Free Speech Isn't To Protect Presidents

A president with no restraints on speech is a tyrant.

Image: Gage Skidmore CC

“The Radical Left wants to Criminalize Free Speech!” former President Donald Trump wailed on his social media platform Truth Social. He was responding to the federal indictments handed down earlier this month alleging that he attempted to overturn the 2020 election. Trump’s lawyers, Trump partisans, and Trump himself have argued that Trump was merely exercising his free speech rights to say that he believed the election had been unfair, that Joe Biden had lost, and that Trump himself had won.

Most experts and Trump critics have pointed out out that Trump is being tried for actions, not for speech.  The indictment itself specifically says that Trump has the right, “like every American, to speak publicly about the election” and even to lie about it. He is not being indicted for that. Rather, he’s being indicted for making false claims as an excuse, or lever, to urge local and federal officials to set aside the popular vote, dismiss legitimate electors, and seat illegitimate ones.

Trump is being indicted for what he did, not what he said. But I think it’s also important to emphasize that the First Amendment is intended to protect individuals from the government; it was never intended as a way to shield executive power. Rejiggering it to try to defend Trump in his capacity as president may not violate the letter of the law. But it perverts its spirits in dangerous ways.

Freedom of speech is a protection for the people

The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” James Madison’s original draft makes what’s at stake even clearer. “The people,” he wrote, “shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

The first major test of the First Amendment was the Sedition Act of 1798, which made it illegal to print, speak, or publish criticism “with intent to defame” either Congress or the President.  John Adams used the act to prosecute political opponents. It expired in 1801, but at the time, and since, it’s been considered an iconic example of an unconstitutional law that violates freedom of speech.

It's clear from this history that the main concern of Madison, the framers, and their heirs was the suppression by the government of speech by the people. Madison was worried that presidents—like John Adams—would use the great power of the federal government to silence critics and jail those who contradicted them, mocked them, or criticized their policy. The founders weren’t worried that the president and legislators would be unable to speak. They were worried that powerful people in the executive and congress would be able to silence others.

This seems like common sense. But as president, Trump and his allies often claimed that the president’s own free speech was being restricted.

Trump wants his speech everywhere

One major example is the controversy which erupted after Trump was banned from Twitter in early January 2021. Trump used the platform to encourage and rally his supporters on January 6. Twitter determined that his conduct violated its policy on inciting violence, and permanently removed his account.

At the time, and afterwards, Trump insisted that Twitter had violated his free speech rights by not allowing him to post on the website. His son, Donald Trump, Jr., claimed that the ban meant that “Free speech no longer exists in America.”

But Twitter is a publisher. It chooses who can post on its platform and imposes broad rules on what they can say. After billionaire Elon Musk bought the company, he rewrote the rules, allowing Nazis to resume tweeting, barring people who criticized him personally, and changing the company name to “X”.  The change in editorial policy just underlines that it is an editorial policy. Twitter can print what it wants; the government can’t stop it.

But Trump, as president, was saying that First Amendment law should be used to force Twitter to publish his tweets. That’s much the same as if a president told the New York Times it had to print an op-ed from him every week, or if a president told the television networks they had to broadcast presidential speeches every hour on the hour. Trump wanted to use the power of the government to force the press (in this case Twitter) to speak with the president’s voice. When the president has “free speech” to never be silenced, no one else has the free speech to speak against him.

Presidential speech is presidential act

It's also important to note that much of what the president does in his official capacity is speak. Presidents speak to nominate candidates for office, for example; they speak to negotiate diplomacy; they speak (or write) to order documents declassified; they write orders to distribute and allocate campaign funds; they speak to concede elections or to declare victory. When presidents break the law, they generally do so by ordering people to do illegal things—like breaking into the Watergate Hotel, or hiding documents from the Justice Department.

Trump and MAGA appear to be working from a definition of “free speech” which means that the president is free to say anything—which effectively means the president can order anything, or do anything, without consequences. Reversing free speech to mean freedom for the president rather than freedom from the president effectively becomes an argument to allow the president—or at least a certain president—to ignore the constraint of law.

Free speech for ordinary people, as understood by Madison, is a vital bulwark of democracy and equality. It means that anyone—you, me, those folks over there—can criticize the most powerful people in the country without consequences.  But the Trumpian doctrine of free speech for Trump is the opposite of democratic. It holds that Trump can exercise the powers of the presidency as recklessly and illegally as he wishes, and no one can stop him.

As the founders were well aware, complete liberty for the ruler isn’t liberty. It’s tyranny. We should say so clearly while we still have free speech to do so.