Former President Donald Trump continues to maintain that he was not responsible for inciting any violence on January 6, 2021, and this is a stance that he might be able to stand with until there are criminal charges filed against him. This week the House Select committee investigating the January 6th U.S. Capitol insurrection, made four criminal referrals against Trump as the final result of their year-long investigation into the incident.

The referrals included the following four charges: “obstruction of an official proceeding, conspiracy to defraud the U.S., conspiracy to make a false statement and to “incite,” “assist,” or “aid or comfort” an insurrection.” Trump’s legal team is able to use the First Amendment as a defense for some of these charges.

Free speech has had protection from the U.S. Supreme Court for decades however, that does not mean there aren’t cases in which it has been criminalized. The 1969 case Brandenburg v. Ohio, sets a two-fold rule precedence for dealing with speech. The case first determined that for it to be considered criminal speech needed to have been used to incite lawless action and that the speech was also likely to be successful in doing so.

However, University at Buffalo School of Law professor Jim Gardner pointed out that currently, the Supreme Court’s conservative majority might not follow the Brandenburg rule. He added that in previous cases they have shown to “throw out long-standing precedent, and it wouldn’t surprise me if they came up with some other rule that was more speech friendly.”

On January 6, Trump delivered a Save America rally speech after which many of his supporters stormed the U.S. Capitol. During the speech, Trump told his supporters to “fight” over the stolen election. However, Trump maintains that everything he said on the day is protected by the First Amendment.