficult than I first imagined. I now realize that protected speech, or not, isn’t black or white (shouting fire in a crowded theater), but is far more nuanced, and I’m beginning to understand that the First Amendment actually involves a spectrum of gray, and that grayness is often left up to the courts to sort out.

What brought this to mind was Donald Trump’s social media post, “If you go after me, I’m coming after you.” Is this protected political speech? Or is it a veiled threat meant for those who are even remotely involved in a political or governmental pushback? And if truth be told, wasn’t it a warning directed at those now named as unindicted or indicted co-conspirators and charged with being complicit in crafting a scheme to overturn the 2020 presidential election? And doesn’t that sentence suggest that they should not consider flipping, regardless of the possibility of going to jail?

Trump wrote those stark words on his social media platform, Truth Social, shortly after being admonished by federal Magistrate Judge Moxila Upadhyaya, who was the first to receive special prosecutor Jack Smith’s indictment of Trump in the Jan. 6 insurrection and attempt to overturn the 2020 presidential election.

With the former president standing before her, Upadhyaya said, “It is a crime to try and influence a juror or to threaten or attempt to bribe a witness or any other person who may have information about your case … or to otherwise obstruct the administration of justice.”

I judge the key word in her assertion is “crime.” Was Trump’s post indeed benign (as his attorneys insisted), or was it code (aka a dog whistle), also meant to incite his supporters and therefore crossed a line regarding protected speech?   

Upon reading this stark message, special prosecutor Smith alerted U.S. District Judge Tanya Chutkan, who will oversee Trump’s federal election interference trial, to language he regarded as combative. He and his prosecutors argued that the defendant has “previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him.”

Words matter. And they have consequences, both intended and unintended. We know there are countless unhinged people among us who are listening, and their menacing threats have become ubiquitous.

Perhaps Chutkan might agree, and when Trump and/or his attorneys appear before her for arraignment on Aug. 28, to discuss a trial timeline, she might issue a gag order on Trump, signaling that she will not tolerate his disparaging, vitriolic speech, however ambiguous it might be. No matter that he will vociferously opine that such an order, which is in compliance with Washington court rules, is a violation of his First Amendment rights.

I also find myself wondering, if Trump were not a former president and once again a candidate for the presidency who is inexplicably embraced by a servile political party, with millions of followers (his MAGA base), would he have not already been sanctioned?

Of course, in a perfect world there is always jail time until the trial begins, which Trump hopes will not take place until 2026.

As an aside, and referring back to the word “inexplicable,” how are we to understand that with each indictment (four to date) Trump’s front-runner status only increases? What?

Email Ashland resident Chris Honoré at honore307@gmail.com.