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President-elect Donald Trump called for an investigation late last month after Des Moines Register pollster Ann Selzer predicted just days before the election that he would lose Iowa by three points. Instead, he won the state by 13 points.

“She knew exactly what she was doing,” Trump  to Truth Social. He then thanked the people of Iowa for his record-breaking win in the state, “despite possible ELECTION FRAUD by Ann Selzer and the now discredited ‘newspaper’ for which she works. An investigation is fully called for!”

Seltzer, who has been  the “best pollster in politics,” caused a sensation last month when her survey for the Des Moines Register found Vice President Harris leading in Iowa. After Trump won the state by almost 230,000 votes, Seltzer  that she will retire and move on “to other ventures and opportunities,” adding that she tendered her resignation a year ago.

Trump is well within his rights to criticize Selzer’s poll. But his call for an official investigation raises First Amendment concerns.

It should first be said that it is not election fraud to make electoral projections that do not pan out — it’s constitutionally protected speech. Even if, hypothetically, Selzer’s numbers were fabricated, this would amount to misinformation or, if she did it deliberately, disinformation. But the First Amendment would protect the speech regardless. In fact, most lies are protected speech. Given their criticism of the 2020 presidential election, Trump and his supporters should be particularly attuned to the danger of government regulation of political speech or commentary about elections.

The call for an investigation into Selzer’s protected speech is alarming because investigating someone based on their protected expression violates the First Amendment. The mere act of threatening investigations of pollsters and newspapers that publish unfavorable polls has broader implications for free speech.

The chilling effect of these kinds of threats incurs a cost too great to bear in a democracy that so deeply relies on the free exchange of ideas. 

This is especially true when such threats carry the weight of presidential power. Trump’s words are amplified by the authority of the Executive Office of the President which he is about to occupy, and his remarks alone are enough to chill speech — as people may preemptively silence themselves to avoid being targeted for investigation — and undermine the constitutional protection of free expression.

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We have written about the chilling effect of investigations. But this issue highlights the chilling effect of criminal accusations by government officials. Of course, government officials can accuse people of crimes, and do so to each other all the time, but the problem is the call for investigation. In the early 1990s, law professor Malcolm Feeley described the lack of “justice” resulting from low-level criminal courts by coining the phrase “the process is the punishment.” Feeley  people were more likely to plead guilty to crimes because a fine or a brief stay in jail was less headache than legal fees or losing one’s job while awaiting trial in jail. 

The accusation is the conviction. The investigation is the punishment.

Nor is Trump’s call for an investigation here an isolated incident. During his presidency, he called for investigations into , , and  because of their constitutionally protected speech. In recent months, Trump has  to revoke the federal airwave licenses of news broadcasters whose coverage he dislikes.

The chilling effect of these kinds of threats incurs a cost too great to bear in a democracy that so deeply relies on the free exchange of ideas. When it comes to our most sacred freedoms, we must remain vigilant.