Washington Post Acknowledges Trump’s January 6 Speech Was Protected by First Amendment, Contradicting Special Counsel Jack Smith
WASHINGTON, D.C. — The ongoing debate over the constitutional protections afforded to former President Donald Trump’s January 6, 2021, speech took a significant turn this week as the Washington Post conceded that the remarks were protected under the First Amendment. This acknowledgment directly challenges the position taken by Special Counsel Jack Smith, who testified before Congress that Trump’s speech was not shielded by free speech rights.
For years, legal scholars and free speech advocates have argued that Trump’s rally speech, which preceded the Capitol riot, fell within the realm of constitutionally protected political expression. Jonathan Turley, a law professor and commentator, has been among those asserting that prosecution based on the speech would conflict with established Supreme Court precedent, particularly the landmark case Brandenburg v. Ohio. Turley noted that Smith’s approach to the case “would have blown a hole in the First Amendment,” underscoring the gravity of the constitutional issues at stake.
During his December 2025 deposition before the House Judiciary Committee, Smith was questioned by Chairman Jim Jordan (R-Ohio) about whether Trump’s speech was entitled to First Amendment protections. Smith responded unequivocally, stating, “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.”
Legal experts quickly pointed out that Smith’s assertion conflicts with Supreme Court rulings that have consistently protected even knowingly false statements under the First Amendment. In United States v. Alvarez (2012), the Court struck down the Stolen Valor Act, ruling that criminalizing false claims about military honors violated free speech rights. Similarly, in Snyder v. Phelps (2011), the Court protected the Westboro Baptist Church’s hateful protests as constitutionally permissible speech.
Turley emphasized that labeling Trump’s statements as “fraud” does not automatically remove them from First Amendment protection. Trump’s speech, which expressed his belief that the 2020 election was stolen and should not be certified, was political in nature and shared by many citizens. As such, it falls squarely within the protections afforded to political discourse.
The Washington Post’s admission marks a rare moment of alignment with critics of Smith’s prosecutorial strategy, which some have described as a “war on free speech.” The Post acknowledged that Smith’s stance “would have blown a hole in the First Amendment,” highlighting the tension between the special counsel’s approach and constitutional safeguards.
This development comes amid heightened scrutiny of the Department of Justice’s investigations into Trump, with congressional committees continuing oversight. The Special Counsel’s Office has faced criticism for what some view as politically motivated prosecutions that challenge fundamental legal protections.
As the legal battles unfold, the broader implications for free speech and political expression remain at the forefront of public discourse. The debate underscores the delicate balance between preventing unlawful conduct and preserving the constitutional rights that underpin American democracy.
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