Timothy Zick’s ‘Executive Watch’: Introduction – First Amendment News 457

By Timothy Zick, William & Mary Law School Robert & Elizabeth Scott Research Professor and John Marshall Professor of Government and Citizenship.

I want to thank Ron Collins for inviting me to contribute a regular feature on the Trump administration and the First Amendment. To say I am delighted to be here masks a certain uneasiness with the project. 

As Ron’s kind introduction noted, six years ago I published a book, “The First Amendment in the Trump Era,” that examined challenges to free speech and press during the 2016 campaign and roughly the first half of the first presidential term for Donald Trump. The fact that there was already enough material by then for a manuscript on the subject was deeply alarming. Matters did not improve. The book was published prior to (among other things) Trump’s threat to use military force to blanketly suppress all Black Lives Matter protests, and before Trump was accused of inciting the January 6 insurrection. 

Skeptics at the time wondered how long the subject would be relevant — after all, how long could the First Amendment challenges of the “Trump Era” last? With the latest examples of disturbing suppressive actions, we now have at least a partial answer to that question. 

In all of this, it is important to keep at least three preliminary points in mind: First, suppression is not confined to a political party, be it Woodrow Wilson or Richard Nixon, and beyond. Second, since the First Amendment is a constitutional guarantee expressly limiting government power when it comes to free expression and faith, the primary focus is on suppression. Third, in this realm, as with any other controversial one, differences of opinion are inevitable. 

That said, I have tried to confine my analysis to reasonably demonstrable claims of executive branch overreach and government-related forms of suppression. Although I acknowledge the difficulties in suing a president for First Amendment violations, the present concerns extend to the executive branch as a whole. In any event, I am interested not just in protecting individual rights but also the broader effect of executive actions on First Amendment institutions, values, and principles.

While presidential actions have historically raised significant First Amendment concerns, the frequency and implications of Trump’s actions in this area are unprecedented. The current Trump administration has been described as “a kind of legal hydra, in which the defenders of the Constitution are facing one body with many heads, and those heads are acting in concert.” 

While my book focused primarily on Trump, “Executive Watch” will take a broader view of the actions not just of the president himself but those working across the executive branch — as well as those, like Elon Musk and his underlings, who work on Trump’s behalf in a quasi-governmental capacity. While President Trump’s own statements, lawsuits, and executive actions will necessarily be part of the discussion, current threats to free speech and the press emanate from actors, institutions, and agencies beyond the Oval Office. Even early on, the Trump administration has initiated a whole-of-government effort that affects the First Amendment rights and interests of private speakers, reporters, legacy and social media, K-12 teachers and students, university students and faculty, government employees, and the public. 

Starting to keep a record 

President Trump’s litany of executive orders, including those relating to free speech and the press, have already received significant attention — some even positive. But given the general character and overall pace of things, it is easy to focus on the moment and miss the broader implications of the present time. When it comes to the First Amendment, in some notable ways the first Trump term and the second are related. However, this time the Trump administration’s actions will often be part of a more comprehensive agenda to challenge, and in some cases upend, bedrock First Amendment principles and values. 

My hope is that “Executive Watch” will be a valuable resource for those interested in how the administration’s policies affect First Amendment concerns. As Ron notes, it is important that we compile and keep a record of this period for current and future reference. Toward that end, to close out this post I will provide a list of general First Amendment topics, with selected sources concerning each. I will update that repository as events unfold.

Overview: Eight categories of threats to free expression

With that introduction, this first installment of “Executive Watch” provides an overview and identifies various categories of First Amendment concerns relating to the Trump administration’s latest agenda. Subsequent contributions (which may be shorter) will place these actions in context and explain how specific executive branch actions relate to broader themes. I might also comment on notable executive policies as they are adopted and implemented, and in which ways they advance or curb free speech freedoms.

In just a few short weeks, the Trump administration has taken an extraordinary number of actions implicating a range of First Amendment concerns. One of President Trump’s many recent executive orders expresses unwavering support for the First Amendment and promises to end censorship. However, some recent actions by  Trump and his administration are antithetical to those goals.

1. Threats to the institutional press: “The First Amendment in the Trump Era” identified maintaining a free and independent press as a critically important bulwark against executive abuses of power. That concern has persisted — indeed, it has become more acute. As he did in his first term, Trump has continued to identify many in the institutional press as the “enemy of the American people.” This should not be treated as mere political hyperbole. The Trump administration has promised retribution and is targeting individual journalists. It has threatened to investigate reporters in national security cases, block media mergers, and deny outlets and reporters access to information. There is evidence these threats are already taking a toll on the press’s independence.
2. Private lawsuits: One of Trump’s preferred strategies for bringing his critics to heel is the private lawsuit. Trump recently sued “60 Minutes” and CBS for allegedly editing an interview with then-Vice President Kamala Harris in ways that obscured or improved her answers to questions, ABC and George Stephanopoulos for statements that Trump had been found liable for rape in a civil case, an Iowa pollster and The Des Moines Register for publishing a flawed poll showing Trump trailing Harris in Iowa, and the Pulitzer Board for recognizing The New York Times for its reporting on the Russia investigation. Fearful of government overreach, some media outlets have already settled defamation lawsuits for millions of dollars, raising serious concerns about press obeisance and lack of independence. High-level executive branch appointees have warned that the press should expect more lawsuits based on allegedly biased or critical press coverage of the administration.
3. Threats to broadcast media: Broadcast media are also in the Trump administration’s crosshairs. The Federal Communications Commission has instituted investigations of media outlets, ostensibly for violating their obligation to broadcast in the “public interest.” The agency recently compelled CBS to disclose the transcript of the Harris “60 Minutes” interview and is investigating CBS based on that broadcast. Agency officials have also indicated that broadcast licenses may be revoked or suspended based on editorial and advertising activities or simply for alleged “bias.” Trump and his allies have also proposed defunding all public broadcasting, including NPR and PBS, which present educational and other content including shows like “Elmo,” “Big Bird,” and “Fresh Air.”
4. Threats to digital media: The Trump administration has likewise taken steps to influence and control the digital public sphere. Trump recently extracted a $25 million settlement from Meta (formerly Facebook) for banning him for his false and incendiary posts about the 2020 election. As president, Trump has refused to enforce a law requiring that TikTok divest from Chinese ownership, even though the Supreme Court upheld it. Whatever one makes of that ruling, after Trump’s effort to “save” TikTok, digital media moguls lined up to donate millions of dollars to his inaugural. Social media platforms also changed content moderation policies in ways that facilitate election denial, public health misinformation, and hateful expression. One thing Trump gets right in his executive order on free speech is that governmental efforts to coerce social media companies to remove content is problematic. However, unleashing online disinformation, misinformation, and threatening speech will fundamentally alter the culture of online expression.
5. Threats to educational institutions: Similarly, the Trump administration has taken steps to control curricular and other expression in the nation’s educational institutions. An executive order calls for withholding federal funding from any K-12 school that teaches that the United States is “fundamentally racist, sexist or otherwise discriminatory.” Another order purports to “end radical indoctrination” in the nation’s K-12 schools by ordering various federal agencies to develop a plan to eliminate federal funding for instruction relating to “gender ideology” or “discriminatory equity ideology.” The same order requires agencies to adopt “patriotic education measures” for use in K-12 schools. The Education Department has also been ordered to scour the nation’s university campuses and classrooms for anti-Semitism and discussions about race, gender identity, and other disfavored topics. President Trump has also ordered the Department of Justice to crack down on student protesters. The federal government has advised universities to monitor the activities of their foreign students studying on visas — so that officials can deport them if they speak out in favor of Palestine or Hamas.
6. Threats to government employees: Agency actions and executive orders have threatened the speech rights of agency employees and government contractors. There is a widespread effort underway to purge public employees based on their lack of loyalty to Trump, their real or perceived political biases, or their participation in lawful trainings and other activities. FBI employees recently filed privacy and free speech retaliation lawsuits against the Department of Justice, alleging the agency has targeted them for dismissal based on their work investigating January 6 cases. The DOJ has also fired prosecutors for working on January 6 prosecutions. At executive agencies, new rules bar federal employees, contractors, and agency materials from referencing gender identity or fluidity. Executive orders forbid the federal workforce from engaging in events or discussions relating to diversity, equity, and inclusion and even bar employees from using gender identification in email correspondence.
7. Suppression of vital information: The federal government provides vital information to the public concerning health, the environment, and other matters. Since the election, however, many agency websites have gone dark. The Trump administration has ordered executive agencies to remove information from their websites concerning gender, gender identity, contraception, climate change, and other topics. It has also ordered agency employees not to share the results of their ongoing work and paused federal funding for scientific and other research. Although the executive branch can set agency policies and formulate public messaging, efforts to broadly curtail the public’s access to information affect both the press’s ability to report on such matters and the public’s ability to receive information about public health, the environment, and other topics.
8. Imposing official orthodoxies and suppressing dissent: Many Trump administration proposals and measures are aimed at imposing an official orthodoxy concerning various topics and issues. Still others target protected political dissent. The administration is seeking to impose official definitions of gender and approved narratives regarding American history, race, and patriotism. Since his first term, President Trump has made no secret of his desire to crack down on protest and dissent. During the 2024 campaign, Trump vowed to “crush” the pro-Palestinian movement. He has long supported making flag burning a crime. Imposing official orthodoxies and suppressing dissent are two of the broad themes that tie many of the Trump administration’s recent actions together. 

Below is a topical sampling of reports and commentary about the risks recent Trump administration actions have posed to free expression. 

Actions against the press and journalists

• Katie Robertson, “Trump and Musk Attack Journalists by Name in Social Media” Posts,” The New York Times (Feb. 7)
• Katie Robertson, “Trump Administration to Remove 4 Major News Outlets From Pentagon Office Space,” The New York Times (Feb. 1)
• Ian Bassin and Maximillian Potter, “On anticipatory obedience and the media,” Columbia Journalism Review (Oct. 8, 2024)
• Adam Devitt, “How Will the Fourth Estate Approach Trump’s Second Term?” New York University (Jan. 14)
• David Rutenberg, “Trump’s Blueprint for Bending the Media Has Nixon Written All Over It,” The New York Times (Feb. 9)
• David Firestone, “There’s Still Time for the Senate to Support the First Amendment,” The New York Times (Dec. 19)

Defamation and related lawsuits

• David Enrich, “Trump’s New Line of Attack Against the Media Gains Momentum,” The New York Times (Feb. 7)
• Ronnie London, “Paramount Shouldn’t Fold to Trump,” Reason (Feb. 4)
• Andy Craig, “The free speech crisis hiding in plain sight,” MSNBC (Jan. 28)
• Jameel Jaffer, “This Is Not a Moment to Settle With Trump,” The New York Times (Feb. 4)
• Will Creeley, “Media outlets must not cave to Trump’s lawfare,” FIRE (Feb. 4)
• Guha Krishnamurthi, “Reverse Payments and Political Corruption,” Dorf on Law (Jan. 28, 2025)
• Lauren Hirsh, James B. Stewart, and Michael M. Grynbaum, “Paramount in Settlement Talks With Trump Over ‘60 Minutes’ Lawsuit,” The New York Times (Jan. 30)
• Jonathan Chait, “Trump Has Found the Media’s Biggest Vulnerability,” The Atlantic (Dec. 18)
• Adrienne LaFrance, “Capitulation Is Contagious,” The Atlantic (Jan. 23)
• Alexandria Stegrad, “Trump slams CBS over Kamala Harris ‘60 Minutes’ interview transcript, says network should be shut down: ‘Scandal!’” The New York Post (Feb. 6)
• Rebecca Robertson, “Judge Rejects Bid to Dismiss Trump Libel Suit Against Pulitzer Board,” The New York Times (Jul. 21)
• David Enrich, “Trump’s Suit Against the Pulitzer Board Faces a Hurdle: His Previous Arguments,” The New York Times (Jan. 27)
• Ronald Collins, “‘The lawsuit is the punishment’: Reflections on Trump v. Seltzer,” First Amendment News (Jan. 16) 
• Michael C. Dorf, “Trump’s Absurd Iowa Polling Lawsuit,” Dorf on Law (Dec. 18) 

Broadcast and public media

• Ted Johnson, “Donald Trump and Elon Musk, Who Have Claimed To Be Restoring Free Speech, Call For Media Figures To Be Fired,” Yahoo! News (Feb. 7)
• Robert Corn-Revere, “A Plea for Institutional Modesty,” Columbia Journalism Review (Feb. 6)
• Pema Levy, “Trump’s FCC Pick Wants to Intimidate Broadcasters and Enrich Trump Allies,” Mother Jones (Nov. 18)
• Benjamin Mullin, “F.C.C. Releases ‘60 Minutes’ Interview With Kamala Harris,” The New York Times (Feb. 5)
• Robert Davis, “Colorado public media outlets express concern at Trump’s FCC investigation threat,” The Colorado Sun (Feb. 4)
• Benjamin Mullin and Kate Conger, “NPR and PBS Stations Brace for Funding Battle Under Trump,” The New York Times (Dec. 27) 

Social media

• Mike Masnick, “Musk Shows Us What Actual Government Censorship On Social Media Looks Like,” Tech Dirt (Feb. 3)
• Bobby Allyn, “Meta agrees to pay Trump $25 million to settle lawsuit over Facebook and Instagram suspensions,” NPR (Jan. 29)
• Alex Abdo, “A Free Speech View on the ‘Free Speech’ Executive Order,” Knight First Amendment Institute (Jan. 21) 
• Kevin Rector, “Trump talks ‘free speech’ while moving to muzzle those he disagrees with,” The L.A. Times (Jan. 26)
• Lo Dodds, “‘He is world’s leading free speech hypocrite’: Elon Musk’s battle with Wikipedia is part of his war on truth,” The Independent (Jan. 24)
• Xiangnong (George) Wang, “President Trump’s Attempt to “Save” TikTok Is A Power-Grab That Subverts Free Speech,” Knight First Amendment Institute (Jan. 21)
• Alan Z. Rozenshtein, “Trump’s TikTok Executive Order and the Limits of Executive Non-Enforcement,” Lawfare (Jan. 21)
• Hadas Gold and Liam Reilly, “Disinformation experts blast Trump’s executive order on government censorship as ‘direct assault on reality’,” CNN (Jan. 23)
• Robby Soave, “Disinformation Experts Hate Trump’s Free Speech Executive Order,” Reason (Jan. 23)

Education

• Zach Montague and Erica L. Green, “Trump Signs Order to Promote ‘Patriotic Education’ in the Classroom,” The New York Times (Jan. 29)
• Juan Perez, Jr. and Mackenzie Wilkes, “Trump issues orders on K-12 ‘indoctrination,’ school choice and campus protests,” Politico (Jan. 29)
• Helen Coster and Nathan Layne, “Trump issues orders to promote school choice, end “Anti-American” teaching,” Reuters (Jan. 29)
• Collin Binkley and Zeke Miller, “Trump’s orders take aim at critical race theory and antisemitism on college campuses,” Associated Press (Jan. 30)
• Jessica Blake, “Trump’s Antisemitism Order Leaves Many Questions Unanswered,” Inside Higher Ed (Feb. 4)
• Chris Marr, “DEI Officers Claim Trump Orders Threaten Free Speech in New Suit,” Bloomberg Law (Feb. 3, 2025)
• Robert Shibley, “Analysis: Harvard’s settlement adopting IHRA anti-Semitism definition a prescription to chill campus speech,” FIRE (Feb. 3)
• Sharon Otterman and Anemona Hartocollis, “Trump Order Pushes Universities to ‘Monitor’ Protesters on Student Visas,” The New York Times (Jan. 30)
• Susan H. Greenberg, “Trump Vows ‘Forceful’ Measures to Combat Campus Antisemitism,” Inside Higher Ed (Jan. 30)
• Sarah McLaughlin, “Trump’s threat to deport anti-Israel protesters is an attack on free speech,” MSNBC (Jan. 31)
• Kendell Tietz, “Jewish community responds to Trump executive order vowing to deport pro-Hamas activists with student visas,” Fox News (Feb. 2)
• Hillel Italie, “Free speech organizations denounce Education Department’s calling book bans a ‘hoax’,” Associated Press (Jan. 27)
• Michelle Goldberg, “Trump’s Plan to Crush the Academic Left,” The New York Times (Jan. 24)
• Ryan Quinn, “AAUP Opposes ‘Anticipatory Obedience’ to Trump, GOP,” Inside Higher Ed (Jan. 24)

Public Employees 

• Kyle Cheney and Josh Gerstein, “FBI agents sue to block DOJ from compiling list of officials who worked on Jan. 6 or Trump cases,” Politico (Feb. 4)
• Hafiz Rashid, “FBI Sues Trump’s DOJ in Stunning Double Whammy of Lawsuits,” The New Republic (Feb. 4)
• Ken Dilanian and Ryan J. Reilly, “Trump administration fires DOJ officials who worked on criminal investigations of the president,” NBC News (Jan. 27)
• Selina Wang, Dr. Mark Abdelmalek, Anne Flaherty, and Will Steakin, “Federal employees told to remove pronouns from email signatures by end of day,” ABC News (Jan. 31)

Data, information, and transparency

Orthodoxy and dissent

• Sahil Kapur, “‘Totally illegal’: Trump escalates rhetoric on outlawing political dissent and criticism,” NBC News (Oct. 13)
• Adrienne LaFrance, “Donald Trump’s Hatred of Free Speech,” The Atlantic (Nov. 4)
• Spencer Reynolds, “The Little-Known Federal Agency That’s Primed to Crack Down on Dissent,” Brennan Center (Dec. 9)
• Peter Nicholas, “Trump administration swiftly enacts retribution against political enemies,” NBC News (Jan. 26)
• Ernesto Londono, “Transgender Americans Challenge Trump’s Passport Policy in Court,” The New York Times (Feb. 7)
• FIRE, “Trump’s proposed constitutional amendment banning flag burning would have unintended consequences,” (Aug. 29)

Last scheduled FAN

FAN 456: “Coming soon: ‘Executive Watch’ — Tracking the Trump Administration’s free speech record”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.