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.

In the span of just a few years, transgender people have had their rights and lives radically reshaped by a litany of political attacks against our freedom, our dignity, and the health care many of us need to live. As part of a coordinated national effort to erode legal protections for trans people and push us out of public life, a wave of bills targeting gender-affirming health care for transgender people have effectively banned it for nearly one-third of transgender youth in the United States. These laws uproot entire families and communities, alarm doctors and medical experts, and endanger the very young people they laws claim to protect.

While the ACLU and our nationwide affiliates succeeded in the trial courts when the judges actually considered the facts, these early wins have increasingly been overturned, allowing these devastating bans to take effect. This includes the U.S. Courts of Appeals for the Sixth Circuit, where a three-judge panel overturned a lower court decision, which had blocked Tennessee’s ban. As a result of the Sixth Circuit decision, health care bans have gone into effect in Tennessee and Kentucky.

In each of these challenges, we are committed to exhausting every option we have with the goal of protecting the ability of our community to access this care for as long as possible. That’s why, today, we’ve asked the United States Supreme Court to review the lower court’s ruling and block these dangerous laws from further threatening transgender youth, destabilizing their families, and needlessly tying the hands of their medical providers.

How We’re Winning The Fight to Defend Trans Rights

In states across the country, judges are blocking bans on gender-affirming care and drag performances.

In this case, we have the honor of representing LW, a 15-year-old transgender girl, and her mother Samantha Williams. Like nearly 100,000 families with transgender kids ages 13 to 17 who now live in a state that has banned their health care, LW and her parents face the risk of either being denied the care they and their doctor know is right for their daughter or leaving the only home LW has known. Tennessee’s ban — like the nearly identical laws passed in 20 other state legislatures in the last three years — directly targets LW because she is transgender.

At the core of our argument before the court are two basic constitutional claims. First, Tennessee’s law bans treatment only when that treatment is provided to transgender youth like LW who have gender dysphoria. This targeted restriction discriminates based on both sex and the fact that a person is transgender and violates the Equal Protection Clause.

Second, Tennessee’s law interferes with the ability of parents like Samantha to make medical decisions for their minor children even though their children and doctors all agree the treatment is necessary. The law substitutes the state’s judgment for that of loving parents who are following the guidance of their children and the advice of doctors. The Supreme Court has long recognized that parents have certain fundamental rights concerning the care and custody of their minor children. While the rights of parents are importantly not absolute — and transgender youth have rights all their own — Tennessee’s law forces a one-fits-all approach to treatment that overrides the informed judgment of parents, adolescents, and doctors. Tennessee’s law forces parents like Samantha to “co-parent” with their state legislature. It is particularly pernicious when that legislative body has made it clear they have no interest in learning the truth about this medical care and young people like LW.

Asking the Supreme Court to review a lower court decision is always something we take seriously. We have witnessed this court disregard and infringe people’s bodily autonomy repeatedly, most recently with its devastating decision in Dobbs, which overturned Roe v. Wade. We take this step with full knowledge that, no matter what happens, we will have to fight for each other and use every tool in our toolbox to defend all our rights to bodily autonomy. With such critical, life-or-death health care on the line, we must continue to fight back against Tennessee’s law and exhaust every option available to us. No matter what happens, we will continue to fight thoughtfully and creatively to ensure that everyone can access the health care they need.

The last few months have been the most personally and professionally devastating of my life. My heart — and the heart of every transgender advocate fighting this fight — is heavy with the weight of the dehumanization and needless harm trans people like us are experiencing nationwide. But I also know that every out trans person has embraced the unknown in the name of living free from shame or the vice of other people’s expectations. By virtue of being a living, breathing trans person, each of us has chosen hope over despair. Regardless of any court, we will always exist in joyful defiance of efforts to limit who we are and who we can be.