ATLANTA — The judge overseeing the Georgia 2020 election RICO case has denied former President Donald Trump's motion to dismiss the case on First Amendment grounds.
In his order, the judge also denied similar First Amendment challenges raised by other co-defendants in the case.
A hearing was held last week for arguments on the motion, in which Trump's attorney, Steve Sadow, argued that all of the former president's alleged criminal acts were actually political speech about the 2020 election that is protected by the First Amendment.
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Prosecutors at that hearing countered that the First Amendment's protections are not limitless.
"Speech integral to criminal conduct is not protected," said Donald Wakeford, a chief senior district attorney in the Fulton County D.A.'s Office.
The order issued Thursday by Judge Scott McAfee ruled that constitutional First Amendment protections "do not reach the actions and statements alleged by the State."
Citing precedent, Judge McAfee wrote that "although the First Amendment is 'a broad umbrella that shelters all political points of view and shields a wide range of avenues for expression,' free speech -- including political speech -- is not without restriction."
"Even core political speech addressing matters of public concern is not impenetrable from prosecution if allegedly used to further criminal activity," the judge continued.
However, Judge McAfee left open the possibility for future challenges "at the appropriate time after the establishment of a factual record."
Emory Law School professor John Acevedo said the ruling was not a surprise.
"It's in line with Georgia's previous caselaw on RICO and First Amendment. It's in line with federal rulings on this issue," he said.
According to the law professor, the judge's order Thursday does not foreclose the defendants' ability to raise a speech-based defense at trial before a jury.
"He said a lot of these were facts to be proven to the jury," said Acevedo of Judge McAfee's ruling. "Whether or not one of the defendants themselves wants to take the stand or a political operative or an expert are all possibilities to take the stand to say: 'look, yes these were said but' -- and then give a non-criminal reason for that speech."
Defense attorney Steve Sadow said in a statement following the ruling:
“President Trump and other defendants respectfully disagree with Judge McAfee’s order and will continue to evaluate their options regarding the First Amendment challenges. It is significant that the court’s ruling was without prejudice, as it made clear that defendants were not foreclosed from again raising their ‘as-applied challenges at the appropriate time after the establishment of a factual record.’”
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