This editorial was originally published by the Los Angeles Times.

Does the First Amendment shield Donald Trump from prosecution for conspiracy to obstruct the 2020 election results?

Trump’s lawyer has proclaimed the indictment “an attack on free speech and political advocacy.” He says Trump thought there was voter fraud, and “as a president, he’s entitled to speak on those issues.” And the indictment by special counsel Jack Smith does repeatedly cite Trump’s false public statements about voter fraud. Is Trump right to claim free speech as a defense?

As ACLU lawyers, we take this question seriously. No organization has done more to defend speech rights than the ACLU — sometimes to the dismay of our allies. We’ve defended Trump’s speech rights when he was sued for allegedly prompting a mob to beat up a protester. We criticized Twitter’s and Facebook’s decisions to de-platform Trump, and applauded when Trump was allowed back. We defended white supremacist Jason Kessler’s right to protest the removal of a Confederate memorial in Charlottesville, Va., supported the National Rifle Assn. in its First Amendment challenge to former New York Gov. Andrew Cuomo’s urging financial institutions to cut ties with the organization because of its “pro-gun” speech. And in the 1970s, the ACLU defended the right of a neo-Nazi group to march in Skokie, Ill., home to many Holocaust survivors at the time.

When it comes to free speech claims, we call them as we see them. But here, we don’t think the First Amendment bars Trump’s indictment. We pass no judgment on Trump’s ultimate guilt or innocence. He is entitled to the presumption of innocence, even as we believe that no person is above the law. But Trump’s First Amendment defense doesn’t cut it here.

Trump has been charged with conspiring to overturn the election results and obstruct the peaceful transfer of power. At times, he used words, including lies, to accomplish this. But that doesn’t mean he’s being prosecuted for constitutionally protected speech, any more than a bank robber who says, “hand over the money,” to a teller.

If Trump had spread lies — on Twitter, in public speeches or anywhere else — but otherwise took no action to obstruct the election results, could he have been charged for merely claiming that he won when he knew he lost?

Obviously not. The First Amendment protects even false speech in many circumstances. The indictment itself concedes that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.”

The problem was not Trump’s speech, but his alleged actions: his attempts to get state election officials to invalidate valid results and declare him the winner; to compel the Justice Department to claim that it had uncovered substantial evidence of fraud when it hadn’t; to support efforts to create fake sets of electors to vote him into office in states that he lost; and to urge Vice President Mike Pence to refuse to certify the lawful election results.

Of course, many of these actions involved communication. But the fact that a crime includes speech does not turn the First Amendment into a defense. A conspiracy is an agreement to commit a crime, and almost always takes the form of words. Teaching a would-be suicide bomber how to make a bomb with the intent that he detonate it also involves communication, but that kind of communication can be prosecuted.

We do, however, have concerns about one aspect of the indictment. At several points, it charges that Trump repeated his lies in his speech on Jan. 6, 2021, to a crowd gathered at the White House. To the extent the Justice Department is seeking to hold Trump criminally responsible for the subsequent actions of the crowd that day, the prosecution would have to satisfy the legal standard that the ACLU helped established in Brandenburg vs. Ohio, which says that speech advocating criminal conduct can be punished only if it is intended and likely to produce imminent lawless action.

Reasonable minds can differ on whether Trump’s remarks that day crossed that line. If the prosecutors seek to hold him accountable for the mob’s actions, they would have to satisfy that demanding standard. In the context of political speech, courts should be very hesitant to hold speakers liable for the actions of others.

But these concerns don’t bear on the great majority of the actions for which Trump faces trial. As Justice Hugo Black, a First Amendment absolutist, wrote more than 70 years ago: “It has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language.” The First Amendment provides no license to conspire to overturn an election.

Leading up to November 7, my fiance and I have been busy. I’ve been organizing events and roundtables, speaking to groups, canvassing, and doing outreach to help fellow Virginians understand just how important this election is. My fiance, Quadaire, has been writing editorials and speaking to the people around him, encouraging them to ask their loved ones to vote. He does this challenging work even though he can’t vote, because he’s currently serving his 15th year in a Virginia prison, where he has been since he was 20 years old.

We are both fighting an uphill battle: Many people have lost faith in the system, don’t believe their voice matters, and don’t understand how our state government works. We know that in Black communities in particular, voter suppression has led to a distrust in the system. But as I’ve been telling anyone who will listen, voting is how your voice gets heard in a world where people are only listening to what they want to hear.

This distrust of the system was amplified when Gov. Glenn Youngkin’s administration wrongly purged 3,400 eligible voters from the state’s rolls — just weeks before this high stakes Virginia General Assembly election. These were people with felony convictions whose voting rights were restored, only to have them abruptly taken away because of an error on the part of the state’s Department of Elections. Though some voters’ rights are now being restored, the mess hasn’t exactly strengthened confidence in the system. In fact, there are still people who haven’t been notified, or have gone to the polls early, only to be denied their votes.

But we keep fighting. Much of this work is simply about voter education. If you don’t already actively participate in our government, the system can be intimidating. So I’ve been talking to people, explaining the legislative process, explaining how the state House of Delegates and Senate works, and trying to make it simple. I want people to understand that when the issues they care about come up for a vote, if the right people aren’t in the room representing you, things can go south. And in an election like this one, where nearly every seat in the assembly is up for grabs, we need everyone who’s eligible to cast their ballot.

Voter education work is an extension of the advocacy I’ve been doing for years. Having a loved one in prison led me to co-found Sistas in Prison Reform, and the ACLU of Virginia has been an integral partner in this work the whole time. While some people are concerned about what’s happening to young people and the elderly in prison, there are a lot of people who fall somewhere in the middle — like Quadaire, who is 35 — who also need our attention. People are serving sentences that are far too long, and though they have gotten degrees and certifications, created programs, and grown well beyond the young people they once were, they are largely forgotten.

Our organization has worked the last two years to pass “Second Look” legislation that would allow people to petition the courts for reconsideration after 10-plus years of incarceration. Earlier this year, the ACLU of Virginia helped us organize a lobby day, and it was beautiful. We had a great turnout, and even managed to change the minds of a couple legislators to vote yes on our bill. Though we haven’t passed the bill yet, we’ve gotten some movement, and we’re going to keep pushing until it’s passed. That’s why I’m focused on getting people who believe in second chances into those General Assembly seats.

Even beyond prison reform, there’s so much at stake in this election that I care about. Cost of living is one thing that keeps coming up in community conversations. Rents keep increasing, and people have been feeling the pressure. Another frequent topic is abortion access. We’re the last southern state without an abortion ban and the folks I talk with would like to keep it that way. This is where volunteering with the ACLU has been key, as people don’t always know where to start and how to figure out where candidates stand on those issues. When voters have the information they need, they have the power to truly make a positive difference in many ways.

This government represents us, and while we may need to learn how the legislature works, they need to listen to us — the people who elect them. And sometimes, they do: The senator in my district may not agree with me on everything, but they’ll always take a meeting and listen. That’s why putting the right people in the right seats in your district matters.

I will never hesitate to tell my story as someone with a loved one in prison, across all the communities I’m a part of, especially since he cannot. And that’s something I’m passionate about helping other people do; I want people to understand that they can become advocates, they can testify before lawmakers, and they can make sure their voices are heard, too. Voting is an essential part of that.

Next week, Ohio voters will decide whether to pass Issue 1, a state constitutional amendment protecting decisions about pregnancy including contraception, fertility treatment, miscarriage care, and abortion. Ohioans from every walk of life — and across the political spectrum — have come together to put an end to the state’s extreme abortion ban and enshrine protections for reproductive freedom in their state constitution.

As we approach the election, our friends at the ACLU of Ohio and Ohioans United for Reproductive Rights are working to get Ohioans to vote YES on Issue 1. As part of a broad multi-issue coalition, the work by local religious communities highlights how voting YES is imperative because there is so much on the line.

Here, two Ohio-based advocates discuss their efforts to safeguard reproductive freedom for all Ohioans. These interviews have been edited and condensed for clarity.

“When Roe was kicked back to the states on June 24, 2022, we all felt this sense of impending doom because we knew that our ban would go into place immediately, which it did. The six-week ban did so much damage in the three months it was in place. We saw folks like leaders from Ohio Right to Life supporting forced birth in Ohio.

“We witnessed our friends, allies, and partners at Planned Parenthood and Preterm Cleveland and other abortion clinics and abortion providers being targeted, defunded; being [under] the threat of closing clinics that offer so much more than just abortion care. They offer reproductive health care in its totality. Yet, access to even general reproductive health care was hanging by a thread.

Religious Communities in Ohio Are Fighting to Preserve Reproductive Rights

Religious Communities in Ohio Are Fighting to Preserve Reproductive Rights

On November 7th, Ohio voters will decide whether to pass Issue 1, which would protect their decisions on contraception, fertility treatment, miscarriage care, and abortion.The fact that this amendment is even on the ballot is a huge feat. Ohio...

On November 7th, Ohio voters will decide whether to pass Issue 1, which would protect their decisions on contraception, fertility treatment, miscarriage care, and abortion.The fact that this amendment is even on the ballot is a huge feat. Ohio...

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“Looking back on June 24 and the three months after that, I choose to focus on the fact that hundreds of doctors around our state mobilized and became Ohio Physicians for Reproductive Rights. The ACLU, Planned Parenthood, Ohio Women’s Alliance, Pro Choice Ohio, and many other partners immediately launched into action, immediately built these strong, robust coalitions, and immediately responded to the moment and said: not in our state, not here, not now. This is our Ohio, and therefore, our Ohio needs to look the way that we, the Ohio citizens, need it to look and feel for our safety, for our freedom, and for our families.”

“One of the things that Issue 1 showed was that you can’t count Ohioans out. We’re not idly sitting by. We are also very clear on why [the other] state Issue 1 [which tried to raise the threshold to pass ballot measures] in ‘the special election,’ as we should call it, was a problem. [Legislators] know unequivocally that Ohioans support abortion access, and that is why they did this. But we will not be fooled. We care about truth, and we care about freedom. I look at this very simply: voters are the ones who control our government, but this was an attempt by our government to control voters instead.

“The other part I want to mention is how the faith communities have turned out. Specifically, our Jewish communities have really turned out. They were active in signature collection, postcard writing, stumping, talking about the ballot, door knocking, and phone banking. It’s breaking stereotypes. When you create space for people to show up and for people to own a part of something, they will. It’s what we saw during the signature collection and what we’re seeing now.

“I believe that the movement — the social justice movement, the progressive movement — sometimes tries to other religious people because they haven’t found a way to effectively connect the religious values that these people espouse with the values of humanity that progressive movements and social justice movements seek to center. Yet, when you have conversations with faith-based communities, it is easy to connect because those folks, in particular, are very concerned about their values. So, when you’re able to build a bridge between the value of bodily autonomy and freedom, the value of compassion, the value of ensuring that every person has access to resources, care, family, support, and love. When you can build that bridge from those values that reproductive justice and reproductive freedom encapsulate, to the values of Christianity or the values of Islam or to the values of Judaism or other religions, you can kind of pull people over.”

“I think it’s important when we’re having this discussion that those who oppose access to safe and legal abortions don’t have a monopoly over faith. One of the reasons why I’m so passionate about making sure that people have access to the care — the medical care that they need, including abortion — is because of my faith and because much of Jewish teaching tells us about the value of life and the importance of protecting life. That also includes the lives of those who are pregnant and making the choice to have a baby or not have a baby. And, frankly, I didn’t always identify strongly with my Jewish faith until I started to look more at the teachings.

“One of our rabbis spoke at the Bans Off Our Bodies rally in Cincinnati, and I just remember getting emotional watching her speak, and she came down after she was done speaking. I just gave her this big hug, and I said, ‘I’m just so glad you’re my rabbi.’ It was like this feeling of, really, feeling seen in my faith as well. I’ve had conversations with other members of the Jewish community; the Jewish community is just as diverse as any other religious community.

“So, some of us agree on a lot of things, and some of us don’t agree on some things. I was having a conversation with a woman in the Orthodox community about this issue. And when I started sharing with her that this amendment isn’t just about access to abortion, that it’s also about fertility treatments, that it’s also about miscarriage care, it’s also about contraception, we were able to have more of a discussion. Certainly, fertility care is important in the Orthodox community.

“I’m also a board member of the Jewish Fertility Foundation. And so, making sure that all members, all women in the Jewish community, can have access to the fertility care they need so they can create the family they want when they want it. It is an issue that goes beyond reform, conservative, orthodox Judaism. The Jewish community alone collected over 10,000 signatures when we were in the signature-collecting stage, and we’ve contacted over 200,000 potential voters. Much of the messaging that we give is, “‘Look, I’m a member of the faith community as well, and this is why I care about this issue, and you can be a person of faith and care about this issue.’

“Most people I speak with are very excited about this amendment and a handful of people I’ve spoken with may or may not agree. But I can say, look, I’m a mother, and I’m a person of faith as well, there’s probably a lot more that we agree on than we differ on. The goal isn’t necessarily to change someone’s mind to suddenly say, ‘Oh, okay, I, I think abortion is okay.’ The goal is to say, look, do you want someone else making these decisions for you? Do you want your government to make these decisions for you? Or do you want you, your family, and your loved ones to have the opportunity to make these decisions? I think there’s a lot of smoke and mirrors around this issue. At the core of it, though, is just saying that we all love our children. We all love our families. We just want to do this in our own way and keep the government out of our families.”

Paid for by American Civil Liberties Union, Inc. in coordination with Ohioans United for Reproductive Rights