Trump Admits: “We Took The Freedom Of Speech Away”

In what may be the most accidentally honest moment of his presidency, Donald Trump just admitted what we've been documenting for months: We took the freedom of speech away."

Yes, that's literally what he said:

For those who've been following Trump's systematic assault on the First Amendment-which we've covered extensively at Techdirt-this admission is remarkable not for its content, but for its candor. Here's a president whose supporters claimed he would bring free speech back" explicitly acknowledging that his administration has done the opposite.

He said this at the White House's bizarre roundtable on antifa, which involved a bunch of serial fabulists and conspiracy theorists feeding the President's delusional need to justify using the military on American citizens who live in states that didn't vote enough for him.

If you can't see the video, the transcript is pretty straightforward:

We made it one year penalty for inciting riots. We took the freedom of speech away because that's been through the courts and the courts said you have freedom of speech, but what has happened is when they burn a flag it agitates and irritates crowds.

I've never seen anything like it on both sides. And you end up with riots so we're going on that basis.

We're looking at it from not from the freedom of speech, which I always felt strongly about, but never passed the courts. This is what they do, is they incite... when you burn an American flag, you incite tremendous violence. We have many examples of it. Many, many examples of it. And it's actually down on tape and you see things happen that just don't happen unless it's the flag that's burning.

Well, thank you for admitting what we all know is true.

Now, of course, this is a bit of typical Trumpian word salad, but we can parse what he's trying to say in a manner that likely reveals what the circle of suck-ups around him have been telling him in order to justify their deeply censorial, deeply authoritarian desires.

Back in August he signed an executive order, which has no legal basis for anything, claiming that federal prosecutors should try to figure out a way to prosecute people for burning the flag by arguing that it's incitement to imminent violence. This is because there is a widely recognized exception to the First Amendment which is incitement to imminent lawless action."

The theory, such as it is, goes like this: while flag burning is normally protected speech, Trump's handlers think they can circumvent that protection by arguing that flag burning constitutes incitement to imminent lawless action.

Normally incitement" is very, very limited to situations where someone points at someone else and tells people go kill that person" or something of that nature. It has to be clear, directed, and involving imminent lawless action" meaning right after the words are said.

Flag burning is not that. And, for all his talk about never passed the courts," this has been tested in the courts and the courts have been pretty clear: burning a flag is almost always First Amendment protected expression. The key case here is Texas v. Johnson:

We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag - and it is that resilience that we reassert today.

The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.

When Trump says this never passed the courts," he's not just wrong-he's demonstrating a fundamental misunderstanding of how Supreme Court precedent works. Texas v. Johnson didn't fail to pass" the courts; it established that flag burning is constitutionally protected speech.

As for the one year penalty" that is not in the executive order, nor is it something a President could determine by Executive Order. But no one dares tell the mad king he's got no idea what he's talking about.

More telling than Trump's legal confusion is his claim to possess extensive evidence that doesn't exist. He insists they have many, many examples" of flag burning inciting violence that they have down on tape." This should be easy to verify-if such tape existed.

If journalists cared about getting this right, they could ask him any number of questions, starting with why he's ignoring Texas v. Johnson. Or, maybe, since he claimed they have many, many examples" of flag burning inciting violence, that they have down on tape," someone should ask him to provide the tapes. Where is the evidence of this? He says they have so much of it, so surely they can show it?

The Brandenburg standard for incitement requires speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Flag burning, as symbolic political speech, simply doesn't meet this test. Not even close. There would need to be specific, directed calls to violence, not mere symbolic expression that some find offensive.

But we all know it's the usual nonsensical ramblings of an old man who has no idea what's actually going on, and who is easily fooled by fake things they put on Fox News.

The only honest and accurate thing he said in the whole thing was the line that every Democrat should use in their political ads:

We took the freedom of speech away."

Yes, Donald, you sure did. And you continue to do so. Bring this up every day. Make the quote famous. Make sure everyone knows what Donald Trump is admitting.

This admission fits perfectly into Trump's broader pattern of attacking the First Amendment. From threatening to sue publishers to promising to imprison protestors, this administration has consistently treated free speech as an obstacle to be overcome rather than a principle to be protected.

And everyone who supported him on the false belief that he would bring free speech back" might want to do some soul searching to understand why you bought an obvious lie from an obvious fabulist.