During today’s hearing, Trump attorney Steve Sadow has repeatedly cited a 2012 Supreme Court case dealing with free speech to bolster his argument that the charges against the former president should be dismissed.
The court, in US v. Alvarez, struck down a law that had made it a crime to falsely claim that military medals were earned. Writing for a majority, then-Justice Anthony Kennedy said that the law violated free speech protections.
“The nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace,” he wrote.
Then-Justice Stephen Breyer wrote in a concurrence that the government could find “less restrictive ways” to “achieve its legitimate objectives.” Conservative Justices Samuel Alito, Clarence Thomas and Antonin Scalia dissented, saying that the law did not go too far.
Alito, writing for the three justices, said that the court’s ruling “breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest.”
Sadow on Thursday invoked both Alito and Breyer.
“Essentially, the state’s position is, ‘because, as alleged what President Trump said, speech-wise, or expressed either through his speech or conduct, which is still freedom of expression, because that’s false in the eyes of the state it’s lost all protection of the First Amendment.’ And the concurring opinion and the dissenting opinion in Alvarez suggests just the opposite. If anything, under the circumstances, it needs more protection, not less protection,” he said.
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