- The Washington Times - Thursday, December 3, 2020

Lawyers defending conservative operatives Jacob Wohl and Jack Burkman in a voter intimidation lawsuit argued Thursday their conduct was covered by the U.S. Constitution’s protection of the freedom of speech.

Attorneys for Mr. Wohl and Mr. Burkman made that case in a letter filed in federal court in Manhattan, where their clients were sued over robocalls made in their names warning about voting by mail.

The calls, which contained several false claims about mail-in voting, were made to thousands of phone numbers before Election Day when President Trump ran against Democratic rival Joseph R. Biden.

Republicans led by Mr. Trump criticized the mail-in voting process before the White House race ended Nov. 3, and the president has continued to rally against it in the weeks since losing it.

In the calls, a woman identifying herself as reaching out on behalf of Mr. Wohl and Mr. Burkman falsely claimed authorities will track down people who vote by mail to collect debts and make arrests.



The caller also claimed mail-in ballots may be used to track people for mandatory vaccinations and concluded with the warning: “Don’t be finessed into giving your private information to the man.”

Attorneys general in Michigan and Ohio brought criminal charges against the men over the robocall, while the civil suit in New York was filed by the National Coalition on Black Civil Participation.

Thousands of phone numbers throughout the country received the robocall, including ones with area codes associated with largely Black cities such as Detroit and Cleveland, according to authorities.

In a letter addressed to U.S. District Court Judge Victor Marrero, lawyers for the defendants argued the misleading robocalls included speech they maintain is protected by the Constitution.

“Under the First Amendment, the merits of political controversy must be resolved through the process of free and open debate, not through costly litigation. That principle applies directly here, where mail-in voting is at the center of a heated political debate,” defense lawyers David M. Schwartz and Randy E. Kleinman wrote on behalf of Mr. Wohl and Mr. Burkman.

“The First Amendment recognizes that the surest path to truth in the realm of political controversy is through the free and open exchange of ideas, not through litigation,” the lawyers added.

The First Amendment, they added, “provides broad leeway for rhetorical hyperbole on matters of public controversy,” regardless of the medium used to make it, according to the defense attorneys.

“That Defendants expressed their opinions through a robocall instead of an op-ed piece, billboard, television commercial or soapbox on the street is not relevant,” the lawyers added. “Defendants are well within their First Amendment rights to champion these opinions regardless of whether they are ultimately proven true and irrespective of the medium.”

The National Coalition on Black Civic Participation alleges the calls violated the Voting Rights Act of 1965 and the Ku Klux Klan Act of 1871, and they previously obtained a court order to stop them.

Indeed, lawyers for Mr. Wohl and Mr. Burkman added that the civil suit should be dismissed as moot because the election has ended. They have also complied with an October court order that required them to call back the thousands of recipients of the original call and walk back the misleading claims, the attorney noted.

“Given that Defendants have incurred the cost of a curative robocall and must comply with the terms of their release pending trial in multiple jurisdiction[s] it is absolutely inconceivable that there would be an instance of recurrence of the alleged violation,” the lawyers added.

Mr. Wohl, of California, and Mr. Burkman, of Virginia, face felony charges in Michigan and Ohio, includes various criminal counts of voter intimidation and fraud. They have pleaded not guilty.

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