More importantly, if they followed Smith’s urging, they quickly would find the response to the “free speech” defense that’s getting so much play by Trump’s political and media allies. “What the government would have to prove in this case, beyond a reasonable doubt, is that speech is not protected by the first amendment, and they’ll never be able to do that,” Trump’s defense lawyer John Lauro said in a CBS News interview. “There is no First Amendment privilege to commit crimes just because you did it by speech,” Samuel Buell, a Duke University law professor who led the justice department’s prosecution of Enron, told the New York Times.