“[T]he privilege of the writ of habeas corpus can be suspended in a time of invasion. So it’s an option we’re actively looking at.” — Stephen Miller (May 9)
“[T]his strikes me as raising the temperature to a whole new level.” — Stephen Vladeck (May 9)
“No one should be arrested and locked up for their political views”— Esha Bhandari (ACLU lawyer for Rümeysa Öztürk)
So much of the constitutional damage done (much of it irreversible) by the president’s executive orders is accomplished by what I tag their “So what?” stratagem, which is indifferent to the law or what courts rule. It is a tactic that strikes at the heart of constitutional government as we know it. Like so much else with this administration, it is done in lawless plain view and thus becomes increasingly normalized as Congress remains silent, the attorney general and cabinet officials remain subservient, and Democrats remain ineffective.
The objective: Rendering judicial rulings ineffectual
Some six decades ago, political science Professor Martin Shapiro underscored the importance of judicial review in safeguarding free speech rights. The book was titled “Freedom of Speech: The Supreme Court and Judicial Review.” The significance of that point was recently highlighted when Judge William K. Sessions ordered Tufts University doctoral student Rümeysa Öztürk free from unlawful detention at a South Louisiana ICE Processing Center. Ditto when Judge Geoffrey Crawford ordered the release of Mohsen Mahdawi, a Palestinian Columbia student who had been detained by immigration authorities when he went to his U.S. citizenship interview.
Judicial review is vital to our system of constitutional government. Since at least 1803, the governing principle has been that the Supreme Court and lower courts are the final arbiters of the Constitution, subject only to the amendment process. But laws have staying power only insofar as they are obeyed. When ignored, their efficacy depends on judicial enforcement. Their rulings are thus entitled to respect. Such respect has been honored . . . until now.
Trump could suspend habeas corpus, Stephen Miller says | LiveNOW from FOX
In brazen and bizarre ways, the Trump administration’s strategy has been to subvert that constitutional principle.
Consider this: What if the government acts in flagrant unlawful ways with the intent that its objectives will be realized whenever judicial relief comes too late to prevent them? Or what if judicial relief proves ineffective in correcting the larger non-litigated fallout of such orders? That is the Trump administration’s playbook, and it has already proven rather successful — it is their “Trump card,” so to speak.
That tactic poses a clear and present danger to our First Amendment freedoms, among others.
Examples of the ‘So what?’ stratagem
The fear principle: Issue an executive order, enforceable by the attorney general, targeting a particular law firm. Make demands of that law firm. Most such firms will capitulate while countless unnamed others will take their marching orders from those threats. Such coercion succeeds even if the initial order was wildly unconstitutional, and it does so in the absence of judicial review. Even if successfully challenged in the courts, there are still the costs of litigation and the potential loss of clients.
Effective intimidation: Issue an executive order, enforceable by one or more federal agencies, targeting a particular university. Make demands of that university and threaten it with loss of federal funding and/or the revocation of its 501(c)(3) tax status. Here again, such an “enemies’ list” of threats is unconstitutional. Such intimidation is nonetheless effective in at least two ways: First, it is a shot across the bow to other universities to fall in line. Second, it forces the university that contests the matter to incur the costs (financial and otherwise) of trial and appellate litigation. Thus, the resulting “victory” has its punitive consequences.
Frustrating judicial relief: Issue an executive order, enforceable by one or more federal agencies, targeting immigrants. Proceed secretly and with great dispatch to deport such persons. The aim is either to preclude judicial review (as in the case of Kilmar Ábrego García) or to frustrate it by secretly seizing people and whisking them off to Trump-friendly jurisdictions. In those instances in which the government loses in a federal district court, the plan is to seek emergency review in the Supreme Court and argue that such decisions are left largely, or solely, to the prerogative of the executive branch.
Irreparable damage:Ignore the law, breach it with reckless abandon. Here, the idea is to completely destroy the targeted party in such a way that judicial relief will never be able to make such parties whole again. There is no better example of this than the outrageous facts in Pippenger v. United States DOGE Service, et al. (U.S. Dist.. Ct., D.C. Case No. 1:25-cv-01090). Pursuant to an executive order, on March 17, DOGE engaged “in the literal trespass and takeover by force of the U.S. Institute for Peace’s headquarters… Once physically inside the Institute’s headquarters, DOGE personnel and others . . . plundered the offices in an effort to access and gain control of the Institute’s infrastructure, including sensitive computer systems,” which included accounts, records, files, other records, files, and emails, which may have also been destroyed. Though the Institute for Peace is an independent nonprofit corporation established by Congress in 1984, its property was seized, and its nearly 300 D.C.-based employees were fired.
The United States Institute of Peace in Washington, D.C. (JHVEPhoto / Shutterstock.com)
Among other things, what is troubling about this power grab (one that deserves wide attention in legal circles and law school classrooms) is that while the administration claims that it is only “reduc[ing] the performance of [the Institute’s] statutory functions and associated personnel to the minimum presence and function required by law,” it lacks such legal authority. Meanwhile, DOGE is trying to gift itself the Institute’s $500 million building. During a hearing on the matter, federal Judge Beryl Howell noted that even if she rules for the Institute, “that win makes no promises” on how difficult, or possible, it will be to put USIP back together. “A bull in a China shop breaks a lot of things.”
Chill, coerce, suppress, and then evade
In these instances and others, the stratagem is to coerce and suppress so as to render judicial review either impossible or ineffective. Moreover, there is the chilling effect that such actions have on anyone at odds with Trump and his confederates. Simply consider the law firms, universities, and even media outlets that have complied, either in the absence of any judicial ruling or despite it.
All of this occurs sans congressional oversight, even as that body’s constitutional powers are breached with autocratic abandon. And despite her confirmation promise, Attorney General Pam Bondi has weaponized her office to gratify the kingly dictates of her boss.
As for the federal courts, there “have been over 200 cases where judges in the United States have anonymously received pizzas from individuals, where they didn’t order that. The implicit threat there is: ‘We know where you live.’” Consider it part of a Trump-inspired stratagem.
Part of that stratagem is the Trump administration’s tactic of denying or evading, as the following exchange between Second Circuit Judge Barrington Parker and government lawyer Drew Ensign, reported by Erik Uebelacker at Courthouse News Service, reveals:
“Does the government contest that the speech in both cases was protected speech?” Parker asked.
“Your Honor, we have not taken a position on that,” Ensign replied.
“Help my thinking along, take a position,” Parker demanded.
“Your Honor, I don’t have the authority to take a position on that right now,” Ensign said.
Will the Supreme Court trump the ‘Trump card’?
And then there is the Supreme Court, which is flooded with emergency appeals from the Trump administration. While Chief Justice Roberts has tried to calm the waters with calls to end the intimidation of judges, his pleas have been ignored. Furthermore, Roberts and his colleagues face the specter that if they displease the president, their rulings might also be disregarded, either directly or indirectly.
Trump’s strategy is to free himself of any constitutional checks and balances. The frightening truth is that we are veering in that direction, and Mr. Miller’s latest threat is another bad omen, yet another “Trump card.”
Just how far this authoritarian game continues will determine the future of our constitutional democracy.
Levitsky, Way, and Ziblatt on the road to authoritarianism
How . . . can we tell whether America has crossed the line into authoritarianism? We propose a simple metric: the cost of opposing the government. In democracies, citizens are not punished for peacefully opposing those in power. They need not worry about publishing critical opinions, supporting opposition candidates or engaging in peaceful protest because they know they will not suffer retribution from the government. In fact, the idea of legitimate opposition — that all citizens have a right to criticize, organize opposition to and seek to remove the government through elections — is a foundational principle of democracy.
Robert Corn-Revere on the president punishing his enemies
Trump has made “lawfare” the official policy of his administration.
[ . . . ]
For the Trump administration, no grievance is too petty to escape outsized retribution. After the White House limited access by the Associated Press for refusing to relabel the body of water between Florida and Mexico the “Gulf of America,” federal courts ruled that this act of viewpoint-based retaliation was a violation of the First Amendment. The administration defied that order until April 15, when an AP journalist was allowed into a White House event for the first time since February.
Even this, however, seems to be short-lived. The next day, the White House announced a new media policy which would once again restrict journalists at their own discretion — a move which the Associated Press argues is an attempt to evade the court order.
‘So to Speak’ podcast: The state of cancel culture in America
The co-authors of “The Canceling of the American Mind” discuss its new paperback release and where cancel culture stands a year and a half after the book’s original publication.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency applications
Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Mahmoud v. Taylor(argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
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.
“It was nearly impossible to get anyone on camera for this story [on Trump’s attacks on lawyers and law firms], because of the fear now running through our system of justice.” — Scott Pelle, “60 Minutes” (May 4)
That observation prompted my colleague, Angel Eduardo, to caution that we are now in “uncharted and horrifying territory” — a territory governed by coerced compliance. Against that backdrop comes the latest installment of Executive Watch, authored by Professor Timothy Zick.
In the weeks and months ahead, more FAN posts will appear discussing yet other First Amendment issues related to the Trump administration, its executive orders, and related matters. If this seems excessive, it is because (as Zick and I discuss in a forthcoming scholarly article) the suppressive actions taken by this administration are unprecedented in both their breadth and depth.
Vigilance in the service of freedom is no vice, and apathy in response to despotism is no virtue.
Related
Professor Zick’s post is set out below followed by a few news items, including two new federal district court rulings involving First Amendment challenges to anti-DEI executive orders and a NYU Law School item about punishing protestors. — rklc
During his first term as president, Donald Trump signaled that he was not committed to pluralism and expressive liberty when it came to matters like patriotism, public protest, and other forms of dissent. During his second term, Trump has issued multiple executive orders that attempt to impose official orthodoxies or understandings regarding race, gender, patriotism, and other subjects.
My previous post explained how Trump has used executive orders to instigate a whole-of-government assault on free speech, and how that campaign has affected nearly every corner of American life. This post focuses on how Trump has used executive orders to try to purge concepts and ideas from public and private realms and to dictate what is orthodox when it comes to matters Americans sharply disagree on.
Many of Trump’s orders are not only viewpoint discriminatory; their expressly stated purpose is to eradicate certain ideas or ideologies and replace them with officially approved alternatives. Although they seek to impose official ideologies by striking disfavored ideas or concepts, many of the Orders utterly fail to define key concepts, including “diversity, equity, and inclusion (DEI),” “discriminatory equity ideology,” “radical gender ideology,” and “hateful ideology.”
As I explained in my previous installment, such glaring vagueness has a real chilling effect. Faced with losses of many billions in funding or revenue, or with ruinously expensive investigations or prosecutions, many have decided to capitulate or over-comply, scrubbing any potentially offending terms and concepts from trainings, lectures, websites, and other fora.
In 1943, the Supreme Court decided West Virginia State Board of Education v. Barnette, which invalidated a state law mandating that students salute the flag and recite the Pledge of Allegiance at the beginning of each school day. In an iconic and justly famous opinion, Justice Robert H. Jackson wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Trump’s use of executive orders to impose or coerce adoption of official orthodoxies or views is contrary to a foundational First Amendment principle: The government cannot dictate to Americans what ideas they can support or promote or what they believe.
President Trump’s orthodoxies
Presidents have historically used executive orders to change policies and priorities regarding a wide range of matters, from the scope of anti-discrimination laws, to matters relating to service in the military, to the protection of religious or other liberties. For example, a president might instruct executive agencies to adopt specific legal or policy positions on enforcement of anti-discrimination laws or the protection of Second Amendment rights. And, of course, presidents can engage in their own speech about these and other matters, including through executive orders.
Trump has utilized executive orders for some of these purposes, though in novel ways (and for far more trivial ones, such as dictating what kind of straw can be used in federal buildings). But many of his orders do not merely change enforcement policies or call for agencies to regulate the actions of those who are subject to agency jurisdiction. The First Amendment “tell” in the orders is that they direct agencies to root out and censor the “promotion” of disfavored ideas or concepts.
Many of the president’s executive orders reflect his own personal frustrations and grievances, including the promotion of ideas he believes should never have been expressed, and that the federal government should now use its vast powers to suppress. Thus, a central purpose of the orders is to purge disfavored ideas and concepts from schools, companies, libraries, museums, foundations, and scientific research.
The following examples illustrate these points:
Race
An executive order describes DEI programs as “radical” and “wasteful.” It instructs agencies to coordinate the termination of “all discriminatory programs, including illegal DEI and diversity, equity, inclusion, and accessibility (DEIA) mandates, policies, programs, preferences, and activities in the federal government, under whatever name they appear.” Further, Trump ordered all federal agencies and commissions to provide the director of the Office of Management and Budget with lists of “[f]ederal contractors who have providedDEI training or DEI training materials to agency or department employees” and “[f]ederal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since Jan. 20, 2021.”
Here as elsewhere, and absent any definitional guidelines, a second order also targets DEI. It requires an office within the Department of Labor to “immediately cease . . . [p]romotingdiversity.” What’s more, the president orders federal agencies to “[e]xcise references to DEI and DEIA principles, under whatever name they may appear, from Federal acquisition, contracting, grants, and financial assistance procedures.”
“Radical DEI,” an executive order proclaims, must be replaced by “individual dignity, hard work, and excellence,” which are identified as “fundamental to American greatness.”
Promoting, advocating, or even mentioning “DEI” is also forbidden in the private sector. The president orders agencies to root out DEI and in its place “advance in the private sector the policy of individual initiative, excellence, and hard work.” To that end, the president orders agencies to identify the “most egregious and discriminatory DEI practitioners” within their jurisdictions and to propose investigations of private sector companies to investigate their use of “DEI.”
“Basing Federal policy on truth,” the order proclaims, “is critical to scientific inquiry, public safety, morale, and trust in government itself.” The order criticizes understandings of sex or gender that go beyond biology for “[i]nvalidating the true and biological category of ‘woman.’”
The president rejected “the false claim that males can identify as and thus become women and vice versa” and proclaimed the administration’s intent not to “regard this false claim as true.”
Trump decreed that “every agency and all Federal employees acting in an official capacity on behalf of their agency shall use the term ‘sex’ and not ‘gender’ in all applicable Federal policies and documents.”
The order required agency heads to “implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex,” as defined in the order. Further, it requires that “[a]gencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology.”
In a guidance document sent to all agencies, the acting director of the Office of Personnel Management instructed agency heads to review any programs that “promoteor inculcategender ideology,” place on immediate leave any employees whose job descriptions involve “inculcatingor promotinggender ideology,” remove “all outward facing media . . . that inculcate or promotegender ideology,” disable any email features that “prompt users for their pronouns,” cancel trainings and end “resource groups” that “inculcate or promotegender ideology,” and ensure that any agency forms use “sex” instead of “gender” and list only “male” or “female” as options.
In another order relating to gender, the president characterizes service in the Armed Forces by transgender individuals as a form of “radical gender ideology” that harms the military. The order declares that “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.” Further, it declares that “a man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.” The Order directs the Secretary of Defense to end all pronoun use in the U.S. Armed Forces and take steps to ban transgender individuals from entering or remaining in service.
Official views about gender and gender identity are reflected in other executive orders. For example, an order concerning federal funding for K-12 schools tasks multiple agencies with recommending ways to “rescind Federal funds, to the maximum extent consistent with applicable law” that “directly or indirectly support or subsidize the instruction, advancement, or promotion of gender ideology or discriminatory equity ideology.” Regarding federal funding, the order states “Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”
Patriotism
The executive order “Ending Radical Indoctrination in K-12 Schooling” conditions federal funding on the adoption by K-12 schools of “patriotic” curricula and threatens to withhold funding from any schools that teach that the United States is “fundamentally racist, sexist or otherwise discriminatory.”
The order defines “patriotic education” to mean “a presentation of the history of America” that is “inspiring” and “ennobling,” that emphasizes “how the United States has admirably grown closer to its noble principles, and that embraces “the concept that celebration of America’s greatness and history is proper.”
Trump’s personal conceptions of patriotism are also reflected in executive orders pertaining to immigration and deportation. One order provides that resident aliens who express “hatred for America,” “bear hostile attitudes toward [American] citizens, culture, government, institutions, or founding principles,” or “espouse hateful ideology” will be subject to deportation — a threat the administration has now made good on by deporting international students who have engaged in pro-Palestine protests and expression. The order instructs the Secretary of State and other agencies to “recommend any additional measures to be taken that promote a unified American identity and attachment to the Constitution, laws, and founding principles of the United States.”
American history
In an executive order titled “Restoring Truth and Sanity to American History,” Trump declares, “It is the policy of my administration to restore Federal sites dedicated to history, including parks and museums, to solemn and uplifting public monuments that remind Americans of our extraordinary heritage, consistent progress toward becoming a more perfect Union, and unmatched record of advancing liberty, prosperity, and human flourishing.” Without even a hint of irony, the order then states, “Museums in our Nation’s capital should be places where individuals go to learn — not to be subjected to ideologicalindoctrination or divisivenarratives that distort our shared history.”
The “Truth and Sanity” order tasks the vice president and other administration officials with “seeking to remove improper ideology from such properties.” An accompanying “Fact Sheet” boasts that the president has ordered officials “to work to eliminate improper, divisive, or anti-American ideology from the Smithsonian and its museums, education and research centers, and the National Zoo.” Further, Trump vows to remove “divisiveideology” he claims the prior administration adopted — apparently by imposing an ideology that portrays American history only in the most positive light.
Declaring (and leveraging) official ‘Truths’
As the highlighted language above shows, Trump’s executive orders could not be more transparent about their intent: to declare official “truth” and “falsity” regarding race, gender, and other matters and to punish the “promotion,” advocacy, or even references to competing ideas or ideologies. The orders call on agencies to ban or punish the “promotion” of “diversity” and “radical gender ideology,” instruction that is not “patriotic,” and speech that communicates “hostile attitudes” toward American culture or institutions. The orders declare the “truth” of biological sex and forbid the “promotion” of any other conception, while also banning pronouns and the word “gender” in federal programs. The Trump administration seeks to remove so-called “anti-American ideology” from museums.
As I explained in my previous installment, the effect of the administration’s purported “truth-declaring” on expression has been nothing short of extraordinary. Executive agencies have responded, sometimes with absurd results — including removing exhibits about Jackie Robinson, cancelling celebrations of prominent black or female figures, removing books by black authors from libraries, and scrubbing information about the “Enola Gay” from the Department of Defense website.
Similar effects have occurred outside the government. Corporations, universities, and other federal funding recipients have likewise reacted to the president’s orders by removing disfavored words or concepts from websites and other public-facing documents. Universities have cancelled presentations based on concerns that the content of lectures will run afoul of the orders, broadcast stations have been warned that their licenses may be revoked based on DEI policies, and nonprofits have been instructed to remove potentially offending words and phrases from their grant documents.
The effort to punish expression the administration dislikes or disagrees with extends beyond the areas discussed. For example, a Trump executive order targets a former official who served in his first administration for publicly declaring that the 2020 presidential election was not affected by election fraud — a position contrary to Trump’s own oft-repeated (and oft-debunked) “stolen” election narrative.
The administration has defended the orders by claiming that they merely announce new policies and target unlawfully discriminatory actions by funding grantees and others. Some even purport to preserve protection for speech that promotes or advocates what the orders define as “unlawful employment or contracting practices.” But these claims are belied by the orders themselves, which again repeatedly declare “truth” and “falsity” regarding ideas, ban “promotion” or “advocacy” of forbidden ideologies, and purport to dictate which ideas are and are not “anti-American.”
Despite their questionable validity, the orders have been exceptionally successful in terms of censoring and controlling speech. One of the principal reasons for this success is that the orders are generally vague or unclear about what is allowed and forbidden. Thus, although the concept of DEI is critical to determining whether a grantee is entitled to federal funds, none of the executive orders to date have bothered to provide any official and meaningful definition of the concept. Nor is it clear what to them constitutes “hateful ideology,” “anti-American ideology,” “unpatriotic” instruction, or other forbidden expression. To further illustrate the point, the Trump administration has been clear that it views gender as solely a biological concept; however, it has not been clear about what might constitute “radical gender ideology” or what actions will be treated as “promoting” it.
By design, such ambiguity fosters ideological suppression. As Clint Smith observed in an Atlantic article concerning the administration’s insistence that museums not display “divisive” or “anti-American ideology”:
What does it mean for something to be improper if the administration’s understanding of what is acceptable excludes anything that might make white Americans feel bad? Is the statue of Thomas Jefferson surrounded by bricks inscribed with the names of people he enslaved improper? Is a slave cabin that once sat on the grounds of a plantation in South Carolina improper? Are the shackles that were once locked around the feet of enslaved children improper? Is Harriet Tubman’s silk shawl improper? Is Nat Turner’s Bible improper? Is Emmett Till’s casket improper? Are the photographs of men and women who were lynched as white audiences looked on improper?
This kind of vagueness and uncertainty stifles legitimate speech activity. Faced with ambiguity backed by agency enforcement, many grantees will err on the side of avoiding or excising what government officials might view as “false” ideas, forbidden “promotion,” or disfavored language.
The administration has used the pronouncement of its purported “truths” and forbidden “promotion” as leverage — to threaten investigations, agency actions, and funding denials. Thus, the orders state that any grantee who engages in forbidden DEI or promotes “gender ideology” is subject to an Equal Employment Opportunity Commission investigation and substantial funding loss. Charges of engaging in DEI and promoting “radical gender ideology” have provided a pretextual basis for governmental investigations and sanctions against law firms, universities, corporations, broadcasters, and others. For the administration, the lack of clear standards allows it to declare that grantees and others are in default, hence triggering lengthy and invasive investigations. To avoid the sanctions, some targeted entities and individuals have simply folded. The administration has similarly relied on vague definitions or standards regarding so-called “anti-Semitism” to intimidate and coerce universities into “settling” unproven claims.
The undemocratic benefits of vagueness
Thus far, the administration’s lack of clarity has worked in its favor. Given the ambiguity, it can be difficult to demonstrate that the government’s funding decisions are based on disagreement with viewpoints as opposed to responses to what it considers discriminatory practices or shifting policy positions.
Trump’s reliance on vague directives and implicit threats requires that courts treat “jawboning” and other informal means of coercion as just as problematic as more direct forms of suppression. The Supreme Court held in a recent decision that New York officials could not coerce financial institutions to cease dealings with the National Rifle Association. Likewise, the Trump administration is allowed to seek to persuade funding grantees and the Nation that its conceptions of race, gender, patriotism, and history are “true.” But it cannot coerce grantees to accept those “truths” through sanction or suppression of speech.
However this issue is resolved in courts, we should be aware that much of the damage has already been done. As Justice Jackson explained in Barnette, coercing individuals and institutions to accept official orthodoxies “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” More ominously, Jackson warned, allowing officials to dictate what is “true” or “false” in the field of contested ideas leads only to “the unanimity of the graveyard.”
Elections have consequences . . . but imposing orthodoxies cannot be one of them
Governments are entitled to communicate their views about race, gender, patriotism, and other subjects. Further, no one has a legal or constitutional right to federal funding. However, if the government is going to make federal funding available, it cannot deny or remove it based on a grantee’s promotion or advocacy of disfavored ideas or concepts. It cannot punish instructors for teaching or discussing DEI, scientists for conducting research focused on “diverse” or “disadvantaged” patient populations, or museums for communicating “divisive” viewpoints about American culture and history.
One of the key tenets of our First Amendment freedoms is that sometimes minority rights must trump majoritarian will. This is especially true when certain viewpoints are protected while others are prosecuted. By that measure, compelled orthodoxy is an affront to those free speech principles that distinguish our Madisonian democracy from other regimes that give lip service, if that, to such worthy principles.
Court denies First Amendment challenge in anti-DEI case
Plaintiffs are three nonprofit organizations that incorporate DEI into their work. They also contract with and receive funding from several federal agencies. Concerned that President Trump’s executive orders will prevent them from fulfilling their organizational missions, Plaintiffs sued to enjoin a host of agencies and officials from enforcing the orders. They moved for a preliminary injunction over a week later, arguing that eight provisions of the orders are unconstitutional under the First or Fifth Amendment — or both. More specifically, Plaintiffs contend that the challenged provisions are impermissibly vague, chill protected speech, and amount to unlawful viewpoint discrimination.
But Plaintiffs have not shown that they are likely to succeed on any of those claims, so the extraordinary relief of a preliminary injunction is unwarranted. For half the challenged provisions, Plaintiffs fail to establish a prerequisite to success on the merits: standing. Presidential directives to subordinates that inflict no concrete harm on private parties — or at least not on these parties — do not present a justiciable case or controversy. And for the remaining provisions, Plaintiffs’ constitutional claims falter for various reasons. Two throughlines explain most of them. The government need not subsidize the exercise of constitutional rights to avoid infringing them, and the Constitution does not provide a right to violate federal antidiscrimination law. And those pressure points are even harder to overcome for Plaintiffs, who bring facial rather than as-applied challenges.
Preliminary injunction remains in force in challenge to anti-DEI order
This Court remains of the view that Plaintiffs have shown a strong likelihood of success on the merits of their facial free speech and vagueness claims, as this Court previously explained. . . . The Challenged Provisions forbid government contractors and grantees from engaging in “equity-related” work and from “promoting DEI” in ways the administration may consider to violate antidiscrimination laws; they demand that the “private sector” “end . . . DEI” and threaten “strategic enforcement” to effectuate the “end[ing]” of “DEI”; and they threaten contractors and grantees with enforcement actions with the explicit purpose of ‘deter[ring]’ such ‘programs or principles.’ . . . This Court remains deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment. And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.
Historically, the metaphor used to describe the effect of laws that restrict speech is “chill.” The more apt metaphor here is “extinguish.” Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate — to silence selected viewpoints, selected discourse — on matters of public concern. They forbid government contractors and grantees from engaging in discourse — including speech such as teaching, conferences, writing, speaking, etc. — if that discourse is “related” to “equity.” And they direct the “private sector” to “end” diversity, to “end” equity, and to “end” inclusion. See J21 Order § 4(b) (directing agencies to “encourage the private sector to end . . . DEI”). “End” is not a mere “chill.” “Deter[rence]” is not a side-effect of the Challenged Provisions; their explicit goal is to “deter” not only “programs” but “principles” — i.e. ideas, concepts, values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.
The government has apparently concluded, and takes the position, that particular employment practices, for example related to hiring or promotion, constitute discrimination in ways that violate Title VI or Title VII. But the Challenged Provisions do far, far more than announce a change in enforcement priorities within the bounds of existing law. For as vague as the Challenged Provisions are about some matters, see ECF No. 44 at 36-44, 53-55, there can be no serious question that the direct and necessary impact of those provisions — and purposeful, to the extent that matters — is to extinguish discourse throughout civil society on what makes our society diverse, the different perspectives we each bring to bear based our respective upbringing, family history, community, economic circumstances, race, national origin, gender, ability, sexual orientation, or the like. These executive directives seek to extinguish discourse about our shared history. They seek to extinguish discourse about how to strive toward greater inclusivity, or even what that means, or whether that is a worthy goal.
[ . . . ]
Upon consideration of the motion to vacate the preliminary injunction, ECF No. 77, and the response and reply thereto, and after oral argument on April 10, 2025, and for the reasons provided above, it is ORDERED that the motion is DENIED.
NYU Law School saga — right to take exams and lawfully protest reinstated
Pro-Palestine law students at New York University have secured a major victory against the university administration’s attempts to silence protests. On May 4, the NYU administration confirmed that 31 law students who had been barred from campus and prohibited from sitting for final exams, unless they sign away their right to protest, are now permitted to take their exams.
“This type of public pressure, the backlash that [the administration] got from not allowing students to sit for exams, was not something that they expected,” said one of the affected NYU law students, who spoke to Peoples Dispatch about this latest decision.
The NYU administration had sent a message out to 31 law students, barring them from campus including to take exams, unless they signed a “Use of Space Agreement” which included the language “you may not participate in any protest activity or disruptive activity on Law School property.” The law students who received the message are accused of participating in peaceful sit-in protests on March 4 and April 29, at NYU’s library and outside the office of the dean of the law school.
These student activists have pointed out that this is a form of protest permitted by the school’s own outlined policies. NYU’s Guidance and Expectations on Student Conduct explicitly states that “peacefully protesting on University property” is a type of “permitted” protest.
Tinker-type case distributed for conference nine times
The case is L.M. v. Town of Middleborough. The issue raised in the case is whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
The case has been on the docket since early October of last year. Since then it has been distributed for conference eight times between Dec. 6, 2024 and May 2, 2025. Eighteen states have filed an amicus brief in support of the petitioner.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland(9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency Applications
Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re: “false statements”)
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.
“Under my watch, the partisan weaponization of the Department of Justice will end. America must have one tier of justice for all.” — Pamela Bondi (confirmation hearing for U.S. attorney general, Jan. 15, 2025)
“After years and years of illegal and unconstitutional federal efforts to restrict free expression, I will also sign an executive order to immediately stop all government censorship and bring back free speech to America.” — Donald J. Trump (Jan. 20, 2025, inaugural address)
“Government censorship of speech is intolerable in a free society.” — Donald J. Trump (Jan. 20, 2025, executive order)
So many lies, so many orders, so much suppression. The “flood” of free expression abridgments continues to be dizzying and depressing.
Unprecedented! That is the word for this new form of silencing that is spreading like a deadly cancer.
The rules of the past cease to be honored. Retribution has replaced righteousness. Fear triumphs over courage. A one-party-led Congress has abdicated its authority. Judicial review is derided. And our system of justice as constituted is unable to adequately address the wrongs perpetuated by an authoritarian figure aided by his confederates. A blitzkrieg takeover of the federal government seeks to vest unchecked power in the Executive while normalizing suppression on the vile pretense of advancing free speech and equality — a page right out of Orwell’s “1984.”
In some respects, we are witnessing what constitutes a threat perhaps as great as the Sedition Act of 1798, the Civil War actions taken by Lincoln, and the World War I, Cold War, and Vietnam War abridgments of free speech. Nonetheless, the number and frequency of such abridgments make it difficult to comprehend the cumulative gravity of this threat to our First Amendment freedoms.
Within the Trump administration’s first 100 days, the government has ushered in a new era of direct and indirect suppression of speech. Meanwhile, cases are being litigated, individuals and institutions are being silenced, books banned, “settlements” coerced, scientific research squelched, history erased, while lower court rulings struggle to be relevant. And all of this, in its many forms, has occurred in the absence of any near-final resolution by the Supreme Court, as if that too might be slighted someday soon.
We are beyond any “there are evils on both sides” mentality, much as we were beyond it in 1798. Recall that while John Adams, the lawyer, championed free speech in his writings, he later backed the Alien and Sedition Acts as “the Federalist” president.
Calling out tyranny is not partisan; it is American! And yet, many are relatively detached, silent, and clueless.
Trump’s “flood the zone” tactics have taxed the American mind to such an extent that few can barely, if at all, remember yesterday’s free speech abridgments let alone those of last week or last month. The result: who remembers all of the trees leveled not to mention any big picture of the forest devastated in the process? What to do?
Enter “First Amendment Watch” and the Zick Resource Report
Thanks to Professor Stephen Solomon and Susanna Granieri over at First Amendment Watch (FAW), there is a meaningful way to begin to get a conceptual hold on what has occurred within the first 100 days of the Trump administration and its attacks on free speech.
Happily, FAW today released what is surely the most important First Amendment resource documenting the numerous First Amendment abridgments committed by the Trump administration within its first 100 days. This invaluable resource was prepared by Professor Timothy Zick.
Professor Timothy Zick
Though the full resource repository is available over at FAW, its table of contents is reproduced below:
Introduction by Timothy Zick
I. First Amendment-Related Executive Orders and Memoranda
A. Freedom of Speech and Censorship B. Foreign Terrorism and National Security C. Law Firms D. Retribution Against Former Government Officials E. Diversity, Equity, and Inclusion F. Gender and Gender Identity G. K-12 Education H. Museums, Libraries, and Public Broadcasting I. Political Donations J. University Accreditors
II. First Amendment-Related Litigation
A. Lawsuits Challenging Executive Orders, Guidance, and Policies
1. Diversity, Equity and Inclusion 2. Immigration 3. Educational Funding 4. Law Firms 5. Gender and Gender Identity 6. Data and Scientific Inquiry 7. Libraries and Museums 8. Public Broadcasting
B. Retaliatory Dismissal and Other Employment Lawsuits C. Lawsuits Filed by Media and Journalists D. Defamation and Other Civil Lawsuits Filed By Donald Trump
III. Commentary and Analysis
A. Actions Against the Press and Journalists B. Defamation and Other Civil Lawsuits C. Broadcast Media D. Social Media E. Education
1. DEI Programming and Initiatives 2. Antisemitism Investigations and Demands 3. Academic Freedom 4. K-12 Curriculum
F. Immigration Enforcement
1. International Students 2. Foreign Scholars 3. Immigration Activism
G.Public Employees H. Private Sector
1. Law Firms 2. Individual Critics and Enemies
I. Transparency, Data, and Information
1. Data, Information, and Scientific Research 2. Museums and Libraries 3. Public Broadcasting 4. Misinformation and Disinformation 5. “DOGE” and Transparency
J. Grants and Funding K. Protests and Demonstrations
1. Campus Protests 2. Public Protests
L. Governmental Orthodoxy
1. Race and DEI 2. Gender and Gender Identity 3. History and Patriotism
M. Retribution and Chilling Speech N. Investigations O. The Bigger Picture P. Tracking All Trump 2.0 Lawsuit
Related
Coming Next Week
The next installment of Professor Timothy Zick’s ongoing posts is titled “Executive Orders and Official Orthodoxies.”
Justice Department to go after reporters’ records in government leak cases
Senate Judiciary Committee considers the nomination of Pamela Bondi for Attorney General on Jan. 15, 2025. (Maxim Elramsisy / Shutterstock.com)
The Justice Department is cracking down on leaks of information to the news media, with Attorney General Pam Bondi saying prosecutors will once again have authority to use subpoenas, court orders and search warrants to hunt for government officials who make “unauthorized disclosures” to journalists.
New regulations announced by Bondi in a memo to the staff obtained by The Associated Press on Friday rescind a Biden administration policy that protected journalists from having their phone records secretly seized during leak investigations — a practice long decried by news organizations and press freedom groups.
The new regulations assert that news organizations must respond to subpoenas “when authorized at the appropriate level of the Department of Justice” and also allow for prosecutors to use court orders and search warrants to “compel production of information and testimony by and relating to the news media.”
The memo says members of the press are “presumptively entitled to advance notice of such investigative activities,” and subpoenas are to be “narrowly drawn.” Warrants must also include “protocols designed to limit the scope of intrusion into potentially protected materials or newsgathering activities,” the memo states.
Former FCC Chairs attack FCC’s attack on First Amendment principles
(T. Schneider / Shutterstock.com)
As former chairmen of the Federal Communications Commission (FCC) — one appointed by a Democrat, the other by a Republican — we have seen firsthand how the agency operates when it is guided by its mission to uphold the public interest. But in just over two months, President Donald Trump and his handpicked FCC Chair Brendan Carr have upended 90 years of precedent and congressional mandates to transform the agency into a blatantly partisan tool. Instead of acting as an independent regulator, the agency is being weaponized for political retribution under the guise of protecting the First Amendment.
Their actions fall into two categories. First, the president used executive orders (EOs) to strip the agency of its independence, making it subservient to the White House. Second, the chairman has exploited the commission’s powers to undermine the very First Amendment rights it is supposed to uphold.
Mchangama on the ‘New McCarthyism’
Jacob Mchangama
Despite being Danish, I’ve always found America’s civil-libertarian free speech tradition more appealing than the Old World’s model, with its vague terms and conditions. For much of my career, I’ve been evangelizing a First Amendment approach to free speech to skeptical Europeans and doubtful Americans, who are often tempted by laws banning “hate speech,” “extremism,” and “disinformation.” That appreciation for the First Amendment is something I share with many foreigners — Germans, Iranians, Russians — who now call America home.
[ . . . ]
It’s now clear that the government is targeting noncitizens for ideas and speech protected by the First Amendment. The most worrying example (so far) is a Turkish student at Tufts University, apparently targeted for co-authoring a student op-ed calling for, among other things, Tufts to divest from companies with ties to Israel. One report estimates that nearly 300 students from universities across the country have had their visas revoked so far.
Instead of correcting this overreach, the government has doubled down. U.S. Citizenship and Immigration Services recently announced that it would begin screening the social media posts of aliens “whose posts indicate support for antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity.” Shortly after, the X account of USCIS posted about a “robust social media vetting program” and warned: “EVERYONE should be on notice. If you’re a guest in our country — act like it.” And four days later, White House homeland security adviser Stephen Miller promised to deport “anyone who preaches hate for America.” What that means is anybody’s guess — and seems to depend entirely on subjective assessments.
[ . . . ]
Had America been known for deporting, rather than welcoming, dissent, I would never have made it my home. That might not have been much of a loss. But consider this: 35 percent of U.S.-affiliated academic Nobel laureates are immigrants, and nearly half of all American unicorn startups have founders born outside the country. How many of these brilliant minds would have chosen the United States if they risked exile for crossing the speech red lines of the moment?
As a European who owes my freedom in life thus far to the America that fought Nazism and defeated communism, I feel a responsibility to speak out when this country strays from its founding ideals. I came to America for its freedom, not just to enjoy it, but to defend it — even if that puts me at risk.
Related
New scholarly article on commencement speaker provocateurs
This Article explores an untheorized area of First Amendment doctrine: students’ graduation speeches at public universities or private universities that embrace free speech principles, either by state statute, state constitutional law, or internal policy. Responding to recent graduation speech controversies, it develops a two-tier theory that reconciles a multiplicity of values, including students’ expressive interests, universities’ institutional interests in curating commencement ceremonies and preventing reputational damage, and the interests of captive audiences in avoiding speech they deem offensive or profane.
The Article challenges the prevailing view that university students’ graduation speeches implicate individual First Amendment rights. It develops a site-specific understanding of the ritualistic sociology of the university commencement speech, which the Article argues is firmly within the managerial purview of the university. But it also argues that heavy-handed administrative regulation of student graduation speeches has the potential to undermine the academic freedom of students and professors.
Reflecting on the history of the university commencement speech in the American intellectual tradition, it urges university administrators to exercise their authority to regulate speeches through transparent standards, a longitudinal view, and collaborative negotiation with student speakers.
It concludes by discussing the conceptual dangers of turning the First Amendment into a metonym for every instance of speech abridgment within a managerial sphere.
‘So to Speak’ podcast: Rabban and Chemerinsky on academic freedom
Our guests today signed onto a statement by a group of 18 law professors who opposed the Trump administration’s funding threats at Columbia on free speech and academic freedom grounds.
Since then, Northwestern, Cornell, Princeton, Harvard, and nearly 60 other colleges and universities are under investigation with their funding hanging in the balance, allegedly for violations of civil rights law.
To help us understand the funding threats, Harvard’s recent lawsuit against the federal government, and where universities go from here are:
David Rabban — distinguished teaching professor at The University of Texas at Austin School of Law
Erwin Chemerinsky — distinguished professor of law and dean at UC Berkeley Law.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency Applications
Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
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.
“Look, I get it. It doesn’t matter who he is at a private dinner with a comedian. It matters who he is on the world stage. I’m just taking it as a positive that this person exists.” – Bill Maher, recounting his dinner with President Trump, HBO
“I knew I couldn’t change his views, but we need to talk to the other side — even if it has invaded and annexed other countries and committed unspeakable crimes against humanity.” – Larry David, “My Dinner with Adolf,” The New York Times
By and large, I have long appreciated Bill Maher’s “Real Time” comic stings. Just the sort of thing that social comedy should do. In 2002, we shared a stage as recipients of a Hugh Hefner First Amendment Award. It was an honor, even though I found him rather full of himself.
That said, after watching my fill of Rachel Maddow and others, I take escapist pleasure in watching Bill slay any variety of righteous types with his comic axe. That is, until I watched the April 11 episode of “Real Time,” the one where he joked about his dinner at the White House with President Trump.
While Maher did note Trump’s attacks on him, and his counter-attacks on Trump, he did so in a way that made Trump seem like little more than a nice guy with different views. Maher normalized the man who time and again has attacked First Amendment values with authoritarian abandon — the very values Maher champions.
Ah, Bill’s dinner with Donald was so delightfully memorable: Donald was “gracious and measured.” And catch this: he’s no “crazy person,” said Maher, though he “plays a crazy person on TV.” Moreover, he’s “much more self-aware than he lets on.” He’s “just not as fucked up as I thought [he] was.”
Oh, the private Donald was so tolerant, so engaging, so rational, and so open to hearing the other side. Ya just got to get to know the guy, break bread with him, warts and all. Hell (and that’s the word), in person he is actually “measured,” even if he presents a real threat to constitutional democracy and a clear and present danger to almost every value of First Amendment law.
The folks at “Fox And Friends” loved the Maher/Trump “Kumbaya” moment, though they did not buy Maher’s private/public distinction regarding Trump’s personality. Hardly. For them, what Maher portrayed was the real Trump: “What Bill Maher saw was what the American public as a whole has come to see. . . He’s not pretending to be something he isn’t. And that’s what stood out.”
All of it made me want to puke!
“You know,” I said to my wife Susan, “I wonder what he’d say if he met Hitler and found him to be ‘gracious.’”
Cut to Tuesday morning: It’s early, and Susan says, “You gotta read this Larry David piece in the Times. It’s titled ‘My Dinner With Adolf.’ It tracks what Maher said about Trump while mocking Maher every inch of the way.”
Ok, match on!
Just as sometimes one must “fight fire with fire,” so too sometimes one must fight “comedy with comedy.” Enter Larry David. Here’s how his satiric response to Maher’s dinner with Trump opens:
Imagine my surprise when in the spring of 1939 a letter arrived at my house inviting me to dinner at the Old Chancellery with the world’s most reviled man, Adolf Hitler. I had been a vocal critic of his on the radio from the beginning, pretty much predicting everything he was going to do on the road to dictatorship. No one I knew encouraged me to go. “He’s Hitler. He’s a monster.” But eventually I concluded that hate gets us nowhere. I knew I couldn’t change his views, but we need to talk to the other side — even if it has invaded and annexed other countries and committed unspeakable crimes against humanity.
Larry David at the induction ceremony for Mary Steenburgen into the Hollywood Walk of Fame (Shutterstock.com)
And here’s how David ends his deliciously jeering counter to Maher:
Two hours later, the dinner was over, and the Führer escorted me to the door. “I am so glad to have met you. I hope I’m no longer the monster you thought I was.” “I must say, mein Führer, I’m so thankful I came. Although we disagree on many issues, it doesn’t mean that we have to hate each other.” And with that, I gave him a Nazi salute and walked out into the night.
Note to Bill: You gotta curb your enthusiasm for your “gracious” and “measured” friend. Tyranny isn’t funny, it’s evil!
Hold on! Maher got worse when Banon arrived:
Awful as his naïve Trump dinner fiasco was, I was nonetheless eager to hear Maher’s interview with Steve Bannon thereafter. When he wasn’t joking around, the good news was that Bill asked tough questions. The bad news was that, save for an opening exchange about Trump’s third-term aspirations, Maher really didn’t press Bannon every time he responded with an evasive answer. He just let it sit there and moved on to another tough question followed by more evasive answers . . . followed by “bro bonding.”
Really Bill! What the fuck happened to your strong sting, bro? You were more like a soft butterfly.
Remember:
‘60 Minutes’ producer quits over journalistic independence
Bill Owens
CBS News entered a new period of turmoil on Tuesday after the executive producer of “60 Minutes,” Bill Owens, said that he would resign from the long-running Sunday news program, citing encroachments on his journalistic independence.
In an extraordinary declaration, Mr. Owens — only the third person to run the program in its 57-year history — told his staff in a memo that “over the past months, it has become clear that I would not be allowed to run the show as I have always run it, to make independent decisions based on what was right for ‘60 Minutes,’ right for the audience.”
“So, having defended this show — and what we stand for — from every angle, over time with everything I could, I am stepping aside so the show can move forward,” he wrote in the memo, which was obtained by The New York Times.
‘60 Minutes’ has faced mounting pressure in recent months from both President Trump, who sued CBS for $10 billion and has accused the program of “unlawful and illegal behavior,” and its own corporate ownership at Paramount, the parent company of CBS News.
Paramount’s controlling shareholder, Shari Redstone, is eager to secure the Trump administration’s approval for a multibillion-dollar sale of her company to Skydance, a company run by the son of the tech billionaire Larry Ellison.”
Comments offered to FAN by Floyd Abrams and Ira Glasser
“It is deeply troubling that Bill Owens, whose leadership of ‘60 Minutes’ as its executive producer has been repeatedly honored through the years, has been obliged to resign because of pressure from the Trump Administration and ABC’s new corporate owner. It is a blow to independent journalism and a great loss to the American public.” — Floyd Abrams
“Unless the Supreme Court radically changes First Amendment law, Trump’s suit has no legal merit. If Paramount isn’t interested in defending CBS’ right to criticize public officials, it ought to sell CBS to someone who is, and stick to the entertainment business. What Edward R. Murrow and Walter Cronkite constructed, Shari Redstone [executive chairwoman of Paramount Global] is tearing down.” — Ira Glasser
Related
Coming Next Wednesday
Zick’s Resources Compilation of Executive Actions Affecting First Amendment Rights
Coming as soon as next Wednesday, Professor Stephen Solomon and his colleagues over at First Amendment Watch will launch Professor Timothy Zick’s invaluable Resources pages, replete with a comprehensive, topical, and hyperlinked set of references to virtually all of the Trump executive orders and related actions affecting free expression. This user-friendly and topic-specific resources page provides the most detailed and yet across-the-board account of what has happened within the last 100 days of this Administration in matters concerning the First Amendment.
Jury rules against Palin in defamation against The New York Times
The New York Times did not libel former Alaska Gov. Sarah Palin in a 2017 editorial that contained an error she claimed had damaged her reputation, a jury concluded Tuesday. Former Alaska Gov. Sarah Palin campaigned for the state’s U.S. House seat in 2022 with the support of President Trump. She did not win.
The jury deliberated a little over two hours before reaching its verdict. A judge and a different jury had reached the same conclusion about Palin’s defamation claims in 2022, but her lawsuit was revived by an appeals court.
Palin was subdued as she left the courthouse and made her way to a waiting car, telling reporters: “I get to go home to a beautiful family of five kids and grandkids and a beautiful property and get on with life. And that’s nice.”
FIRE fires back in Trump pollster fraud suit
“This lawsuit is, as the Bard put it, a tale ‘full of sound and fury, signifying nothing.’”
This case is built entirely on a tissue of shopworn campaign rhetoric and fever-dream conspiracy theories, yet even accepting Plaintiffs’ wild factual assertions as true, the Complaint lacks any plausible legal theory on which to grant relief. The allegations of “fraudulent news” are an affront to basic First Amendment law, and Plaintiffs continue to butcher elementary concepts like duty, reliance, causation, and damages under Iowa law. The Court should dismiss the Amended Complaint.
Arguments
Plaintiffs’ Claim That Election Polls and the News Coverage They Generate Can Be Labelled “Fraud” Unprotected by the First Amendment is Utterly Baseless.
There is No General First Amendment Exception for False Speech.
Election Polling is Not Commercial Speech and is Fully Protected Election News Coverage.
No Case Law Supports Plaintiffs’ Theory of Liability.
Plaintiffs’ Claims are Facially Deficient Under Iowa Law
Plaintiffs Fail to Plead a Cognizable ICFA Claim.
Plaintiffs Fail to Plead a Fraudulent Misrepresentation Claim.
Plaintiffs Fail to Plead a Negligent Misrepresentation Claim.
Piercing the Corporate Veil.
Conclusion
This lawsuit is, as the Bard put it, a tale “full of sound and fury, signifying nothing.” William Shakespeare, Macbeth, Act 5, Scene 5. Once you get past the groundless assertions, campaign-style hyperbole, and overheated conspiracy theories, there is nothing left. No legal basis whatsoever supports the claims, and Plaintiffs’ opposition to the motions to dismiss reveals both shocking unfamiliarity with basic concepts of First Amendment law and a disregard of the pleading requirements for fraud or misrepresentation under Iowa law. As one court summed it up in another of President Trump’s attacks on free speech: “This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it. Intended for a political purpose, none of the counts of the amended complaint stated a cognizable legal claim.” Trump v. Clinton, 653 F.Supp.3d at 1207. The Court should dismiss this case with prejudice.
Attorneys for Defendants J. Ann Selzer, and Selzer & Company: Robert Corn-Revere, Conor T. Fitzpatrick, Greg H. Greubel, and Matthew A. McGuire
School district ordered to pay attorney fees to censored parent
Bret Nolan (Federalist Society)
A federal judge has ordered that the Sheridan County (WY) School District must pay attorneys’ fees following a lawsuit with Harry Pollak, a parent censored during a 2022 school board meeting
Following a lengthy legal dispute, the United States District Court for the District of Wyoming has awarded attorneys’ fees totaling $156,000 to the litigation team representing Harry Pollak of Sheridan County. Mr. Pollak was represented by Institute for Free Speech Senior Attorney Brett Nolan and local counsel Seth Johnson.
Mr. Pollak initially filed suit against the Sheridan County School District in March 2022 after he was cut off from speaking from speaking critically about the superintendent at a school board meeting. The board cited a policy against discussing “personnel matters” as the reason for censoring him, and it called the police to escort him out of the building.
Last fall, the district court ruled in favor of Mr. Pollak, declaring that the school board violated his First Amendment rights and awarded him nominal damages of $17.91 (a symbolic amount referring to the year the First Amendment was ratified). The court also permanently enjoined the board from enforcing its policy to prevent speakers like Mr. Pollak who want to criticize school staff by name.
[ . . . ]
To read the full fees order, Pollak v. Wilson, et al., click here.
Mchangama and Marami on deportation and dissent
The Trump administration is invoking a clause of the Immigration and Nationality Act of 1952 that allows the Secretary of State broad discretion to deport anyone he believes “would have potentially serious adverse foreign policy consequences for the United States.” As such, a recently released memo detailing the government’s case against the most prominent of the activists, Mahmoud Khalil, refrains from charging him with any crime. On Friday, a Louisiana immigration judge upheld the Government’s decision to deport Khalil. Constitutional scholars debate whether and to what extent the First Amendment protects noncitizens in such cases, and the Supreme Court may eventually weigh in.
But the question is not only constitutional — it is foundational. Is deporting foreigners for expressing disfavored views compatible with a robust commitment to a culture of free speech?
As it turns out, history has a lot to tell us about states that exclude foreigners with controversial opinions and those that welcome non-native dissenters.
[ . . . ]
From Zenger to Hitchens, from Abrams to Arendt, it has often been immigrants who tested the boundaries of the First Amendment — and in doing so, helped define its meaning. To now deport people for unpopular opinions is not merely a constitutional gray zone. It is a betrayal of the very idea that truth and progress emerge from argument, not conformity.
Silencing foreign voices won’t make America safer. It will make it smaller and less resilient. A confident, free nation doesn’t banish speech — it engages it.
The odd couple: Franks and Corn-Revere in dialogue (and debate) at Brooklyn Law School event
FIRE Chief Counsel Robert Corn-Revere (left) and Professor Mary Anne Franks
Dr. Mary Anne Franks — Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law, George Washington Law School; President and Legislative & Tech Policy Director, Cyber Civil Rights Initiative
Robert Corn-Revere — Chief Counsel, Foundation for Individual Rights and Expression (FIRE)
Moderators
William Araiza, Stanley A. August Professor of Law, Brooklyn Law School
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency Applications
Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Mahmoud v. Taylor (Free exercise case — Issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (Decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (Interpretation of 18 U. S. C. §1014 re “false statements”)
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.
All of the vile executive orders issued by the Trump administration against law firms refer to purported “significant risks” associated with them, and have the same whiff of oppression:
Below the veneer of such boilerplate claims lies a repressive truth: they’re designed to be punitive, and to produce a fear that leads to robotic subservience. They are but a part of Trump’s enemies list. And his orders are to be executed by his lackey Attorney General Pam Bondi — the same person who once said: “I will fight every day to restore confidence and integrity to the Department of Justice and each of its components. The partisanship, the weaponization will be gone.”
Mr. Sellers filed the amicus brief on behalf of 61 media organizations and press freedom advocates in the case of Perkins Coie v. U.S. Department of Justice. At the outset he exposes the real agenda of the authoritarian figure in the White House:
“The President seeks the simultaneous power to wield the legal system against those who oppose his policies or reveal his administration’s unlawful or unethical acts—who, in many cases, have been members of the press—and then deny them access to the system built to defend their rights. The President could thus ‘permit one side to have a monopoly in expressing its views,’ which is the “antithesis of constitutional guarantees.’”
Mr. Sellers reminds us that “‘freedom of the press holds an . . . exalted place in the First Amendment firmament,’ because the press plays a vital role in the maintenance of democratic governance. To fulfill that function, the press relies on the work of lawyers. Lawyers assist the press in obtaining access to records and government spaces . . . because the press plays a vital role in the maintenance of democratic governance.”
Andrew Sellars
To honor that principle, Sellers argues that “the press relies on the work of lawyers. Lawyers assist the press in obtaining access to records and government spaces. They advise the press on how to handle sensitive sources and content. And they defend the press against civil and criminal threats for their publications.”
Among other key points made in this important brief is the following one:
If the Executive Order stands, many lawyers will be chilled from taking on work so directly in conflict with the President, out of fear for the harm it would cause to their clients whose relationship with the government is more transactional. For the lawyers that remain, the threat of a similar executive order aimed at them or their law firms would practically prevent them from doing their jobs, by denying their access to the people and places necessary to adjudicate their issues.
Some of the lawyers who signed this amicus brief include Floyd Abrams, Lee Levine, Seth Berlin, Ashley Kissinger, Elizabeth Koch, Lynn B. Oberlander, David A. Schulz, and Charles Toobin.
The Table of Contents appears below:
Introduction & Summary of Argument
Interests of Amici
Argument
A Free Press Allows the Public to Check Overreaching Government but Requires Legal Support.
The Oppositional Role of the Press Will Not Function if the Court Allows This executive order.
The government will inevitably use this authoritarian power to target the press.
The executive order will chill lawyers from working with the press.
The lawyers that remain will be unable to do their jobs.
Without a Robust Press, the Public will Lose a Key Vindicator of First Amendment Rights.
Related
Pronoun punishment policy in the Trump administration
You know those email signatures at the end of messages? The ones that include a range of information about the senders — phone numbers, addresses, social media handles. And in recent years, pronouns — letting the recipient know that the sender goes by “she,” “he,” “they” or something else, a digital acknowledgement that people claim a range of gender identities.
Among those who don’t agree with that are President Donald Trump and members of his administration. They have taken aim at what he calls “gender ideology” with measures like an executive order requiring the United States to recognize only two biological sexes, male and female. Federal employees were told to take any references to their pronouns out of their email signatures.
That stance seems to have spread beyond those who work for the government to those covering it. According to some journalists’ accounts, officials in the administration have refused to engage with reporters who have pronouns listed in their signatures.
The New York Times reported that two of its journalists and one at another outlet had received responses from administration officials to email queries that declined to engage with them over the presence of the pronouns. In one case, a reporter asking about the closure of a research observatory received an email reply from Karoline Leavitt, the White House press secretary, saying, “As a matter of policy, we do not respond to reporters with pronouns in their bios.”
Dare one ask? Is pro-Palestinian speech protected?
The first target of these threats was Mahmoud Khalil, a pro-Palestinian activist and former student of Columbia University, who was a negotiator for Columbia students during talks with university officials regarding their tent encampment last spring, according to The Associated Press.
Since his arrest, more than half a dozen scholars, professors, protesters and students have had their visas revoked with threats of deportation. Two opted to leave the country on their own terms, unsure of how legal proceedings against them would play out.
Free speech and civil liberties organizations have raised concerns over the arrests, claiming the Trump administration is targeting pro-Palestinian protesters for constitutionally protected political speech because of their viewpoints.
[ . . . ]
First Amendment Watch spoke with Esha Bhandari, deputy director of the ACLU’s Speech, Privacy and Technology Project, about the First Amendment implications of the Trump administration’s alleged targeting of pro-Palestinian protesters and activists. Bhandari explained how actions taken under the Immigration and Nationality Act need to be consistent with the First Amendment, described the importance of the right to peacefully assemble, and expressed that all Americans, regardless of their viewpoint, should be concerned with the Trump administration’s actions and its chilling of speech.
[Interview follows]
David Cole on the war on the First Amendment
Just released: Oxford University Press handbook on free speech
Freedom of speech is central to the liberal democratic tradition. It touches on every aspect of our social and political system and receives explicit and implicit protection in every modern democratic constitution. It is frequently referred to in public discourse and has inspired a wealth of legal and philosophical literature. The liberty to speak freely is often questioned; what is the relationship between this freedom and other rights and values, how far does this freedom extend, and how is it applied to contemporary challenges?
“The Oxford Handbook on Freedom of Speech” seeks to answer these and other pressing questions. It provides a critical analysis of the foundations, rationales, and ideas that underpin freedom of speech as a political idea, and as a principle of positive constitutional law. In doing so, it examines freedom of speech in a variety of national and supranational settings from an international perspective.
Compiled by a team of renowned experts in the field, this handbook features original essays by leading scholars and theorists exploring the history, legal framework, and controversies surrounding this tenet of the democratic constitution.
Forthcoming book on free speech and social media platforms
Northeastern University Professor John Wihbey
Why social media platforms have a responsibility to look after their platforms, how they can achieve the transparency needed, and what they should do when harms arise.
The large, corporate global platforms networking the world’s publics now host most of the world’s information and communication. Much has been written about social media platforms, and many have argued for platform accountability, responsibility, and transparency. But relatively few works have tried to place platform dynamics and challenges in the context of history, especially with an eye toward sensibly regulating these communications technologies.
In ”Governing Babel,” John Wihbey articulates a point of view in the ongoing, high-stakes debate over social media platforms and free speech about how these companies ought to manage their tremendous power.
Wihbey takes readers on a journey into the high-pressure and controversial world of social media content moderation, looking at issues through relevant cultural, legal, historical, and global lenses. The book addresses a vast challenge — how to create new rules to deal with the ills of our communications and media systems — but the central argument it develops is relatively simple. The idea is that those who create and manage systems for communications hosting user-generated content have both a responsibility to look after their platforms and have a duty to respond to problems. They must, in effect, adopt a central response principle that allows their platforms to take reasonable action when potential harms present themselves. And finally, they should be judged, and subject to sanction, according to the good faith and persistence of their efforts.
Franks and Corn-Revere to discuss ‘Fearless Speech’
Dr. Mary Anne Franks Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law, George Washington Law School; President and Legislative & Tech Policy Director, Cyber Civil Rights Initiative
Robert Corn-Revere Chief Counsel, Foundation for Individual Rights and Expression (FIRE)
Moderators
William Araiza, Stanley A. August Professor of Law, Brooklyn Law School
Ron Collins, Co-founder of the History Book Festival and former Harold S. Shefelman Scholar, University of Washington Law School
Sarah C. Haan, Class of 1958 Uncas and Anne McThenia Professor of Law, Washington and Lee University School of Law
Lukianoff’s TED talk
FIRE President and CEO Greg Lukianoff (Photo by Gilberto Tadday / TED)
Last Wednesday, FIRE’s Greg Lukianoff delivered his first TED talk at TED 2025 in Vancouver. He spoke on why so many young people have given up on free speech and how to win them back. As he noted in a recent post for his Substack newsletter, The Eternally Radical Idea:
“After months of seemingly endless writing, rewriting, and rehearsing, I’m very happy with how it turned out! (Many thanks to Bob Ewing, Kim Hemsley, Maryrose Ewing, and Perry Fein for helping me prepare. Couldn’t have done it without them!)
We’re not yet sure when the full talk will be available online, but we’ll keep you posted!”
‘So to Speak’ podcast: The plight of global free speech
We travel from America to Europe, Russia, China, and more places to answer the question: Is there a global free speech recession?
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency applications
Yost v. Ohio Attorney General (Kavanaugh, J., “It Is Ordered that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito & Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
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.
Last week, FIRE filed a comment in the FCC’s “In re: delete, delete, delete” docket, in which the agency said it “seeks comment on every rule, regulation, or guidance document that the FCC should eliminate.” As the agency observed, this review is necessary in light of their statutory mandate to uncover and remove regulations “no longer necessary in the public interest.” FIRE’s comments remind the FCC that the Commission itself has said, “The public interest is best served by permitting free expression of views.” Therefore, in its hunt for “unnecessary regulatory burdens,” the Commission should start with its regulations on content. Such policies include discretionaryspeech-basedinvestigations and its news distortion policy, which run headlong into the First Amendment and Communications Act directives that deny the FCC the power of censorship. The FCC’s current chairman claims to base FCC decisions on “the law, the facts, and the First Amendment.” With this proceeding, it’s time to put up or shut up.
Given the Trump administration’s continued and varied assaults on the First Amendment, it is vital to monitor those attacks and then realize the gravity of the “sweeping and draconian sanctions” imposed by unconstitutional executive fiat. Vigilance is especially important, as New York Times investigative reporter Michael S. Schmidt has noted, because “Mr. Trump has employed tactics including lawsuits, executive orders, regulations, dismissals from government jobs, withdrawal of security details and public intimidation to take on a wide range of individuals and institutions he views as having unfairly pursued him or sought to block his agenda.”
Mindful of such matters, this installment of “Executive Watch” by professor Timothy Zick provides the most comprehensive and informed account of the current threats facing us up to now.
Of course, yet more posts are forthcoming. Meanwhile, it is worth heeding the sound advice recently offered by Dean Erwin Chemerinsky: “despite the risks of speaking out, silence itself comes at enormous cost.”
— rklc
My introductory post, which was published a little more than a month after Donald Trump took office for the second time, identified various areas in which his administration’s actions threatened First Amendment rights. At this point, even before the first 100 days of the second Trump administration have elapsed, we now have a much fuller picture of the nature and scope of the threat — and it’s even worse than we thought.
Media stories and commentary have covered a range of Trump administration policies and actions that threaten speech and press rights. Commentators have examined the attacks on media, law firms, government employees, and universities, among others. My last post discussed Trump’s abuse of the civil lawsuit to punish the media and others.
Considered in isolation, these actions raise troubling First Amendment concerns. But the whole threat to the First Amendment is far greater than the sum of its damaging parts. Combined, the administration’s actions represent a whole-of-government and whole-of-society effort to control whether and how Americans talk about certain ideas.
Trump 1.0 and the First Amendment
As it concerns the First Amendment, the fundamental difference between Trump 1.0 and Trump 2.0 is the extraordinary use of the levers of governmental power to suppress, dictate, and coerce viewpoints the president disfavors.
During the first administration, the threat to the First Amendment emanated primarily from the president’s own statements and threatened actions. Trump talked about “opening up” the libel laws to make it easier to sue media defendants. He waged a constant war on the press, which he referred to as “the enemy of the people.” He demanded loyalty, attacked those who disagreed with his views on patriotism and dissent, and threatened to punish media outlets by revoking their licenses. He also threatened to shut down social media platforms that fact-checked him.
Prof. Timothy Zick
During the 2016 presidential election, Trump called for de-naturalizing and jailing protesters who burned the U.S. flag. As president, he routinely denigrated protesters. During the Black Lives Matter demonstrations, Trump considered invoking the Insurrection Act to call up U.S. military personnel to quell protest-related civil unrest. He sent federal agents to Portland and other cities to police and quell protests. At one point during the demonstrations, Trump reportedly asked his then-secretary of defense why protesters couldn’t be shot. And, of course, after he lost the 2020 election he used his own speech to incite the Capitol insurrection on Jan. 6, 2021.
It was clear during his first term that Trump had little or no tolerance for dissent, and a strong desire to impose his will on the media and other institutions. However, for the most part, he either didn’t or couldn’t effectuate that agenda. Perhaps this was because members of his administration talked him out of it, or perhaps because he was not yet familiar with the levers of power.
Trump 2.0 and executive orders
Trump 2.0 has been a vastly different story. Past presidents, including Trump, have used executive orders to exercise or augment their executive powers. They have set important agendas for the executive branch of government. However, no president has ever used executive orders to attempt to control what Americans can discuss, or how they speak about concepts regarding diversity, patriotism, anti-Semitism, gender, and other matters of public concern. And no president has been as successful at extending such an agenda across not just the federal bureaucracy but nearly every aspect of society.
Thus far, President Trump has issued eighteent Executive Orders, plus several accompanying “Fact Sheets,” that implicate First Amendment rights. Although some of the Orders are vague and/or thin on specifics, many target expression based on its viewpoint – a quintessential violation of the First Amendment.
Five of the Executive Orders target law firms based on their representation of clients and advocacy for causes the President disfavors.
Three Orders prohibit universities, companies, and others receiving federal funds from maintaining “Diversity, Equity, and Inclusion” (DEI) policies and practices – including training, teaching, and supporting those ideas.
Trump’s Orders also target “anti-Semitic” speech by federal grantees and encourage universities to monitor “pro-jihadist protests” and campus “radicalism.”
An Executive Order requires that K-12 schools adopt “patriotic” curricula and further vows to withhold funding from any schools that teach that the United States is “fundamentally racist, sexist or otherwise discriminatory.”
Other Orders provide that resident aliens who express “hatred for America” or “bear hostile attitudes toward [American] citizens, culture, government, institutions, or founding principles” are subject to deportation.
Two of Trump’s Executive Orders single out transgender individuals, banning them from military service and imposing restrictions on the genders they can use on U.S. passports. These Orders raise important equal protection concerns, but also bar individuals from communicating about their own gender identity.
Finally, the Administration’s cost-cutting and desire to control the flow of information have deeply affected the availability and distribution of information in the United States. Trump has ordered the disbanding of Voice of America and Radio Free Europe, important outlets for furthering American interests abroad. Trump’s spending cuts have also decimated libraries, which are critical distributors of information. Trump recently issued an Executive Order that purports to remove “anti-American ideology” from the Smithsonian Museum.
TRUMP’S FIRST 80 DAYS Executive orders affecting free speech and press: 18 Federal agencies involved in enforcement: 20 Lawsuits raising First Amendment challenges: 30
The whole-of-government campaign
Standing alone, Trump’s executive orders represent a serious threat to the First Amendment. But the orders are backed by agency enforcement powers that drastically expand the danger.
Think of the executive orders as a general blueprint for an ideological and retributive campaign aimed at punishing enemies for speech, imposing governmental orthodoxy regarding race, gender, and other matters, and controlling the distribution of information. That blueprint is being enforced by all federal agencies under the president’s command. So far, that includes some twenty separate agencies, including:
Agencies across government are involved in enforcing Trump’s executive orders in areas ranging from private business to immigration. Ironically, the president’s ability to control and punish expression is due, in large part, to the size of the federal government he has targeted for downsizing or eradication.
The whole-of-society impact of the executive orders
Trump’s executive orders bind all federal agencies under his command. Agencies across regulatory areas have moved swiftly to scrub websites of offensive DEI language. Their efforts to comply with Trump’s directive have at times been comical. The Defense Department apparently removed material about the Enola Gay, the aircraft that dropped the atomic bomb on Hiroshima, because of its name. Agencies have also removed information about Jackie Robinson and other material that celebrates the accomplishments of black people and women. Taking a “chainsaw” approach to language in public-facing websites, agencies have removed information that does not comport with the president’s preferred terms and viewpoints.
“In a pre-election poll, respondents ranked ‘free speech’ among the top issues that were ‘very important’ in influencing their vote for president.”
FIRE/NORC poll of 1,022 Americans conducted Oct. 11-14, 2024
The federal government is an important source of information for issues relating to public health, the armed forces, employment, and other matters. Governments can determine what messages they want to communicate, including on websites they control, but those efforts can have harmful effects on the distribution of information to the public.
Trump’s orders have also limited the availability of information, both at home and abroad. They have silenced the nation’s voice in international spheres, cut off aid to libraries, and even demanded that museums change exhibits that convey “anti-American ideology.” Again, no president has ever used executive orders to so comprehensively control what can be seen, heard, or viewed.
Trump’s executive orders have also affected millions of individuals, entities, and institutions beyond federal agencies. Indeed, it is hard to overstate the breadth and depth of the activities covered by the existing executive orders — and they continue to be issued almost daily. The orders have already extended into every boardroom, classroom, breakroom, and laboratory in the United States. Businesses have shut down activities recognizing the value of a diverse workforce. Universities have scrubbed websites and materials of any references to the values of diversity in education. Legal counsel at some hospitals have even warned staff not to use “triggering” words like “vulnerable” or “diverse” to describe patients.
How Trump has expanded his power over expression
Four things account for the extraordinary scope and effect of the Trump administration’s campaign to control what Americans see, hear, and say regarding gender, race, and American history.
First, in contrast to Trump 1.0, the president has relied more extensively on executive orders as a means of governing. Trump’s more than 100 executive orders cover everything from the types of straws that can be used in federal buildings, the legitimate causes law firms can pursue, and the content of displays at the Smithsonian Museum.
“There . . . can be no question that the demands the administration is making of Harvard are intended to suppress protected expression, of various kinds. To avoid the loss of federal funds, Harvard will have to refrain from advocating for, or empowering others to advocate for, the viewpoint that diversity, equality, and inclusion are important educational and social values. It will have to change how it oversees faculty research and teaching, and what kinds of scholarly viewpoints it hires and promotes. And it will have to suppress student speech and association, including core political expression, more severely than it has chosen to do so far—or at least it will have to promise to do so.”
Second, the orders use the threat of lost federal funding as an enforcement mechanism. Federal funding touches nearly every aspect of American life. That includes education at all levels, health care, immigration, the practice of law, scientific research, and even farming.
Third, because the executive orders lack any meaningful specificity about concepts and ideas it targets, including “DEI” and “anti-Semitism,” no federal grantee can be sure which words, phrases, or ideas will result in a denial of critical funding. This lack of clarity has produced significant uncertainty at universities, hospitals, businesses, and other funding recipients. And that uncertainty has led to anticipatory compliance on a scale that federal anti-discrimination and other laws do not require.
Fourth, the administration has not provided the process required by federal law to deny or remove federal funding. This enhances the chill of agency enforcement by speeding up the denial of funds, leaving grantees with little recourse to contest allegations or charges prior to loss of funding.
Fifth, for many of the above reasons, the Orders have engendered a repressive fear in federal fund recipients — a fear, as Ronald Collins points out, that is “born of direct or veiled demands for loyalty” and the specter of punishment for dissent. Thus, words and phrases must be removed, lectures canceled, and “deals” inked that trade away law firms’ First Amendment rights for relief from facially retributive and unconstitutional Executive Orders.
To be sure, some will challenge these executive orders on First Amendment grounds. Indeed, nearly 30 lawsuits raising First Amendment claims have already been filed. But many more grantees will decide, as Columbia University and the Paul Weiss law firm recently have, to negotiate a settlement or comply with unlawful orders. Many others will comply in advance, lest they remain targets of the president’s ire and risk their funding and livelihoods.
This underscores just how widespread the effects on First Amendment rights and principles will turn out to be. By virtue of their breadth, vagueness, and procedural violations, Trump’s executive orders and threats of agency enforcement will produce far more suppression of speech than normal agency action — which is limited by, among other things, resource considerations and legal process requirements. Although lawsuits are an important check, the chilling and suppressive effects of the Trump administration’s campaign are much broader and deeper than courts alone can address or resolve.
The daily chaos of Trump 2.0 can readily distract us from the fuller picture in terms of threats to free speech. As Professor Stephen Vladeck has correctly observed, “it seems that chaos and disruption are themselves central to President Trump’s objective.” However courts ultimately rule after tiresome and delayed litigation, much damage will already be done, some of it even irreversible.
Make no mistake: What we have seen in the early days of Trump 2.0 is an unprecedented government-wide and society-wide broadside against fundamental First Amendment commitments. And there is no indication that the Trump administration’s campaign is going to end any time soon.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Free speech related
Thompson v. United States (decided: 3-21-25/ 9-0 with special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
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.
“Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.” — Benjamin Franklin
If you look beneath the veneer of it all, what surfaces from the chaos of the last eight weeks is a demand for unyielding loyalty to a man and his personal and political whims.
His demands, followed in fear, are cravenly honored by political figures, media corporations, university presidents, law firms, Justice Department lawyers, and all others who surrender on bended knee to an authoritarian figure who holds the title of the 47th president of the United States.
Few stand up to him; many kowtow to him. Silence and sycophancy surround him. Meanwhile, his agency hitman exercises power with unconstitutional zeal.
When persuasion fails, when logic departs, when toleration ceases to be tolerated, and when the very pillars of freedom of expression are battered with ruinous consistency, then the promise of the First Amendment is breached with abandon — this while so many fiddle.
Given what has gone on in the first quarter of 2025 alone, this much is true: We are witnessing frontal attacks on freedom, especially our First Amendment freedoms (e.g., FANs 463, 462, 461, and 460).
Government by executive order is his calling card — his “trump” card. Shakedowns are his tactic. “Administrative error” is the justification given by his confederates for egregious due process violations.
No matter how personal, punitive, or partisan, this power (often unconstitutional in principle and authoritarian in practice) has become this administration’s default position. His will is effected by his lieutenants, implemented by his attorney general, executed by his DOGE goons, fulfilled by his FBI director and other cabinet officials, orchestrated by his deputy of policy, and defended by his press secretary.
In such ways, as professor Timothy Zick’s “Executive Watch” posts have revealed and will continue to reveal, the First Amendment is also under siege.
Fear is the engine that drives so much of this aggrandizement of power, and the submission to it. As in the McCarthy era, robotic loyalty fuels that engine. What we are seeing in Washington is a new era in compelled allegiance. Executive order “negotiations” are premised on mandatory loyalty.
To get a sense of the nature of this problem, simply consider some of what Thomas I. Emerson (a revered civil liberties and free speech scholar) wrote 55 years ago in his seminal “The System of Freedom of Expression.” When liberty is contingent on one’s “beliefs, opinions, or associations,” there is a “grossly inhibiting effect upon the free exercise of expression.”
The inevitable result, Emerson added, is to silence “the more conscientious and invite the less scrupulous to pass. ‘Self-executing’ by its nature, it places the burden upon the person…to interpret [the loyalty oaths’] purpose, recall all past events in his life, and decide what current or future [orders might affect him] at his peril.” The net effect is to leave citizens “at the continuing mercy” of the government.
Put bluntly: “It is inherently demeaning to a free people.” (emphasis added)
It is that fear, born of direct or veiled demands for loyalty, that has seized power in the control rooms of our government. Time and again, day in and day out, yet another executive order, followed by servile enforcement, abridges our First Amendment freedoms. When will it end? When will enough men and women of courage join together and say “enough”? One answer was tendered in 1776 in a work titled “The American Crisis.” To quote its author, Thomas Paine:
These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman.
Related
To preserve America’s tradition as a home for fearless writing, the Foundation for Individual Rights and Expression and Substack are partnering to support writers residing lawfully in this country targeted by the government for the content of their writing — those who, as Hitchens once put it, “committed no crime except that of thought in writing.”
Voice of America court victory in journalists’ firing case
The Voice of America can’t be silenced just yet. A federal judge on March 28 halted the Trump administration’s efforts to dismantle the eight-decade-old U.S. government-funded international news service, calling the move a “classic case of arbitrary and capricious decision making.”
Judge James Paul Oetken blocked the U.S. Agency for Global Media, which runs Voice of America, from firing more than 1,200 journalists, engineers and other staff that it sidelined two weeks ago in the wake of President Donald Trump’s ordering its funding slashed.
Seth Stern on DOGE and related free speech issues
First Amendment Watch spoke with director of advocacy at Freedom of the Press Foundation, Seth Stern, about the First Amendment issues baked into the online exchange. Stern described Martin’s letter as intentionally ambiguous, argued that confusion over DOGE as a quasi-government agency brings its transparency responsibilities into question, and described the free speech issues that may arise from Musk’s roles as a social media platform owner and advisor to the president.
Yale Law School ‘Free Speech in Crisis’ conference
Agenda
Friday, March 28
9:15 a.m. | Welcome/Opening Remarks
Organizers: Jack Balkin, Genevieve Lakier, Mikey McGovern
9:30 a.m. | Panel 1: Media Environment
Chair: Paul Starr, Princeton University
Yochai Benkler, Harvard Law School
Mary Anne Franks, George Washington University School of Law
Eugene Volokh, Hoover Institution
11:15 a.m. | Panel 2: Polarization
Chair: Robert Post, Yale Law School
Nicole Hemmer, Vanderbilt University
Liliana Mason, SNF Agora Institute, Johns Hopkins University
Ganesh Sitaraman, Vanderbilt Law School
2:15 p.m. | Panel 3: Political Marketplace
Chair: Rick Hasen, University of California, Los Angeles School of Law
Rick Pildes, NYU Law School
Bradley A. Smith, Capital University Law School
Ann Southworth, University of California, Irvine School of Law
4:00 p.m. | Panel 4: Workplace
Chair: Amanda Shanor, University of Pennsylvania
Helen Norton, University of Colorado School of Law
Benjamin Sachs, Harvard Law School
Liz Sepper, University of Texas Law School
Saturday, March 29
9:30 a.m. | Panel 5: Knowledge Production
Chair: Amy Kapczynski, Yale Law School
E.J. Fagan, University of Illinois Chicago
Vicki Jackson, Harvard Law School
Naomi Oreskes, Harvard
11:15 a.m. | Panel 6: Campus Politics
Chair: Genevieve Lakier, University of Chicago Law School
Judith Butler, University of California, Berkeley
Athena Mutua, University at Buffalo School of Law
Keith Whittington, Yale Law School
1:00 p.m. | Wrap-Up Conversation
Organizers: Jack Balkin, Genevieve Lakier, Mikey McGover
Forthcoming book on free speech and incitement
Free Speech and Incitement in the Twenty-First Century explores the line between free speech and incitement, which is a form of expression not protected by the First Amendment. Incitement occurs when a person intentionally provokes their audience to engage in illegal or violent action that is likely to, or will, occur imminently.
This doctrine evolved from World War I through the Cold War and the civil rights movement era, culminating in a test announced by the U.S. Supreme Court in Brandenburg v. Ohio (1969). Since the 1970s, this doctrine has remained largely unchanged by the Supreme Court and, as such, has received relatively little academic or media attention.
Since the late 2010s, however, violence at political rallies, armed protests around Confederate statues, social unrest associated with demonstrations against police, and an attack on the U.S. Capitol have led to new incitement cases in the lower courts and an opportunity to examine how incitement is defined and applied. Authors from different perspectives in Free Speech and Incitement in the Twenty-First Century help the reader understand the difference between free speech and incitement.
‘So to Speak’ podcast on Columbia University, DEI, and law firms
We explore how censorship is impacting institutions — from universities to law firms to the Maine House of Representatives.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Free speech related
Thompson v. United States (Decided: 3-21-25/ 9-0 with special concurrences by Alito and Jackson) (Interpretation of 18 U. S. C. §1014 re “false statements”)
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.
“Global law firms have for years played an outsized role in undermining the judicial process and in the destruction of bedrock American principles.” —Executive Order (3-14-25)
“Law firms refuse to represent Trump opponents in the wake of his attacks” — The Washington Post (3-25-25)
The wolf is at the door.
Those who do not yet realize this may be forgiven for perhaps two reasons: They do not know the wolf is ravenous, and they do not know the door is ajar.
To get but a whiff of this, just read Brad Karp’s March 23 memo to his colleagues at the Paul Weiss firm, from which the title of this edition of FAN gets its title.
Also this, from MSNBC legal correspondent Lisa Rubin:
[The attacks on law firms] began with Trump issuing executive actions punishing three firms — Covington & Burling, which did not react; Perkins Coie, which fought back and won a partial temporary restraining order; and Paul Weiss, which ultimately capitulated to a deal announced last Thursday, the terms of which are still a matter of some debate. But the president has now directed Attorney General Pam Bondi, in a memo issued Friday night, to seek sanctions “against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States.”
Now back to the Paul, Weiss controversy.
A little background at the outset to help set the retributive stage: According to Wikipedia, Karp “is a bundler for Democratic Party presidential candidates . . . having raised sums for the presidential campaigns of Kamala Harris, Cory Booker, Joe Biden, Amy Klobuchar, and others.”
In other words, if Trump was out for political retribution, Karp was a perfect target. And then consider this: One of Karp’s former partners was Mark Pomerantz, author of “People vs. Donald Trump: An Inside Account,” which details the attempt to prosecute former president Donald Trump, written by one of the lawyers who worked on the case and who resigned in protest when Manhattan’s district attorney refused to act.
And now on to the Executive Order from March 14, “Addressing Risks from Paul Weiss.” Excerpts below:
In 2022, Paul Weiss hired unethical attorney Mark Pomerantz, who had previously left Paul Weiss to join the Manhattan District Attorney’s office solely to manufacture a prosecution against me and who, according to his co-workers, unethically led witnesses in ways designed to implicate me. After being unable to convince even Manhattan District Attorney Alvin Bragg that a fraud case was feasible, Pomerantz engaged in a media campaign to gin up support for this unwarranted prosecution.
Additionally, Paul Weiss discriminates against its own employees on the basis of race and other categories prohibited by civil rights laws. Paul Weiss, along with nearly every other large, influential, or industry leading law firm, makes decisions around ‘targets’ based on race and sex.
My Administration is committed to ending such unlawful discrimination perpetrated in the name of “diversity, equity, and inclusion” policies and ensuring that Federal benefits support the laws and policies of the United States, including those laws and policies promoting our national security and respecting the democratic process.
Now, the Weiss law firm’s memo in response, from Brad Karp:
Brad Karp
Only several days ago, our firm faced an existential crisis. The executive order could easily have destroyed our firm. It brought the full weight of the government down on our firm, our people, and our clients. In particular, it threatened our clients with the loss of their government contracts, and the loss of access to the government, if they continued to use the firm as their lawyers. And in an obvious effort to target all of you as well as the firm, it raised the specter that the government would not hire our employees.
We were hopeful that the legal industry would rally to our side, even though it had not done so in response to executive orders targeting other firms. We had tried to persuade other firms to come out in public support of Covington and Perkins Coie. And we waited for firms to support us in the wake of the President’s executive order targeting Paul, Weiss. Disappointingly, far from support, we learned that certain other firms were seeking to exploit our vulnerabilities by aggressively soliciting our clients and recruiting our attorneys.
We initially prepared to challenge the executive order in court, and a team of Paul, Weiss attorneys prepared a lawsuit in the finest traditions of the firm. But it became clear that, even if we were successful in initially enjoining the executive order in litigation, it would not solve the fundamental problem, which was that clients perceived our firm as being persona non grata with the Administration. We could prevent the executive order from taking effect, but we couldn’t erase it. Clients had told us that they were not going to be able to stay with us, even though they wanted to. It was very likely that our firm would not be able to survive a protracted dispute with the Administration.
Commentary:
President Donald Trump’s crackdown on lawyers is having a chilling effect on his opponents’ ability to defend themselves or challenge his actions in court, according to people who say they are struggling to find legal representation as a result of his challenges.
[Such executive orders and pressured settlements set] an ominous precedent for future presidents to exploit. . . . [H]ow can a lawyer who is considering representing a politically controversial client know that she will not be targeted the next time control of the White House changes hands? The safest course of action will be to avoid representing clients of any political salience, right or left, even if their cause is just.
Related
Constitutional scholars on the Trump Administration’s threats against Columbia University
We write as constitutional scholars — some liberal and some conservative — who seek to defend academic freedom and the First Amendment in the wake of the federal government’s recent treatment of Columbia University.
The First Amendment protects speech many of us find wrongheaded or deeply offensive, including anti-Israel advocacy and even antisemitic advocacy. The government may not threaten funding cuts as a tool to pressure recipients into suppressing such viewpoints. This is especially so for universities, which should be committed to respecting free speech.
At the same time, the First Amendment of course doesn’t protect antisemitic violence, true threats of violence, or certain kinds of speech that may properly be labeled ‘harassment.’ Title VI rightly requires universities to protect their students and other community members from such behavior. But the lines between legally unprotected harassment on the one hand and protected speech on the other are notoriously difficult to draw and are often fact-specific. In part because of that, any sanctions imposed on universities for Title VI violations must follow that statute’s well-established procedural rules, which help make clear what speech is sanctionable and what speech is constitutionally protected.
Yet the administration’s March 7 cancellation of $400 million in federal funding to Columbia University did not adhere to such procedural safeguards. Neither did its March 13 ultimatum stipulating that Columbia make numerous changes to its academic policies — including the demand that, within one week, it “provide a full plan” to place an entire “department under academic receivership for a minimum of five years” — as “a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.”
Signatories
Steven G. Calabresi Clayton J. and Henry R. Barber Professor of Law, Northwestern Law School
Erwin Chemerinsky Dean and Jesse H. Choper Distinguished Professor of Law, Berkeley Law School
David Cole Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown University Law Center
Michael C. Dorf Robert S. Stevens Professor of Law, Cornell Law School
Richard Epstein Laurence A. Tisch Professor of Law, NYU School of Law
Owen Fiss Sterling Professor Emeritus of Law, Yale Law School
Aziz Huq Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School
Pamela Karlan Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School
Randall Kennedy Michael R. Klein Professor of Law, Harvard Law School
Genevieve Lakier Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
Michael McConnell Richard and Frances Mallery Professor of Law, Stanford Law School
Michael Paulsen Distinguished University Chair and Professor, St. Thomas Law School
Robert Post Sterling Professor of Law, Yale Law School
David Rabban Dahr Jamail, Randall Hage Jamail, and Robert Lee Jamail Regents Chair in Law, University of Texas Law School
Geoffrey R. Stone Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
Nadine Strossen John Marshall Harlan II Professor of Law Emerita, New York Law School
Eugene Volokh Thomas M. Siebel Senior Fellow, Hoover Institution, Stanford University
Keith Whittington David Boies Professor of Law, Yale Law School
SCOTUS denies review in case urging that Sullivan be overruled
Wynn v. Associated Press (issue: Whether this Court should overturn Sullivan’s actual-malice standard or, at a minimum, overrule Curtis Publishing Co.’s expansion of it to public figures)
On the Trump administration targeting campuses
The United States is home to the best collection of research universities in the world. Those universities have contributed tremendously to America’s prosperity, health, and security. They are magnets for outstanding talent from throughout the country and around the world. The Trump administration’s recent attack on Columbia University puts all of that at risk, presenting the greatest threat to American universities since the Red Scare of the 1950s. Every American should be concerned.
Until recently, it was a little-known program to help Black and Latino students pursue business degrees.
But in January, conservative strategist Christopher Rufo flagged the program known as The PhD Project in social media posts that caught the attention of Republican politicians. The program is now at the center of a Trump administration campaign to root out diversity, equity and inclusion programs in higher education.
The U.S. Education Department last week said it was investigating dozens of universities for alleged racial discrimination, citing ties to the nonprofit organization. That followed a warning a month earlier that schools could lose federal money over “race-based preferences” in admissions, scholarships or any aspect of student life.
The investigations left some school leaders startled and confused, wondering what prompted the inquiries. Many scrambled to distance themselves from The PhD Project, which has aimed to help diversify the business world and higher education faculty.
Zoom webinar on strategies to combat attacks on free speech in academia
Thursday, March 27, 2025, 1:00 – 2:00 PM ET
As efforts to silence dissent grow more aggressive, the immediate and long-term threats to our constitutional freedoms — especially in educational institutions — cannot be ignored.
This virtual panel will bring together top legal minds and policy experts to examine how these actions affect student activists, journalists, and marginalized communities. Together, we’ll explore the legal strategies needed to safeguard First Amendment rights and resist the erosion of civil liberties.
Featured Panelists: Maria Kari, Human Rights Attorney Rep. Delia Ramirez (IL-03) Jenna Leventoff, Senior Policy Counsel, ACLU Stephen F. Rohde, MPAC Special Advisor on Free Speech and the First Amendment Whether you’re a student, educator, advocate, or supporter of civil rights, this is a conversation you won’t want to miss.
Register today and join us in defending the values that define our democracy.
Whittington on diversity statements and college hiring
Keith Whittington
The University of California is the godfather of the use of so-called diversity statements in faculty hiring. I have a piece forthcoming at the Nebraska Law Review arguing that such diversity statement requirements for general faculty hiring at state universities violate the First Amendment and violate academic freedom principles everywhere. It seems quite likely that in practice such diversity statement requirements are also used to facilitate illegal racial discrimination in faculty hiring.
The University of California system’s board of regents has now put an end to the use of such diversity statements at those schools. This is a truly remarkable development. Not unreasonably, this decision is being put in the context of the Trump administration’s extraordinary attack on Columbia University, a move that I think is both lawless and itself a threat to academic freedom. But there’s no question that it got the attention of university leaders across the country, and if it encourages some of them to rededicate themselves to their core institutional mission and its central values then at least some good will come of it. So silver linings and all that.
Trump rails against portrait at the Colorado Capitol
Institute for Free Speech files brief in campaign disclosure-fee case
The case is Sullivan v. Texas Ethics Commission. The issue in the case is whether — and if so, under what circumstances — the First Amendment permits the government to require ordinary citizens to register and pay a fee to communicate with their government representatives.
Amicus brief here. Counsel of record: Alan Gura. The Institute’s brief argues that the 1954 precedent of United States v. Harriss no longer reflects modern First Amendment jurisprudence and fails to protect the right to speak anonymously about matters of public policy.
Forthcoming book by Princeton’s president on campus free speech
The president of Princeton, a constitutional scholar, reveals how colleges are getting free speech on campuses right and how they can do better to nurture civil discourse and foster mutual respect
Conversations about higher education teem with accusations that American colleges and universities are betraying free speech, indoctrinating students with left-wing dogma, and censoring civil discussions. But these complaints are badly misguided.
In Terms of Respect, constitutional scholar and Princeton University president Christopher L. Eisgruber argues that colleges and universities are largely getting free speech right. Today’s students engage in vigorous discussions on sensitive topics and embrace both the opportunity to learn and the right to protest. Like past generations, they value free speech, but, like all of us, they sometimes misunderstand what it requires. Ultimately, the polarization and turmoil visible on many campuses reflect an American civic crisis that affects universities along with the rest of society. But colleges, Eisgruber argues, can help to promote civil discussion in this raucous, angry world — and they can show us how to embrace free speech without sacrificing ideals of equality, diversity, and respect.
Urgent and original, Terms of Respect is an ardent defense of our universities, and a hopeful vision for navigating the challenges that free speech provokes for us all.
Forthcoming scholarly article on AI and the First Amendment
This paper challenges the assumption that courts should grant outputs from large generative AI models, such as GPT-4 and Gemini, First Amendment protections. We argue that because these models lack intentionality, their outputs do not constitute speech as understood in the context of established legal precedent, so there can be no speech to protect. Furthermore, if the model outputs are not speech, users cannot claim a First Amendment right to receive the outputs.
We also argue that extending First Amendment rights to AI models would not serve the fundamental purposes of free speech, such as promoting a marketplace of ideas, facilitating self-governance, or fostering self-expression. In fact, granting First Amendment protections to AI models would be detrimental to society because it would hinder the government’s ability to regulate these powerful technologies effectively, potentially leading to the unchecked spread of misinformation and other harms.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Free speech related
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
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.
Several future posts are in the works, as well as a Resources Page, so stay tuned. – rklc
Professor Timothy Zick
Presidents and suppressive campaigns: Today’s unprecedented practices
Executive Watch is an effort to record and analyze the many First Amendment-related conflicts and concerns arising during the second administration of President Donald Trump. One of the challenges in assessing the administration’s approach to the press and critics is to identify and explain what is distinct or unique about it. After all, the policies and actions of every administration have raised First Amendment issues and concerns. John Adams had reporters jailed under the Sedition Act, Richard Nixon had his “enemies list,” President Obama’s Department of Justice was criticized for prosecuting reporters in national security cases, and President Biden’s administration was accused of pressuring social media platforms to censor disfavored speech.
However, as I explained in my introductory post for Executive Watch, what is distinct about the current president and administration is the depth and breadth of the campaign they are waging against critics, both inside and outside government.
The current situation represents an unprecedented and coordinated effort to use courts, governmental agencies, and even private individuals to engage in retribution, intimidate media and non-media critics, impose official orthodoxies, and punish dissent.
Civil lawsuits as engines of leverage and intimidation
“I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.” — Donald J. Trump
One aspect of the broader current agenda involves the filing of civil defamation, consumer fraud, and other lawsuits against the press and others who publish disfavored information or opinions critical of Trump or his administration.
Like any other citizen, a political candidate, president, or ex-president has the right to file lawsuits and seek redress for reputational or other harms. Indeed, prior to Trump, at least one ex-president did so. However, the extent to which Trump has relied, and continues to rely, on defamation and other civil lawsuits against media and non-media defendants is a unique aspect of a broader campaign against political critics. No other political candidate or president has wielded the civil lawsuit as a political sword quite as Trump has.
When it comes to civil litigation, Trump is in a league of his own. By one account, Trump has been involved in more than 4,000 civil lawsuits over the years, ranging from business disputes to defamation and other actions. Even for someone like Trump, who has been involved in a variety of complex business ventures, that is a remarkable number of civil actions.
One lesson Trump likely learned from his litigation experience is that lawsuits can be an effective form of leverage in business and other dealings. Indeed, even if a claim has no or little legal merit, it can be useful in terms of exhausting, intimidating, and silencing opponents.
For a long time, many of Trump’s civil lawsuits were business-related. However, since he became a political candidate, Trump’s filing of defamation actions has significantly spiked. As a political candidate and officeholder, he has pursued several defamation lawsuits against media and non-media defendants.
Trump has sued CNN, The Washington Post, and The New York Times, as well as local media outlets, for critical coverage of his campaign and first term as president. For example, he brought a $475 million defamation lawsuit against CNN over the network’s use of the term “the Big Lie” to describe his false claims that he won the 2020 election. That claim was dismissed. More recently, Trump brought a $20 billion civil action against “60 Minutes” and CBS for allegedly editing an interview with Kamala Harris in ways that obscured or improved her answers to questions.
Trump also sued ABC News and George Stephanopoulos for stating that he had been found liable for “rape” in a civil case. Finally, Trump sued The Des Moines Register and its parent company, Gannett, for publishing a flawed poll showing Trump trailing Harris in the 2024 presidential election in Iowa. He also filed suit against the pollster herself, J. Ann Selzer. All of this despite Trump ultimately winning Iowa handily, raising questions about what damages he allegedly suffered.
Trump has also filed civil lawsuits against non-media defendants. For example, he has sued the Pulitzer Board for recognizing The New York Times for its reporting on the Russia investigation. (That suit has been allowed to proceed, at least for now.)
Trump and his lawyers have also been expanding their civil suit repertoire. He sued CBS and the defendants in the Iowa case for consumer fraud and election interference. His lawsuit against CBS also contains a claim under the Lanham Act, which provides civil damages for false advertising. These suspect allegations target core press functions and political speech.
Additionally, Trump has vowed to file many more civil lawsuits against those who publish unflattering opinions or disfavored information. He has claimed such legal action is necessary to “straighten out the press” and punish those he accuses of fraud and election interference.
Poor litigation track record
For all his litigation experience, Trump has a very poor track record in civil lawsuits, particularly those claiming defamation. In fact, he nearly always loses — sometimes very badly. Trump has even been ordered to pay media defendants substantial damages for filing harassing and frivolous defamation lawsuits. Some states have laws that impose liability on plaintiffs for bringing so-called SLAPPs (Strategic Lawsuit Against Public Participation) — essentially, defamation actions intended to silence or intimidate critics. Trump has been found liable for damages under such laws.
This is one context in which Trump may not mind being a loser or even paying damages. Weaponizing civil lawsuits and courts is not about restoring Trump’s damaged reputation, recovering damages, protecting consumers, ensuring the integrity of elections, or any other legitimate private or public interest. Rather, they are a means of punishing critics and chilling, through expensive and often frivolous litigation, the publication of unfavorable or unflattering information and opinion.
Civil lawsuits as political weapons
“Donald Trump is abusing the legal system to punish speech he dislikes. If you have to pay lawyers and spend time in court to defend your free speech, then you don’t have free speech.” — Adam Steinbaugh
Like many other aspects of the Trump administration’s agenda, civil lawsuits serve important political purposes. They are part of the campaign to suppress dissent, undermine the press, and entrench executive power.
Decades of litigation have likely convinced Trump that the prospect of defending against frivolous and strategically harassing claims will either convince defendants to settle, trim their critical reporting, or both. In that sense, civil lawsuits are an effective means of intimidating, leveraging, and silencing opponents.
The civil lawsuits communicate political narratives about the press as an institution, hoping to further weaken its public standing. Many of Trump’s civil complaints present hyperbolic and unsupported claims concerning Trump, the press, or both. They also highlight longstanding grievances against the media and other critics. Regardless of their outcome, Trump will be applauded by political supporters for waging war against the press, which Trump continues to describe as “the enemy of the American people.”
In a broader sense, civil lawsuits are part of a campaign to entrench executive power by undermining or eliminating institutions — including the press, agencies, lawyers, and universities — that can check the administration’s political and other narratives. Destroying the credibility of media and non-media fact-checkers and harassing them in civil suits, often through exorbitant demands for damages, serves these larger goals.
Regardless of their merit, Trump’s lawsuits force defendants to consider whether it is worth publishing truthful information or opinions that reflect poorly on him or his administration. The ordinary demands and pressures of civil litigation are even more pronounced when the plaintiff is the president of the United States. Judges may be reluctant to dismiss frivolous claims as a result of Trump’s status, and juries in some jurisdictions may be inclined to side with the president against his critics.
Past as prelude: The Sullivan story and its current importance
Using civil lawsuits as a cudgel against the media and other critics is an abusive practice that threatens to chill communication of opinions and facts. Although unprecedented for a presidential candidate or president, weaponizing defamation and other civil lawsuits to suppress criticism and chill reporting is not a new tactic.
During the Civil Rights Era, local southern officials relied on pro-plaintiff standards to censor and intimidate both media outlets and civil rights activists. Through frequent lawsuits, local and state officials sought to control the narrative about racial segregation.
Recognizing the chilling effect of this litigation tactic, in its 1964 decision New York Times Co. v. Sullivan the Supreme Court adopted a demanding standard of proof applicable to public officials who sued for allegedly defamatory statements about the conduct of their official duties. Under that precedent, public officials must show the statements were made with “actual malice,” i.e., that the defendant knew they were false when published or published them with reckless disregard for their truth. The Court later extended the actual malice standard to suits brought by public figures, including those like Trump who have gained extensive public notoriety.
Sullivan was a direct response to early SLAPPs, which were filed to censor local and national reporting about the extent and effects of racial segregation. As the Court recognized, because no double jeopardy limit applied in the civil context, defamation lawsuits could be even more chilling to a free press than the threat of criminal prosecution.
Anthony Lewis
Indeed, as Anthony Lewis observed in his book about the Sullivan case, by 1964, southern officials had brought $300 million in libel claims against the press for truthfully reporting on civil rights abuses. Sullivan’s protective standard — which the president favors eliminating — has been an effective shield for defendants sued by Trump. Without it, media and non-media defendants may face sizable damage awards for publishing even truthful criticism of Trump or the administration.
To be sure, the press does not always act responsibly. Media outlets and reporters can be held liable for knowingly or recklessly publishing false statements about public officials or figures. At the same time, as anti-SLAPP legislation shows, expensive lawsuits and the threat of civil damages can undermine the ability of the press and others to share vitally important information with the public. Trump and his lawyers have upped the ante with consumer fraud and other claims, which must still be rebutted even if frivolous.
In the hands of political officials, including presidents, abusive civil lawsuits can significantly undermine efforts to check power and educate the public.
Troubling successes — and possible responses
Trump has had some recent success in his civil lawsuits. For example, ABC News settled a defamation lawsuit, agreeing to donate $15 million to Trump’s presidential library and issue an apology for George Stephanopolous’s comments about the civil sexual assault verdict (which the trial judge held was “substantially true” in another Trump defamation lawsuit). CBS and “60 Minutes” are reportedly also considering a settlement, even though legal experts agree the lawsuit is based on a frivolous theory that a news network can be held liable for how it edits interviews.
Meanwhile, Trump has already extracted (if that is the right word) hefty settlements from Meta and X, for seemingly defensible decisions they made to de-platform or restrict Trump based on violations of their terms of service. A judge had dismissed Trump’s action against Twitter (now X), which was based on the First Amendment.
Of course, as law students in my classes know, the First Amendment constrains state action, not the private actions of social media platforms.
WATCH VIDEO: Firing the Watchdogs | 60 Minutes Full Episodes
There are many reasons a defendant might want to settle a civil lawsuit. One reason being to avoid a protracted and costly court proceeding, to avoid discovery, or to avoid the risk of a jury verdict. However, settlement of SLAPPs raise concerns about press obeisance and lack of independence. Rather than defend core First Amendment press prerogatives and functions, large media corporations with regulatory or other business before the Trump administration may be making balance sheet decisions.
As some commentators have suggested, social and media legacy companies may be settling meritless cases to grease the regulatory skids for pending mergers and other potential benefits from the Trump administration. Some have even suggested that some of these settlements may constitute a novel form of political corruption. Thus, one commentator referred to settling frivolous civil lawsuits brought by Trump as “a novel pathway to engage in political bribery.” (Of course, even if the practice fits that description, the administration can simply refuse to enforce political corruption laws against settling defendants.)
There are several means of combatting the weaponization of civil lawsuits. The most direct and obvious is to defend against these lawsuits and offer a robust First Amendment defense. As history shows, weaponizing civil lawsuits has dangerous implications for the freedoms of the press and speech. Trump’s aggressive resort to defamation and other civil lawsuits also highlights the importance of retaining Sullivan’s press-protective standard. Defendants ought to put up substantial and sustained resistance to lawsuit weaponization.
Anti-SLAPP statutes can also provide a deterrent. A federal anti-SLAPP law would make this important protection more widely available. Thus far, Trump has not been much deterred by anti-SLAPP liability. However, making such protections available regardless of jurisdiction would provide all defendants an opportunity to dismiss harassing defamation claims.
There are also actions judges can take to punish and deter abusive civil lawsuits. Judges have the power to dismiss baseless or frivolous claims on their own, and to sanction lawyers who file them. Some commentators have urged judges to refuse to approve media settlements of frivolous claims brought by Trump, on the grounds that they are the product of duress or fraud, or are otherwise against public policy.
Like agency employees, private employers, lawyers, universities, and others who have been subject to executive actions meant to punish or chill expression, media and non-media defendants currently face a critical choice: capitulate or fight.
For the sake of the First Amendment, let us hope the targets of strategic civil lawsuits defend them vigorously.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
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.
