Freedom of speech is our constitutional right, Mr. Trump

Miami Herald Editorial Board


Of the many fundamental values that Americans cherish, none is more deeply enshrined in the nation’s civic culture than the protection of free expression.

It is a right guaranteed by the First Amendment to the U.S. Constitution, grounded in events and ideas that date back to colonial era, when John Peter Zenger was acquitted of criminal libel in 1734 for his satirical commentary about the governor of New York.

Americans honor the nation’s public institutions and the men and women they elect to office, but they — we — reserve the right to examine, scrutinize and criticize their performance. Harry Truman’s advice for politicians who didn’t like it has become legend: “If you can’t stand the heat, get out of the kitchen.”

Regrettably, Donald Trump doesn’t seem to understand this tradition or the wider issue concerning free speech.

Last week, he suggested that those who engage in flag-burning should be stripped of citizenship. Coming from a president-elect, his comment raises alarm, deepening legitimate fears that Mr. Trump has little or no regard for either freedom of expression or the law, and that he is prepared to use the power of the presidency to stifle criticism.

Regarding flag-burning, Mr. Trump, frankly, seems utterly clueless. In the first place, the Supreme Court ruled in 1958 that the government cannot revoke the citizenship of a U.S. citizen as a form of punishment.

This is settled law. In subsequent cases years later, the court declared that the government cannot prosecute a person for burning a U.S. flag, because to do so would be inconsistent with the First Amendment.

This, too, is settled law, although some justices have made it clear that they believe the act itself is reprehensible. Even the late Justice Antonin Scalia — a conservative stalwart whom Mr. Trump professes to admire — supported the idea, albeit reluctantly.

It is a form of protected speech, he said in an interview, although he also said he personally would prohibit it — “if I were king.”

Mr. Trump may not realize that he is an elected president in a democracy that cherishes the right of free speech. He is not a king.

His behavior during the campaign featured daily assaults on the media when the coverage was not to his liking. “Lowlifes,” “scum,” “enemies,” became some his favorite epithets to hurl at reporters covering his speeches and at those news media outlets against which he held a grudge.

Such name-calling should be beneath the dignity of a president, or a president-to-be. Reporters are used to being called names; that’s not the issue. But when the president resorts to that level of speech, it diminishes the institution of the presidency and the individual in office.

Mr. Trump has also threatened to “open up our libel laws” to punish his critics. If he’s serious, he risks undermining a fundamental American right. And if he’s not serious, it’s still wrong: Idle threats encourage the nation’s enemies to vilify, as he has, the responsible media.

There is every sign that Mr. Trump intends to bring his war against the press to the White House. The challenge calls for added vigilance by the news media and a renewed commitment to the job of ensuring that public officials are held accountable.

John Peter Zenger won his case by establishing that truth is a defense against charges of libel. Even in the “post-factual” era, a reliance on the principle of truth will prevail against the man who would be king.