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 discretionary speech-based investigations 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.
Tag: Amendment
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‘Executive Watch’: The breadth and depth of the Trump administration’s threat to the First Amendment — First Amendment News 465
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: 30The 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:
- The Federal Bureau of Investigation
- The Department of Justice
- The Department of Health and Human Services
- The Department of Education
- The General Services Administration
- The Department of Homeland Security
- The State Department
- U.S. Immigration and Customs Enforcement
- U.S. Customs and Border Patrol
- The Federal Communications Commission
- The Office of Personnel Management
- The Agency for Healthcare Research and Quality
- The United States Agency for Global Media
- The Federal Trade Commission
In contrast to Trump 1.0, during Trump 2.0 the entire agency alphabet soup is fully committed to enforcing executive orders that require adoption of official orthodoxies and ideologies, or punish individuals or institutions for their viewpoints. Pursuant to these executive orders, federal agencies have investigated employers and universities based on their support for DEI, targeted law firms based on their clients and causes, arrested international students based on their political advocacy, investigated broadcast stations based on the content of their shows, and removed scientific papers from public databases because they include forbidden words about gender or diversity.
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”)
Last scheduled FAN
FAN 464: “Free speech in an age of fear: The new system loyalty oaths”
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.
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Free speech in an age of fear: The new system loyalty oaths – First Amendment News 464
“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.”
If you fit this category, whether or not you publish on Substack, we urge you to get in touch immediately at thefire.org/alarm or pages.substack.com/defender.
- The Associated Press, “Trump Task Force To Review Harvard’s Funding After Columbia Bows to Federal Demands,” First Amendment Watch (April 1)
- “How law firms are fighting Trump’s executive orders,” CBS (March 31)
- Caroline G. Hennigan and Bradford D. Kimball, “More Than 80 HLS Professors Denounce Trump Admin Attacks on Law Firms in Letter to Students,” The Harvard Crimson (March 29)
- Eugene Volokh, “Paul Clement’s Argument Against the Executive Order Targeting the WilmerHale Law Firm,” The Volokh Conspiracy (March 28)
- Mark Berman, Perry Stein, and Jeremy Roebuck, “Judges block Trump penalties for two law firms as he strikes deal with third,” The Washington Post (March 28)
- Pramila Jayapal, “We Have to Stand Up and Fight Back,” The Nation (March 27)
Coming Soon
A Question and Answer interview with Janie Nitze, co-author with Justice Neil Gorsuch of “Over Ruled: The Human Toll of Too Much Law.”
See “An open invitation to Justice Neil Gorsuch and Janie Nitze to reply to their new book’s critics,” FAN 444 (Oct. 23)
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.
More in the news
- Thomas Maxwell, “Judge Kills Social Media Age Verification Law, Says It Violates the First Amendment,” Gizmodo (April 1)
- Eugene Volokh, “The 2024 Presidential Campaign Saw a Massive Disinformation and Misinformation Campaign,” The Volokh Conspiracy (March 31)
- The Associated Press, “US Immigration Officials Look To Expand Social Media Data Collection,” First Amendment Watch (March 31)
- David Bauder, “Associated Press, banned from White House press pool, renews request to court for reinstatement,” Free Speech Center (March 28)
- Sofia Lopez, “FIRE-supported Utah legislation secures students’ rights to freely associate on campus,” FIRE (March 27)
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”)
Last scheduled FAN
FAN 463: ‘We simply could not practice law . . . if we were still subject to the executive order’
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.
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‘We simply could not practice law . . . if we were still subject to the executive order’ – First Amendment News 463
“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.
More in the news
- “VICTORY: Federal court blocks Texas A&M’s unconstitutional drag ban,” FIRE (March 24)
- Eugene Volokh, “Nevada Court Decision in Climate Blogger’s Doxing Lawsuit Against Daily Kos,” The Volokh Conspiracy (March 24)
- Taylor Hertzlich, “FCC’s Brendan Carr warns DEI policies at Paramount, Verizon could threaten mergers,” The New York Post (March 21)
- Julie Carr Smyth, “Appeals court hears dispute over Ohio school district’s pronoun policy,” Free Speech Center (March 21)
- Jeff Zeeman, “American Jews must not give an inch on free speech — even when words hurt us,” FIRE (March 21)
- “Free Speech Arguments – Can Public Schools Compel Preferred Pronoun Usage? (Parents Defending Education v. Olentangy Local School District, et al.),” Institute for Free Speech (March 19)
- Sasha Volokh, “Amicus Brief in Georgia Adult-Entertainment Case,” The Volokh Conspiracy (March 19)
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”)
Last scheduled FAN
FAN 462: “Executive Watch: Trump’s weaponization of civil lawsuits”
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.
- Steven G. Calabresi
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Executive Watch: Trump’s weaponization of civil lawsuits — First Amendment News 462
This is the latest installment of Professor Timothy Zick’s “Executive Watch,” which debuted with First Amendment News 457. This post focuses on civil suits by government figures, mainly by the sitting president. It comes at a time when the legitimacy of the New York Times v. Sullivan case is being challenged, and while efforts to establish a national anti-SLAPP law are being thwarted.
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.
Among other actions, the president and various government agencies have attacked the press and called for the firing of individual reporters; excluded media outlets from official events for failing to use preferred geographic language; retaliated against civil servants who investigated or prosecuted crimes Trump allegedly committed; punished private law firms for lawful advocacy; used the FCC and other agencies to investigate and sanction media outlets for negative coverage; scrubbed government websites of truthful information about racial health disparities and gender discrimination; threatened to prosecute critics of Elon Musk’s efforts to downsize the federal government; arrested a green card holder for participating in campus protests; and suppressed disfavored speech about diversity, equity and inclusion in workplaces and on university campuses.
That is just a partial list.
Notably, these efforts have been undertaken not just by Trump, but also through actions by a host of federal agencies including the Department of Justice, the Department of Education, the Federal Communications Commission, and the Department of State.
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.)
Review granted
Pending petitions
Petitions denied
Last scheduled FAN
FAN 461: “Intimidating abridgments and political stunts”
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.
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Intimidating abridgments and political stunts — First Amendment News 461
“This proceeding is a political stunt.”
Those were the words with which FIRE Chief Counsel Robert Corn-Revere (joined by FIRE General Counsel Ronnie London and FIRE Legal Director Will Creeley) submitted comments on behalf of FIRE to the Federal Communications Commission concerning a complaint by the Center for American Rights.
Such “political stunts” have become more the norm with the Trump administration. Consider, for example, the recent crazy letter by Trump’s interim U.S. attorney Edward R. Martin, Jr., in which he tried to intimidate the dean of Georgetown Law School by saying that if the school continued to teach DEI, his office would not hire their students. Or consider the bizarre attempt by the Social Security Administration’s acting commissioner to change Maine’s Social Security requirements because their governor criticized Trump.
As to the Center for American Rights’ FCC complaint, it alleged “news distortion” by CBS Broadcasting when it assertedly edited the news program 60 Minutes “to such a great extent” that the “public cannot know what answer . . . Vice President [Kamala Harris] actually gave to a question of great importance.”
The FCC had originally dismissed the complaint because the center failed to make a viable allegation of “intentional” or “deliberate” falsification, as opposed to merely an editorial judgment protected under the First Amendment.
Nonetheless, on Jan. 20, the FCC seated Trump-appointed Chairman Brendan Carr, and two days later the FCC reinstated the center’s complaint and then invited public comments.
It is against that backdrop that Corn-Revere and his colleagues, acting on behalf of FIRE, offered their comments.
Below are a few of the statements set out in FIRE’s poignant comments on the FCC matter:
Public comments and the legitimate scope of the Commission’s enforcement authority:
FIRE . . . seeks to ensure the FCC does not exceed the scope of its authority in encroaching on broadcasters’ journalistic decisions. . . The general public is not a “party” to enforcement proceedings, 47 C.F.R. § 1.1202(d)(1)(iii), and generally lacks standing in such matters.
Then what is the point of all this? By seeking public comment, is the Commission seriously asking viewers and listeners, along with politically energized partisans, to “vote” on whether they think CBS’s editorial choices ran afoul of FCC policies? Any such submissions are meaningless in helping the agency decide whether CBS violated any policies or what remedies might lie.
The commission’s attempt to regulate editorial judgments:
[B]ecause this proceeding focuses entirely on a news program’s editorial judgment, it runs headlong into the elementary rule that the right to “free speech [and] a free press…may not be submitted to vote; they depend on the outcome of no elections.”
Using the law to pressure CBS:
Bottom line, the Commission’s request for public comment lacks any legitimate regulatory rationale, but its realpolitik purpose is sadly transparent. This proceeding is designed to exert maximum political leverage on the CBS network at a time when President Trump is engaged in frivolous litigation against it over the same 60 Minutes broadcast, with the FCC using other regulatory approvals the network needs to exert added pressure.”
An unconstitutional use of regulatory power:
This is not just unseemly, it is precisely the sort of unconstitutional abuse of regulatory authority the Supreme Court unanimously condemned in NRA v. Vullo, 602 U.S. 175 (2024). The Court held that regulators violate the First Amendment when they use their official powers over certain transactions in ways designed “to suppress the speech of organizations that they have no direct control over.”
And then, with historical accuracy and legal acumen, Corn-Revere, London, and Creeley tendered a powerful point (emphasis added and notes omitted):
There is a name for this kind of thing — it is called a show trial. When proceedings become a performative exercise conducted to further a political purpose, they forfeit any claim to legitimacy. Show trials tend to be retributive rather than corrective and are designed to send a message, not just to their unfortunate victims, but as a warning to other would-be transgressors. There is a dark and deadly history of such showcase proceedings in authoritarian regimes around the world, ranging from Stalin’s purges of perceived political opponents to China’s trials of “rioters and counterrevolutionaries” after the 1989 Tiananmen Square protests. In our own country, similar tactics were employed during the Red Scare with investigations and hearings aptly described by the Chairman of the House Committee on Un-American Activities as “the best show the committee has had yet.” Those who staged the proceedings “were not seeking justice but staging a show trial to accuse, indict, and punish.” And while the stakes of a sham FCC proceeding obviously differ, the perversion of the rule of law is the same.
Note
Corn-Revere was a legal adviser to FCC Commissioner James H. Quello from 1990 to 1993 and was Chief Counsel while Quello was interim chair of the FCC in 1993. Among other works, he is the editor of the 1997 book “Rationales & Rationalizations: Regulating the Electronic Media.”
Beyond stunts
In all of this, it is important to emphasize a critical point: It is not partisan to speak out against authoritarianism. It is vital.
Furthermore, and as the poet Lawrence Ferlinghetti (a strong defender of free speech) put it in his book “Poetry as an Insurgent Art”:
Governments lie. The voice of the government
is often not the voice of the people.
Speak up. Act out. Silence is complicity.What we are witnessing in the first weeks of the Trump administration is more than intimidating political stunts; it is the start of the serial suppression of free speech. See, for example, Michelle Goldberg’s piece in The New York Times, “This Is the Greatest Threat to Free Speech Since the Red Scare,” in which she writes that “a government [so] willing to disregard the First Amendment is a danger to us all.”
I will say more about this general point in a future post. Meanwhile, next week I will post another installment of professor Timothy Zick’s “Executive Watch.”
Trump v. CBS update
Thomas C. Riney (lead counsel for defendants) Argument
- The Lanham Act And The DTPA Do Not And Could Not, Consistent With The First Amendment Apply To Editorial Speech Like The Broadcasts At Issue
- Editorial Speech About Public Officials During An Election Enjoys Maximum First Amendment Protection
- Consistent With The First Amendment, The Lanham Act And The DTPA Extend Only To Commercial Speech
- The FTN And 60 Minutes Broadcasts Are Indisputably Editorial, Not Commercial, Speech
- Plaintiffs Fail To Plead Article III Standing
- President Trump Fails To Plead A Lanham Act Claim
- Plaintiffs Fail To Plead A DTPA Claim
Revenge Storm: ‘Chill all the lawyers’
- G.S. Hans, “Trump’s Attacks On Law Firms Are Borrowed From Some Pretty Famous Despots,” Balls and Strikes (March 10)
Threatening lawyers and legal organizations remains a classic from the despot’s playbook. Letting these orders stand without robust opposition — such as lawsuits from the affected firms, media statements from their leaders, and advocacy from similarly situated law firms — merely makes it easier for this administration to continue to stomp on less prominent targets.
Ronnie London on the Trump administration’s directive to impose court costs on rights litigants
FIRE General Counsel Ronnie London A new White House directive to heads of executive departments and agencies threatens to make it prohibitively expensive for Americans to defend the Constitution in court. The memo “directs” the departments and agencies to “demand” that courts make those seeking injunctions against federal actions “cover the costs . . . incurred if the Government is ultimately found to have been wrongfully enjoined.”
The move could not be more transparent in attempting to scare off potential litigants challenging executive orders or other federal actions of questionable constitutionality.
The White House deems this necessary because “activist organizations” are supposedly “inserting themselves into the executive policy making process” and have “obtained sweeping injunctions.” The administration claims Rule 65(c) of the Federal Rules of Civil Procedure mandates security bonds for all preliminary injunctions and temporary restraining orders to protect against the prospect of a later judicial ruling that the defendant was improperly enjoined.
But this is misleading. That literal reading of the rule may make sense in the mine-run of private disputes, like claims in commercial contexts. But courts have long recognized exceptions for public-interest litigation, especially when it comes to those seeking to protect constitutional rights. In other words, “activist groups” like FIRE and the clients we proudly defend.
David Cole on self-censorship
Former ACLU Legal Director David Cole The Trump administration’s attack on diversity, equity, and inclusion (DEI) programs in higher education has many college administrators running scared. The Chronicle of Higher Education, which is tracking DEI changes, has already identified forty-one campuses that have altered or dismantled their programs since Inauguration Day. The University of North Carolina ordered all its colleges to remove DEI-related courses from its requirements for specific majors or general education. The University of Alaska will not use the terms “diversity,” “equity,” or “inclusion” in any communications. Columbia “removed diversity, equity, and inclusion policy language from several of its websites.” Northwestern’s business school “removed a diversity, equity, and inclusion pathway from its MBA program.” Vanderbilt “took down its Equity, Diversity, and Inclusion page, which now redirects to ‘You at VU.’” And on Friday, the University of Virginia governing board voted to end all DEI at the state’s flagship school.
Yet not a single one of these changes was necessary. This is self-censorship. It’s what Trump wants — but it’s not what either his executive order or federal law requires. Clarifying that confusion is essential as more colleges plan their response to Trump’s attack. But so is a little courage on the part of college administrators.
Executive Watch
- Steve Vladeck, “Five Questions About the Khalil Case,” One First (March 11)
- Owen Jones, “Campuses, shut down debate: that’s what free speech looks like under Trump,” The Guardian (March 11)
- “Trump Warns That Arrest of Palestinian Activist at Columbia Will Be ‘First of Many’,” First Amendment Watch (March 11)
- Aaron Blake, “The Trump team’s slippery justification for deporting Mahmoud Khalil,” The Washington Post (March 11)
- Edward Wong, Charlie Savage, Hamed Aleaziz, and Luis Ferré-Sadurní, “Trump Administration Seeks to Expel a Green-Card Holder Over Student Protests,” The New York Times (March 10)
- Ilya Somin, “The Case Against Deporting Immigrants for ‘Pro-Terrorist’ Speech,” The Volokh Conspiracy (March 10)
- Ana Ley, “Columbia Activist in Detention Was Public Face of Protest Against Israel,” The New York Times (March 10)
- David French, “The MAGA Culture War Comes for Georgetown Law,” The New York Times (March 9)
- Stephanie Saul, “Trump Pulled $400 Million From Columbia. Other Schools Could Be Next,” The New York Times (March 8)
- Tom Nichols, “The Pentagon’s DEI Panic,” The Atlantic (March 7)
- Ailia Zehra, “Social Security chief reverses course on ending contracts affecting Maine: ‘I apologize’,” The Hill (March 7)
- Spencer S. Hsu and Dan Rosenzweig-Ziff, “U.S. attorney tells Georgetown he won’t hire from any school with ‘DEI’,” The Washington Post (March 5)
New cert. grant on ‘conversion therapy’ case
- Chiles v. Salazar: Issue: Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the free speech clause of the First Amendment.
John Bursch (Counsel of Record, Alliance Defending Freedom)
[T]he Supreme Court granted certiorari in Chiles v. Salazar, a First Amendment challenge to a Colorado law that prohibits so-called “conversion therapy” for minors. At issue is whether this is a permissible regulation of professional conduct or a viewpoint-based restriction on speech (with potential religious liberty implications as well). This will almost certainly be one of the most watched (and potentially most controversial) cases of next term.
Cert denied in college reporting bias case
- Speech First, Inc. v. Whitten: Issue: Whether university bias-response teams — official entities that solicit anonymous reports of bias, track them, investigate them, ask to meet with the perpetrators, and threaten to refer students for formal discipline — objectively chill students’ speech under the First Amendment.
Related
The Supreme Court said March 3 it wouldn’t hear a challenge from conservative college students who say their freedom of speech is violated by a university program for reporting allegations of bias. Two of the nine justices, Samuel Alito and Clarence Thomas, publicly said they would have heard the case.”)
Primate speech: PETA’s First Amendment complaint
The case is People for the Ethical Treatment of Animals v. National Institute of Mental Health (Dist. Ct., MD, March 6, 2025). The lead lawyer for the Plaintiff is Laura Handman.
Laura Handman (Counsel for Plaintiff) Below are a few excerpts from the complaint filed in the U.S. District Court for the District of Maryland:
This lawsuit seeks to enforce the fundamental first amendment right of Plaintiff, People for the Ethical Treatment of Animals, Inc. (PETA), to receive, without censorship or interference, communications from fellow primates, imprisoned and tortured in the laboratory of Elisabeth Murray, PhD, at the National Institute of Mental Health in Bethesda, Maryland.
The First Amendment to the United States Constitution provides PETA a right to receive communications from willing speakers. This right exists regardless of whether the speakers themselves possess First Amendment rights. The First Amendment also protects nonverbal communications as speech.
PETA engages in extensive news gathering and reporting activities as part of its charitable animal protection mission. This includes substantial investigation and reporting on the plight of animals subject to experimentation, including specifically the deprivations and injuries inflicted on the captive rhesus macaques in Murray’s NIMH laboratory. This Circuit has applied first amendment protections to PETA’s new gathering activities.
News gathering serves a particularly powerful function under the First Amendment when seeking access to incarcerated beings whose voices are otherwise silenced, to ascertain information about their conditions.
The captive rhesus macaques, including but not limited to Beamish, Sam Smith, Nick Nack, and Cersi in Murray’s NIMH laboratory are willing speakers under the First Amendment, regularly communicating about their physical and psychological pain and suffering through vocalizations, facial expressions, head and limb movements, body postures, and stereotypical behavior, indicating anxiety and depression (including pacing, rocking, pulling out their hair, and biting their flesh).
[ . . . ]
PETA has a right to receive those communications in real time directly from the rhesus macaques and to report the information received to the American people in order to inform the public discourse on the highly controversial and much criticized issue of government funded experiments on animals. Without these communications, the public will remain inadequately informed about the circumstances of their fellow primates.
This lawsuit follows the Defendants’ refusal of PETA’s August 5, 2024 written request for reasonable, uncensored, and unedited access to a live streamed audiovisual feed of the rhesus macaques in Murray’s laboratory in order to receive the macaques’ communications and exercise its first right to listen. Defendants also refused PETA’s offer in this letter to cooperate in devising and the alternative means for PETA to meaningfully access the macaques’ communication in real time without government interference [citations omitted].
New scholarly article: Abrams, et al, on the press clause
More in the news
- Eugene Volokh, “Libel Lawsuit Brought by R. Kelly’s Personal Assistant Thrown Out on ‘Actual Malice’ Grounds,” The Volokh Conspiracy (March 11)
- Eugene Volokh, “South Carolina City’s Restriction on Loud ‘Vulgar’ Music Violates First Amendment,” The Volokh Conspiracy (March 11)
- Eugene Volokh, “Nevada Math Prof Alleges Discipline for ‘Voic[ing] Concerns About … the Math Department … Lower[ing] Its Curriculum Standards’,” The Volokh Conspiracy (March 11)
- “Free speech advocates rally to support FIRE’s federal appeal to defend advocacy in public parks,” FIRE (March 10)
- Susanna Granieri, “ACLU of Michigan’s Ramis Wadood on Its Lawsuit Against University of Michigan,” First Amendment Watch (March 10)
- “VICTORY! 9th Circuit rules in favor of professor punished for criticizing college for lowering academic standards,” FIRE (March 10)
- Daniel Ortner, “Maine’s censure of lawmaker for post about trans student-athlete is an attack on free speech,” FIRE (March 7)
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
Last scheduled FAN
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.
- The Lanham Act And The DTPA Do Not And Could Not, Consistent With The First Amendment Apply To Editorial Speech Like The Broadcasts At Issue
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James Goodale on Trump: ‘He’d sue everybody . . . in the media business’ and their ‘response has been pathetic’ — First Amendment News 460
Recently, on a WBUR public radio program with Willis Ryder Arnold and Deborah Becker, author and leading First Amendment attorney James Goodale had some things to say about Donald Trump’s attempts to intimidate the press.
First a bit about the man. From the Wikipedia entry on Goodale:
James Goodale James Goodale is the former vice president and general counsel for The New York Times and, later, the Times’ vice chairman. He is the author of “Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles.”
Goodale represented The New York Times in four of its United States Supreme Court cases, including Branzburg v. Hayes, in which the Times intervened on behalf of its reporter Earl Caldwell. The other cases were New York Times v. Sullivan, New York Times Co. v. United States (the Pentagon Papers case), and New York Times Co. v. Tasini.
He has been called “the father of the reporter’s privilege” in the Hastings Law Journal because of his interpretation of the Branzburg case.
And now on to Goodale’s comments on WBUR regarding Trump:
So, if you’re not going to fight for your creativity, you’re not going to have a company left. And that applies not only to newspapers, but obviously movies, too. And let me say also, finally, that if you don’t fight, what Trump is going to do, he’s going to go from media company to media company with quasi true cases and pick up money. He’s just on a . . . bribery trail. And I say that from some experience here in New York City, which is exactly what he did before he ran for president. He’d sue everybody who was in the media business and drive them nuts, and the cases would finally go away.
But guess what? It cost the media company some bucks to defend it.
[. . .]
I believe that once the press starts making settlements where it has no real basis, in my humble opinion, for making them, it undercuts that whole role, and more importantly, I think it encourages someone like Trump to keep on doing it.
Similarly, in an exchange with Trevor Timm for The Freedom of the Press Foundation on Feb. 12, Goodale had this to say:
If CBS decides to settle [the “60 Minutes” lawsuit], it will be an absolute disaster for the press. It would be one more domino falling down, handing Trump an undeserved victory against the press. . . . [ABC’s] cowardly settling its case in which George Stephanopoulos said “rape” instead of “sexual abuse,” but since then, Facebook has settled Trump’s even more outlandish suit, and for what? CBS should be standing up and fighting Trump. If I’m them, I’m not letting Trump make me look foolish. Because if it happens, there will be no end. Trump will bring lawsuits against every part of the media, and it will put pressure on everyone else to settle.
Let me make clear that the lawsuit is a bunch of nonsense. Trump’s legal theory doesn’t exist anywhere in the law, and so not only is the settlement bad in terms of putting the onus on everyone else to settle, but the entire premise of the lawsuit is ridiculous. News outlets are allowed to edit interviews! Hard to believe it even has to be said.
[ . . . ]
The suit is from Mars. To my knowledge, I’ve never seen a suit brought like this one where editing is being criticized as constituting consumer fraud. It has no basis in law as far as I’m concerned, and what’s going to happen — if, in fact, the case is settled — is there will be more consumer fraud cases every time the media edits an interview, not only with Trump, but other politicians. And the First Amendment will suffer.
[ . . . ]
[And] the response by the press as we speak has been pathetic. There’s no spokesperson for the press who is out there leading the charge and coordinating a united front with all the news outlets on the same page.
Related
Revenge Storm: ‘Chill all the Lawyers’
“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)
“There are a lot of people in the FBI and also in the DOJ who despise Donald Trump, despise us, don’t want to be there. We will find them. Because you have to believe in transparency, you have to believe in honesty, you have to do the right thing. We’re gonna root them out and they will no longer be employed.” — Pamela Bondi (March 3)
WATCH VIDEO: Trump Signs Anti-Weaponization Executive Order: ‘The Deranged Jack Smith Signing!’ The administration is acting in ways that will necessarily chill a growing number of lawyers from participating in any litigation against the federal government, regardless of who the client is. That, in turn, will make it harder for many clients adverse to the Trump administration to find lawyers to represent them — such that at least some cases either won’t be brought at all or won’t be brought by the lawyers best situated to bring them.
[ . . . ]
[W]hat the Trump administration is doing is far more than just bad behavior; it’s a direct threat to the rule of law—almost as much as defying court orders would be.
Related
Executive Watch
President Donald Trump and his ally Elon Musk portray themselves as near-absolutists when it comes to free speech, engaged in an epic fight to let Americans speak openly again after years of enduring liberal efforts to shut down conservative voices.
But since taking office, the president has mounted what critics call his own sweeping attack on freedom of expression. Some of it aims to stamp out diversity, equity and inclusion and what he terms “radical gender ideology.” Some of it is aimed at media organizations whose language he dislikes. In other cases, the attacks target opponents who have spoken sharply about the administration.
Together, critics — and in some cases, judges — have said Trump’s efforts have gone beyond shaping the message of the federal government to threaten the First Amendment rights of private groups and individuals.
- “The MAGA War on Speech,” The New York Times (Feb. 28)
- David Enrich and Minho Kim, “Voice of America Journalists Face Investigations for Trump Comments,” The New York Times (Feb. 28 (Updated Mar. 2))
- Greg Lukianoff, “The First Amendment Isn’t on Trump’s Side,” The Wall Street Journal (Feb. 26)
- “The White House Says It ‘Will Determine’ Which News Outlets Cover Trump,” First Amendment Watch (Feb. 26)
- Devlin Barrett, Glenn Thrush, Maggie Haberman, and Alan Feuer, “Trump Takes Aim at Law Firm Aiding Jack Smith,” The New York Times (Feb. 25)
- Steve Benen, “DHS’ Kristi Noem says her pro-Trump ad campaign was Trump’s idea,” MSNBC (Feb. 24)
New report on state threats to free speech advocacy and donor privacy
Hurt feelings from the campaign trail fuel retaliatory disclosure demands across the U.S.
Legislative and regulatory proposals in as many as 34 states pose a potential threat to the privacy and free speech rights of donors to the nonprofit community, a new report finds. People United for Privacy Foundation (PUFPF), a national privacy rights advocacy group, warns that state officials are increasingly targeting the ability of nonprofit supporters to maintain their privacy as political polarization rises.
“After a bruising campaign season, many politicians are out for revenge against the groups and donors that dared to criticize them. These efforts reach far beyond traditional political committees to target nonprofits that discuss elected officials’ voting records or advocate on policy issues. Forcing nonprofits to publish their supporters’ names and home addresses is an intimidation tactic that chills free speech and violates personal privacy,” said PUFPF Vice President Matt Nese, a co-author of the report.
The report, “2025 State Threats to Donor Privacy and Nonprofit Advocacy,” analyzes current and past legislation, regulatory proposals, and statements by public officials to catalog potential threats to donor privacy in state legislative sessions occurring across the country.
Forthcoming book on how foreign authoritarian influence undermines freedom and integrity within American higher education
Sarah McLaughlin A revealing exposé on how foreign authoritarian influence is undermining freedom and integrity within American higher education institutions.
In an era of globalized education, where ideals of freedom and inquiry should thrive, an alarming trend has emerged: foreign authoritarian regimes infiltrating American academia. In Authoritarians in the Academy, Sarah McLaughlin exposes how higher education institutions, long considered bastions of free thought, are compromising their values for financial gain and global partnerships.
This groundbreaking investigation reveals the subtle yet sweeping influence of authoritarian governments. Universities leaders are allowing censorship to flourish on campus, putting pressure on faculty, and silencing international student voices, all in the name of appeasing foreign powers. McLaughlin exposes the troubling reality where university leaders prioritize expansion and profit over the principles of free expression. The book describes incidents in classrooms where professors hesitate to discuss controversial topics and in boardrooms where administrators weigh the costs of offending oppressive regimes. McLaughlin offers a sobering look at how the compromises made in American academia reflect broader societal patterns seen in industries like tech, sports, and entertainment.
Meticulously researched and unapologetically candid, Authoritarians in the Academy is an essential read for anyone who believes in the transformative power of education and the necessity of safeguarding it from the creeping tide of authoritarianism.
Sarah McLaughlin is a senior scholar of global expression at the Foundation for Individual Rights and Expression
Nadine Strossen on ‘The Weimar Fallacy’
FIRE Senior Fellow and former ACLU President Nadine Strossen discusses what is commonly known as The Weimar Fallacy: The idea that, if only the Weimar Republic in Germany had tamped down on Nazis and anti-Semitic speech, Hitler’s rise and the horrors of the Holocaust could have been averted.
As the daughter of a Holocaust survivor, Nadine knows just how ugly anti-Semitism can be — but censorship only makes it worse.
The truth is, there were many hate speech laws in Weimar Germany, and they were strongly enforced against the Nazis — including Hitler himself.
Not only did those hate speech laws help the Nazis gain power, they also helped the Nazis censor anyone who challenged it.
WATCH VIDEO: Would “hate speech” laws have stopped the Nazis? NAACP-LDF’s Janai Nelson on racism and book banning
LDF Associate Director-Counsel Janai Nelson speaks on the legal challenges to banned books, LDF’s legacy of using the law in order to transform society, and why progress toward racial justice requires we tell the truth about our nation’s history.
WATCH VIDEO: Banned Books Week: Janai Nelson on Ideas & Action New Book by Gene Policinski traces history of First Amendment
First amendment, threats and defenses have, for much of the past 100 years, largely focused on protecting individual speech, the right of any one of us to express ourselves without interference or punishment by the government. But there is an increasing danger to our core freedoms from systemic challenges, which often involve other issues or circumstances, but which carry a First Amendment impact, if not wallop. – Gene Policinski
Gene Policinski (left) and Kevin Goldberg at Freedom Forum on Feb. 26, 2025. (Credit: Ron Collins) This fast-paced history of the First Amendment will engage students, educators, scholars and other fans of our nation’s most fundamental freedoms.
In “The First Amendment in the 21st Century,” Gene Policinski, Freedom Forum senior fellow for the First Amendment and past First Amendment Center president, traces the history of the First Amendment through its winding social and legal paths as it has intertwined with world events and cultural change.
He explores how this history shows today’s potential for a First Amendment renaissance even amid new technological challenges.
Deeply researched and clearly written, “The First Amendment in the 21st Century” reconciles the past and the present and opines on the future of our First Amendment freedoms — from the courtroom to the chat room.
New scholarly article: First Amendment Right to Affirmative Action
In the wake of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, affirmative action proponents should pursue a First Amendment approach. Private universities, which are speaking associations that express themselves through the collective speech of faculty and students, may be able to assert an expressive association right, based on Boy Scouts of America v. Dale, to choose their faculty and students. This theory has been recently strengthened by 303 Creative LLC v. Elenis.
I discuss various complexities and counterarguments: (1) Race is not different from sex or sexual orientation for purposes of the doctrine. (2) The market context may not matter, especially after 303 Creative. (3) The conditional-federal-funding context does give the government more power than a simple regulatory context; the government will still be able to induce race-neutrality by the threat of withdrawing federal funds, but the unconstitutional conditions doctrine precludes draconian penalties such as withdrawing all funds from the entire institution based only on affirmative action in some units. (4) This theory doesn’t apply to public institutions.
I also explore the potential flexibilities of this theory, based on recent litigation. The scope of the Boy Scouts exception might vary based on (1) what counts as substantial interference with expressive organizations, (2) what counts as a compelling governmental interest, and, most importantly, (3) what it takes for activity to be expressive.
More in the news
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
Last scheduled FAN
FAN 459: “Alex Kozinski on JD Vance’s censorship speech”
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.
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Alex Kozinski on JD Vance’s censorship speech — First Amendment News 459
The Wall Street Journal recently published an op-ed by former Ninth Circuit Judge Alex Kozinski in which he, among other things, praises Vice President JD Vance’s recent speech in Munich about the evils of censorship in Europe — which included references to Kozinski’s birthplace, Romania.
Judge Alex Kozinski True to form, the Kozinski article was bold in ways certain to provoke criticism. Below are a few “fair use” excerpts:
JD Vance’s speech to the Munich Security Conference . . . mentioned the Romanian election twice and held it up as a cautionary tale of what can happen to societies that seek to coerce rather than persuade, suppress rather than debate.
Could American elections be canceled next? Some states came close in 2024 by attempting to remove from their ballots the candidate who eventually won the presidency. There was no uproar; the Supreme Court had to intervene. . . If enough panic is stirred up, canceling elections isn’t inconceivable.
Our legacy media have greeted Mr. Vance’s speech largely with disdain and horror. They are wrong. The speech is epic. It reminds Europeans and Americans that the values of the Enlightenment, as captured in our Constitution—not least the right to think, speak and debate freely—are the glue that binds us together. If we don’t defend those values, there isn’t much left worth defending.
Related
Missouri Attorney General Andrew Bailey announced today that the United States District Court for the Western District of Louisiana granted his motion to block top officials in the federal government from continuing to violate the First Amendment rights of millions of Americans. The judge’s ruling is 155 pages long and includes 721 footnotes.
The judge had harsh words for the federal officials. He noted that this is “the most massive attack against free speech in United States’ history,” that the Biden administration has “blatantly ignored the First Amendment’s right to free speech,” and that the Biden administration “almost exclusively targeted conservative speech.”
Attorney General Bailey’s motion for preliminary injunction, which he filed with Louisiana Attorney General Jeff Landry, highlighted over 1,400 facts from more than 20,000 pages of evidence exposing the vast censorship enterprise coordinated across multiples [SIC] agencies within the federal government. [reversed on standing grounds in Murthy v. Missouri (2024)]
SCOTUS denies review in ‘buffer zone’ abortion clinic protest cases
The case is Coalition Life v. City of Carbondale (Paul Clement, counsel for Petitioner). Earlier this week the Court denied review, with Justice Thomas dissenting (and with Justice Alito voting to grant certiorari). In this case, the Justices were invited to reconsider and reverse Hill v. Colorado.
Justice Clarence Thomas Below are a few excerpts from Justice Thomas’ dissent:
It is unclear what, if anything, is left of Hill. As lower courts have aptly observed, Hill is “incompatible” with our more recent First Amendment precedents. Price v. Chicago, 915 F. 3d 1107, 1117 (CA7 2019) (opinion of Sykes, J., joined by Barrett, J.). Start with McCullen v. Coakley, 573 U. S. 464 (2014). There, this Court unanimously held unconstitutional a Massachusetts law that prohibited anyone from entering a 35-foot buffer zone around an abortion facility. Id., at 471– 472, 497. In doing so, the Court determined that the law was content neutral because—rather than targeting certain kinds of speech such as protest, education, and counseling—the law prohibited virtually any speech within the buffer zone. Id., at 479. The Court made clear, however, that the law “would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message’” to determine whether the law applied. Ibid. That position is irreconcilable with Hill, which the Court did not even bother to cite.
Hill is likewise at odds with Reed v. Town of Gilbert, 576 U. S. 155 (2015). Reed involved a First Amendment challenge to a town’s sign code that regulated various categories of signs based on “the type of information they convey.” Id., at 159. Relying on Hill, the Ninth Circuit concluded that the sign code was content neutral, reasoning that the town “‘did not adopt its regulation of speech because it disagreed with the message conveyed’” and its “‘interests in regulat[ing] temporary signs are unrelated to the content of the sign.’” 576 U. S., at 162. That court then applied a lower level of scrutiny and upheld the code. Ibid. We reversed, holding that a speech regulation is content based—and thus “presumptively unconstitutional”—if it “draws distinctions based on the message a speaker conveys.” Id., at 163.
Our post-Reed decisions have firmly established Hill’s diminished status. In City of Austin, for example, the majority ran as far as it could from Hill, even though Hill was the one “case that could possibly validate the majority’s aberrant analysis” on the constitutionality of restrictions on bill-board advertising. 596 U. S., at 86, 102 (opinion of THOMAS, J.). The majority nonetheless insisted that any alleged similarity was “a straw man,” rejecting the notion that its opinion had “‘resuscitat[ed]’” Hill, and reminding readers that it did “not cite” the decision at all. 596 U. S., at 76. Our latest word on Hill—expressed in a majority opinion joined by five Members of this Court—is that the decision “distorted [our] First Amendment doctrines.” Dobbs, 597 U. S., at 287, and n. 65. If Hill’s foundation was “deeply shaken” before Dobbs, see Price, 915 F. 3d, at 1119, the Dobbs decision razed it.
[ . . . ]
Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty.
The Court also denied review in Turco v. City of Englewood, New Jersey (another abortion “buffer zone” case) (Justices Thomas and Alito voted to grant the petition).
Defendants’ motion to dismiss complaint in Iowa pollster ‘fraud’ case
The plaintiffs “can no more sue a newspaper pollster for diverted resources than a farmer could sue a TV weatherman for crop damage due to unexpected frost.”
Below are a few excerpts from the motion to dismiss in Trump v. Selzer (US Dist. Ct., S. Dist., Iowa, Case 4:24-cv-00449-RGE-WPK: Feb. 21) (Robert Corn-Revere, lead counsel for Defendants):
Robert Corn-Revere, lead counsel for Defendants. Introduction
Plaintiffs’ claims are barred by the First Amendment and the Court should dismiss them with prejudice. In the United States there is no such thing as a claim for “fraudulent news.” No court in any jurisdiction has ever held such a cause of action might be valid, and few plaintiffs have ever attempted to bring such outlandish claims. Those who have were promptly dismissed. [citations]
There is good reason for this. History’s judgment repudiated the 1798 Sedition Act which prohibited “false, scandalous and malicious . . . writings against the government of the United States” or its president, and that fraught episode “first crystallized a national awareness of the central meaning of the First Amendment.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964). Since then, courts at all levels have confirmed our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” id. at 270, holding that speech is presumptively protected unless it falls within one of a few limited and narrowly defined categories. United States v. Stevens, 559 U.S. 460, 468–70 (2010). Those categories do not include a general exception for “false speech,” United States v. Alvarez, 567 U.S. 709, 722 (2012).
Plaintiffs seek to illegitimately expand them to include “fake news,” a tag line that may play well for some on the campaign trail but has no place in America’s constitutional jurisprudence. In this regard, civil damages, no less than criminal sanctions, cannot lie against protected speech. Snyder v. Phelps, 562 U.S. 443 (2011); Sullivan, 376 U.S. at 277.
Even if such a cause of action existed, the Amended Complaint is fatally flawed on every level: Plaintiffs fail at the threshold to allege any recoverable damages, and do not state plausible claims, either on the law or on the facts as alleged. No court has ever accepted claims like these, and this Court should not be the first.
[ . . . ]
Plaintiffs Illegitimately Seek to Create a New First Amendment Exception.
Mr. Trump and his co-plaintiffs assume “false news” falls outside the First Amendment’s protection, but over 200 years of American free speech law and practice prove otherwise.
“Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker.” Id. at 271.
As the Supreme Court recently explained, “[o]ur constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” Alvarez, 567 U.S. at 723.
“From 1791 to the present . . . the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never include[d] a freedom to disregard these traditional limitations.” Stevens, 559 U.S. at 468 (cleaned up). These “historic and traditional categories long familiar to the bar” include obscenity, child pornography, defamation, fraud, incitement, fighting words, and speech integral to criminal activity. Id. (cleaned up) (collecting cases). Former Justice Souter observed that “[r]eviewing speech regulations under fairly strict categorical rules keeps the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said.” Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 774 (1996) (Souter, J., concurring). Consequently, the Court steadfastly resists efforts to increase or expand the boundaries of these categories as “startling and dangerous” and has rejected any “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” Stevens, 559 U.S. at 470, 472.
Plaintiffs try to shoehorn their claims into an existing category by calling the Iowa Poll “fake” and asserting actionable “fraud” occurred. But “in the famous words of Inigo Montoya from the movie The Princess Bride, ‘You keep using that word. I do not think it means what you think it means.’” [citation] As a matter of basic law, Plaintiffs’ allegations about polls and news stories they dislike have nothing to do with fraud. [reference] I.B. They also sprinkle the complaint with loose talk of “election interference,” [citation], although they stop short of including a separate claim on that basis, perhaps out of awareness that “no court has held that a scheme to rig an election itself constitutes money or property fraud.” [citation]
Categories of unprotected speech are defined by precise legal tests, and Plaintiffs cannot stretch those boundaries to serve a political narrative. The Supreme Court routinely rejects attempts to broaden those limits based on assertions that the speech at issue is somehow “like” a recognized exception. See, e.g., Stevens, 559 U.S. at 470–71 (Other “descriptions are just that— descriptive. They do not set forth a test that may be applied as a general matter . . . .”); Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 793–96 (2011) (rejecting “attempt to shoehorn speech about violence into obscenity,” citing a lack of “longstanding tradition in this country” restricting such speech); Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 55–56 (1988) (rejecting bid to leave “outrageous” speech unprotected because it “does not seem to us to be governed by any exception to the . . . First Amendment”); Alvarez, 567 U.S. at 721–22 (“The Government has not demonstrated that false statements . . . should constitute a new category of unprotected speech” based on a “tradition of proscription.”) (quotation omitted).
Because the categories are governed by history and tradition, the Plaintiffs could not have chosen a worse candidate for inclusion than “fake news.” America’s first experience with prohibiting false news — the Sedition Act of 1798 — expired under its own terms, and all fines assessed under that misbegotten law were remitted. President Thomas Jefferson denounced it as an unconstitutional “nullity, as absolute and palpable as if Congress had ordered us to fall down and worship a golden image.” Sullivan, 376 U.S. at 272–76. While the Supreme Court never adjudicated the Sedition Act’s attempt to punish “false” writings about public officials, “the attack upon its validity has carried the day in the court of history,” defined “the central meaning of the First Amendment,” id., and conditioned “the fabric of jurisprudence woven across the years.” [citation]
Plaintiffs’ quest to punish “fake news” not only ignores this history, it also fumbles the conceptual basis for unprotected speech categories, which the Court first described as speech “of slight social value.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Here, Plaintiffs seek to create a new First Amendment exception for speech that has always received the highest level of constitutional protection — political speech and commentary. In a word, it just doesn’t fit.
The Supreme Court has repeatedly reaffirmed that the First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Citizens United v. FEC, 558 U.S. 310, 339 (2010) (citation omitted). Speech about the political process is “at the core of our First Amendment freedoms,” Republican Party of Minn. v. White, 536 U.S. 765, 774 (2002), because a “major purpose” of the First Amendment was to protect “free discussion of . . . candidates.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Accordingly, the “First Amendment affords the broadest protection” to “[d]iscussion of public issues and debate on” the political process. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995) (citation omitted). Political polling is “speech protected by the First Amendment” both because it “requires a discussion between pollster and voter” and the resulting poll itself “is speech.” [citation]
The First Amendment accords speech in this area wide berth because “erroneous statement[s] [are] inevitable in free debate, and [they] must be protected if the freedoms of expression are to have the breathing space that they need to survive.” Sullivan, 376 U.S. at 271– 72 (cleaned up). Efforts to regulate “truth” in political commentary are thus presumptively unconstitutional and subject to strict scrutiny. [citations] Bottom line, political polls and news reports are not the stuff of which First Amendment exceptions are made.
Related
The Associated Press sues Trump administration
The Associated Press sued three Trump administration officials Friday over access to presidential events, citing freedom of speech in asking a federal judge to stop the 10-day blocking of its journalists.
[ . . . ]
The AP says its case is about an unconstitutional effort by the White House to control speech — in this case refusing to change its style from the Gulf of Mexico to the “Gulf of America,” as President Donald Trump did last month with an executive order. “The press and all people in the United States have the right to choose their own words and not be retaliated against by the government,” the AP said in its lawsuit, which names White House Chief of Staff Susan Wiles, Deputy Chief of Staff Taylor Budowich and Press Secretary Karoline Leavitt.
Emergency hearing request and motion in opposition
- Associated Press v. Budowich (Dist. Ct., Dist. of Col., Feb. 21, (case No. 25-0532 (TNM)) (Jay Ward Brown, counsel for plaintiff))
- Associated Press v. Budowich (Dist. Ct., Dist. of Col., Feb. 24, (case No. 25-0532 (TNM)) (Edward R. Martin, Jr., US Atty., Defendants’ Opposition to Plaintiff’s Motion for a Temporary Restraining Order))
Related
Executive Watch
- Adam Gabbatt, “‘A true free-speech emergency’: alarm over Trump’s ‘chilling’ attacks on media,” The Guardian (Feb. 24)
- Colin Kalmbacher, “‘Textbook viewpoint-based discrimination’: Judge says Trump’s anti-DEI orders violate First Amendment and are ‘unconstitutionally vague’ — issues nationwide injunction,” Law & Crime (Feb. 22)
- Karoline Leavitt, “CPAC interview gives reaction to Associated Press lawsuit against Trump officials,” Palm Beach Post (Feb. 22) (see also: “Kaitlin Collins Questions Karoline Leavitt”)
- T. Scott Kelly, Nonnie L. Shivers, and Zachary V. Zagger, “Federal Court Preliminarily Blocks Key Parts of President Trump’s Orders Restricting DEI at Private Employers,” Ogletree Deakins (Feb. 22) (See also: National Urban League v. Trump (Feb. 19, case # 1:25-cv-00471))
WATCH VIDEO: Trump escalates attacks on the free press - Joseph A. Wulfsohn, “FBI Director Kash Patel tells media ‘bring it on’ in stern message after being sworn into office,” Fox News (Feb. 21)
- JT Morris and Will Creeley, “US Attorney Ed Martin’s bully tactics have no place in America,” FIRE (Feb. 21)
- David A. Graham, “The Free-Speech Phonies,” The Atlantic (Feb. 20)
- Zane McNeill, “Pentagon Schools Pull JD Vance’s Memoir Amid Trump-Era Book Purge,” Truthout (Feb. 20)
- Mark Hertsgaard and Kyle Pope, “The First Amendment vs. the Wannabe King,” The Nation (Feb. 20)
- Becca Monagham, “Elon Musk finds ‘new level of hypocrisy’ with two contradictory posts about free speech just hours apart,” indy100 (Feb. 18)
- Craig Aaron, “Free Speech Is Under Attack. Here’s What I Want Congress to Know,” The Free Press (Feb. 14)
- Joseph A. Wulfsohn and Brooke Singman, “Trump scores big legal win against Pulitzer Prize board members as lawsuit moves to discovery,” Fox News (Feb. 3)
Forthcoming scholarly article: Lakier & Douek on stalking and the First Amendment
Professors Genevieve Lakier (left) and Evelyn Douek (right) In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But this is puzzling because Counterman was not in fact convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone in order to be guilty of the crime.
This Article argues that the Supreme Court’s confusion about the most basic facts of the case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence. These pathologies are a consequence of the impoverished view of the First Amendment’s boundaries depicted in the Court’s recent decisions, which suggest that the First Amendment’s doctrinal terrain can be described by a simple list of historically unprotected categories.
This thin account of the First Amendment, and the doctrinal distortions it creates, are not inevitable, however. The Article argues for an alternative, more multi-dimensional approach to the question of the First Amendment’s boundaries — one that rests on a richer understanding of the traditions of speech regulation in the United States — and sketches out its implications for the law of stalking and, potentially, many other areas of free speech law. Courts do not need to deny the facts of the cases they adjudicate to craft a First Amendment jurisprudence that is doctrinally coherent, historically informed, and normatively desirable.
‘So to Speak’ podcast: Corn-Revere and London on censorship at home and abroad
From JD Vance’s free speech critique of Europe to the Trump administration barring the Associated Press from the Oval Office, free speech news is buzzing. General Counsel Ronnie London and Chief Counsel Bob Corn-Revere unpack the latest developments.
More in the News
- Greg Lukianoff, “AI regulation looms in the U.S., free speech crises in Europe, confiscated art in Texas, the ‘Coddling’ documentary turns one, & more!,” The Eternally Radical Idea (Feb. 23)
- Susanna Granieri, “FIRE’s Greg Greubel on a Student’s Right to Free Expression Online,” First Amendment Watch (Feb. 21)
- Cynthia Fleming Crawford, “Narrow Applicability Is Not the Same as Narrow Tailoring: Applying the First Amendment in First Choice Women’s Resource Centers v. Platkin,” The Federalist Society (Feb. 21)
- Kenneth Roth, “How do we defend free speech – without falling prey to extremism?” The Guardian (Feb. 21)
- Eric Heinze, “Censorship, abortion and the ‘threat within’: what a free speech expert thinks of J.D. Vance’s remarks to Europe,” The Conversation (Feb. 20)
- “Mississippi Judge Ordered Newspaper to Remove Editorial, Outraging Press Advocates,” Associated Press / First Amendment Watch (Feb. 20)
- Gwyneth K. Shaw, “Professor Urges Supreme Court to Correct Ruling That ‘Turns First Amendment Precedent on Its Head’,” UC Berkeley Law (Dec. 5)
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
Last scheduled FAN
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.
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Ilya Shapiro is back . . . with a new book — First Amendment News 458
I never intended to become a poster boy for cancel culture. Nor do I intend to let those four months of Georgetown farce define my life or career. But I’m using this chance to expose the institutional rot in academia and trace it to the illiberal winds blowing across America.
Those words are from Ilya Shapiro’s latest book, about which more will be said in a moment. But a few “set up” words first.
Today, Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. Previously he was executive director and senior lecturer at the Georgetown Center for the Constitution, and before that a vice president of the Cato Institute and director of Cato’s Robert A. Levy Center for Constitutional Studies. And as before, Shapiro continues to file briefs in the U.S. Supreme Court.
Ilya Shapiro speaking at the 2016 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. (Gage Skidmore / Flickr.com) But his today comes against the backdrop of a quarrelsome yesterday involving a ‘cancel culture’ dispute at Georgetown Law School where he was slated to work with Professor Randy Barnett and others at the School’s Center for the Constitution. But things started to go south after Shapiro wrote that “we’ll get lesser black woman” instead of Biden’s pick of Judge Sri Srinivasan. He later apologized. Following a four-month law school investigation, Shapiro was reinstated, only thereafter to resign on June 6, 2022:
After full consideration of the report of the Office of Institutional Diversity, Equity, and Affirmative Action (“IDEAA Report”), and upon consultation with counsel, family, and trusted advisers, it has become apparent that my remaining at Georgetown has become untenable. Although I celebrated my “technical victory” in the Wall Street Journal, further analysis shows that you’ve made it impossible for me to fulfill the duties of my appointed post.
[ . . . ]
I cannot again subject my family to the public attacks on my character and livelihood that you and IDEAA have now made foreseeable, indeed inevitable. As a result of the hostile work environment that you and they have created, I have no choice but to resign.
Ilya Shapiro resigns from Georgetown following reinstatement after 122-day investigation of tweets
News
After a more than four-month investigation that led to his reinstatement last week, Ilya Shapiro resigned today from Georgetown University Law Center.
In the midst of the controversy, FIRE’s Greg Lukianoff and Adam Goldstein wrote:
Shapiro’s targeting marks the 10th attempt to get a professor sanctioned for ideological reasons at Georgetown University since 2015. Five attempts have been successful, with sanctions involving investigation, resignation, suspension and termination. . . . Higher education’s credibility rests on the public belief that it is a place where all sides of every argument are subject to robust debate, disputation and discussion. If it becomes clear that these discussions are impossible on campuses, the reputation of higher education — and the shared world of facts it was intended to create — will suffer.
And now on to Shapiro’s new book. It is titled “Lawless: The Miseducation of America’s Elites” and it’s already getting ample notice from publications ranging from The Volokh Conspiracy to the Hugh Hewitt show, including a recent podcast exchange with Nico Perrino on “So to Speak”:
The publisher’s summary:
In the past, Columbia Law School produced leaders like Franklin Delano Roosevelt and Ruth Bader Ginsburg. Now it produces window-smashing activists.
When protestors at Columbia broke into a building and created illegal encampments, the student-led Columbia Law Review demanded that finals be canceled because of “distress.”
Law schools used to teach students how to think critically, advance logical arguments, and respect opponents. Now those students cannot tolerate disagreement and reject the validity of the law itself. Rioting Ivy Leaguers are the same people who will soon:
- Be America’s judges, DAs, and prosecutors
- File and fight constitutional lawsuits
- Advise Fortune 500 companies
- Hire other left-wing diversity candidates to staff law firms and government offices
- Run for higher office with an agenda of only enforcing laws that suit left-wing whims
In Lawless, Ilya Shapiro explains how we got here and what we can do about it. The problem is bigger than radical students and biased faculty — it’s institutional weakness. Shapiro met the mob firsthand when he posted a controversial tweet that led to calls for his firing from Georgetown Law. A four-month investigation eventually cleared him on a technicality but declared that if he offended anyone in the future, he’d create a “hostile educational environment” and be subject to the inquisition again. Unable to do the job he was hired for, he resigned.
This cannot continue. In Lawless, Shapiro reveals how the illiberal takeover of legal education is transforming our country. Unless we stop it now, the consequences will be with us for decades.
A few selected quotes:
- Is there anything we can do to stop or reverse . . . ill liberal tendencies? Should we — those of us who care about universities’ traditional truth-seeking mission and law schools’ commitment to the American constitutional order — just throw up our hands, gird our loins, and regroup to fight elsewhere? Surely we need to develop novel responses to heterodox challenges, ones that involve culture, legislation, and institution building.
- The real issue here is taking exclusionary action — real discrimination, not a mere assertion that someone’s position on Israel (or anything) is ‘harmful’ or denies someone’s right to exist.
- More than a 100 institutions have endorsed a version of the Report of the Committee on Freedom of Expression at the University of Chicago (known as the Chicago Statement), which is the gold standard. The problem is that, as I experienced personally, so many of these speech-and-expression policies aren’t worth the paper (or pixels) they’re written on, falling by the wayside when seeming to conflict with the demands of DEI.
- Cancellation victims, and others who make national news are the tip of the iceberg. As we see from survey results, self-censorship pervades academia, detracting from any intellectual mission, to say the least. Knowledge is never developed, and many old-school professors leave academia entirely — such as the famed First Amendment scholar Eugene Volokh’s move from the UCLA school of law to the Hoover Institution and the early retirement of five right-of-center law professors from the University of San Diego (which used to be a bastion of originalism). Universities are at best failing to resist these illiberal forces and at worst encouraging them.
Shapiro’s four main recommendations in “Lawless”:
- Abolish DEI bureaucracies
- End mandatory diversity training
- Stop political coercion
- End identity-based preferences.
Related
WATCH VIDEO: Gaza protesters disrupt UC Berkeley dean’s party, triggering responses over free speech. Forthcoming book on ideology, science, and free speech
An unparalleled group of prominent scholars from wide-ranging disciplines detail ongoing efforts to impose ideological restrictions on science and scholarship throughout western society.
From assaults on merit-based hiring to the policing of language and replacing well-established, disciplinary scholarship by ideological mantras, current science and scholarship is under threat throughout western institutions.
As this group of prominent scholars ranging across many different disciplines and political leanings detail, the very future of free inquiry and scientific progress is at risk. Many who have spoken up against this threat have lost their positions, and a climate of fear has arisen that strikes at the heart of modern education and research. Banding together to finally speak out, this brave and unprecedented group of scholars issues a clarion call for change.
“Higher education isn’t what it used to be. Cancel Culture and DEI have caused many to keep their mouths shut. Not so the authors of this book. This collection of essays tells of threats to open inquiry, free speech, and the scientific process itself. A much-needed book.” — Sabine Hossenfelder, Physicist and Author of Existential Physics: A Scientist’s Guide to Life’s Biggest Questions
Campus speech conflicts continue
Campus free speech podcasts
In recent weeks, the Academic Freedom Podcast has released two new episodes focusing on campus free speech issues.
First up was a conversation with Timothy Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School. He is the author most recently of Managed Dissent: The Law of Public Protests. The episode focuses on the law surrounding public protests on and off college campuses.
Next was a conversation with Jennifer Ruth and Michael Berube about their recent book, It’s Not Free Speech: Race, Democracy, and the Future of Academic Freedom. They are both long-serving leaders in the American Association of University Professors, and the book develops a provocative proposal for patrolling the acceptable boundaries of extramural speech by university faculty.
More to come.
White House Associated Press controversy
The White House barred a credentialed Associated Press reporter and photographer from boarding the presidential airplane Friday for a weekend trip with Donald Trump, saying the news agency’s stance on how to refer to the Gulf of Mexico was to blame for the exclusion. It represented a significant escalation by the White House in a four-day dispute with the AP over access to the presidency.
The administration has blocked the AP from covering a handful of events at the White House this week, including a news conference with India’s leader and several times in the Oval Office. It’s all because the news outlet has not followed Trump’s lead in renaming the body of water, which lies partially outside U.S. territory, to the “Gulf of America.”
Volokh weighs in on AP exclusion controversy
[1.] The Administration has no First Amendment obligation to provide any press conferences or interviews. The question, though, is whether, once it starts doing that, it may exclude the press based on its viewpoint, or on its supposedly unfair coverage, or on its use of terms that are seen as expressing a viewpoint.
[2.] It seems pretty clear that government officials can choose — including in viewpoint-based ways — whom they will sit down with for interviews. The President may choose to give interviews to journalists whose views he likes, and to refuse to speak with those whose views he dislikes. Indeed, a government official may even order employees not to talk to certain reporters, without thereby violating the reporters’ rights. Baltimore Sun v. Ehrlich (4th Cir. 2006).
[ . . . ]
[3.] It also seems pretty clear that government officials, even in large press conferences, can choose to ignore questions that express views they dislike, or to ignore questioners who have expressed those views. . .
[4.] This having been said, there are precedents (Sherrill, TGP, and John K. Maciver Inst. for Public Policy v. Evers (7th Cir. 2021)) that recognize a right not to be excluded based on viewpoint from large press conferences that are generally open to a wide range of reporters. Those precedents treat those press conferences more or less like “limited public fora” or “nonpublic fora” — government property where the government may impose viewpoint-neutral restrictions but not viewpoint-based ones.
[ . . . ]
[5.] But what about in-between events, which are open only to a small set of reporters? Air Force One apparently has 13 press seats, and I take it the Oval Office is likewise limited.
[ . . . ]
[6.] So I think that for Air Force One and Oval Office appearances, the best I can say is that the First Amendment analysis is unsettled.
FIRE weighs in on AP exclusion controversy
As one federal court proclaimed, “Neither the courts nor any other branch of the government can be allowed to affect the content or tenor of the news by choreographing which news organizations have access to relevant information.”
And because denying press access involves the potential deprivation of First Amendment rights, any decision about who’s in or out must also satisfy due process. That means the government must establish clear, impartial criteria and procedures, and reporters must receive notice of why they were denied access and have a fair opportunity to challenge that decision.
The AP — a major news agency that produces and distributes reports to thousands of newspapers, radio stations, and TV broadcasters around the world — has had long-standing access to the White House. It is now losing that access because its exercise of editorial discretion doesn’t align with the administration’s preferred messaging.
That’s viewpoint discrimination, and it’s unconstitutional.
This isn’t the first time the White House has sent a journalist packing for reporting critically, asking tough questions, or failing to toe the government line. During Trump’s first term, the White House suspended CNN reporter Jim Acosta’s press pass after he interrogated the president about his views on immigration. After the network sued, a federal court ordered the administration to restore Acosta’s pass.
Related
Sean ‘Diddy’ Combs sues NBC
Sean “Diddy” Combs is suing NBC Universal over a documentary that he says falsely accuses him of being a serial murderer who had sex with underage girls as he awaits trial on federal sex trafficking charges.
The lawsuit filed Wednesday in New York state court says the documentary, “Diddy: Making of a Bad Boy,” included statements that NBC Universal either knew were false or published with reckless disregard for the truth in order to defame the founder of Bad Boy Records.
“Indeed, the entire premise of the Documentary assumes that Mr. Combs has committed numerous heinous crimes, including serial murder, rape of minors, and sex trafficking of minors, and attempts to crudely psychologize him,” the complaint reads. “It maliciously and baselessly jumps to the conclusion that Mr. Combs is a ‘monster’ and ‘an embodiment of Lucifer’ with ‘a lot of similarities’ to Jeffrey Epstein.”
Executive Watch
- Ross A. Lincoln, “3 Former FCC Bosses Condemn New Chairman’s Attacks on Press: ‘If We Lose the First Amendment We’ve Lost Everything’,” The Wrap (Feb. 18)
- Sarah McLaughlin, “60 Minutes and Vice President Vance put Europe’s worrying speech restrictions into the spotlight: Vance warns Europe against censorship as President Trump pursues critics here at home,” FIRE (Feb. 18)
- Jennifer L. Richter, Douglas I. Brandon, Steven A. Rowings, Virginia Hiner Antypas, Joseph S. Calascione, and Sharanya Sriram, “President Trump’s Executive Order Takes Aim at Social Media, Broadcasters,” Akin (Feb. 18)
- Rex Huppke, “Trump bans AP and words he doesn’t like. ‘Free speech’ was never about First Amendment,” USA Today (Feb. 16)
- Steff Danielle Thomas, “Trump defends Vance’s stance on censorship overseas: ‘Europe has to be careful’,” The Hill (Feb. 15)
- “Republican senator defends VP Vance’s free speech comments,” Fox News (Feb. 15)
- Leah Sarnoff, Mark Crudele, Aaron Katersky, and Kiara Alfonseca, “Transgender references removed from Stonewall National Monument website,” ABC News (Feb. 14)
WATCH VIDEO: Trump says freedom of speech under threat in Europe | AFP - Nick Paton Walsh, “Vance uses half-truths to lecture a European audience well aware of the threat of authoritarian rule,” CNN World (Feb. 14)
- David Bauder, “White House says it has the right to punish AP reporters over Gulf naming dispute,” Free Speech Center (Feb. 13)
- Trevor Timm, “Legendary First Amendment lawyer urges press to fight Trump’s attacks,” Freedom of the Press Foundation (Feb. 12)
- Jacob Mchangama, “Trump’s Free Speech Shell Game: Bold Promises, Troubling Actions,” The Bedrock Principle (Feb. 10)
- Kate Ruane, “When it Comes to Free Speech, the Trump Administration Should Follow Its Own Order,” Center for Democracy & Technology (Feb. 10)
- Darlene Superville and Joshua Goodman, “Trump Order Imposes Sanctions on ICC Over Investigations of Israel,” Associated Press/First Amendment Watch (Feb.7)
- “Trump on Surveillance, Protest, and Free Speech,” ACLU (2025)
Secretary Rubio on free speech and the Holocaust
WATCH VIDEO: Marco Rubio slams CBS journalist for suggesting free speech caused the Holocaust. More in the news
- “Bakery owner sues New Hampshire city, claiming First Amendment violations,” NewsNation (Feb. 18)
- Debra J. Saunders, “How SNL Proved Left Not 1st Amendment’s Champion,” Newsmax (Feb. 18)
- John Coleman, “Wave of state-level AI bills raise First Amendment problems,” FIRE (Feb. 13)
- Laurie Kellman, “The Relationship Between the White House and Its Press Corps Can Be Contentious,” Associated Press/First Amendment Watch (Feb. 13)
- John Coleman, “FIRE opposes Virginia’s proposed regulation of candidate deepfakes,” FIRE (Feb. 13)
- “Can the SEC Permanently Silence Critics? (Powell, et al. v. SEC),” Institute for Free Speech (Feb. 13)
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
Last scheduled FAN
FAN 457: “Timothy Zick’s ‘Executive Watch’: Introduction”
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.
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White House barring AP from press events violates the First Amendment
A widening gulf has opened between the Trump administration and the Associated Press.
Which gulf?
Precisely.
On Tuesday, the AP said the White House blocked one of its reporters from attending an event in the Oval Office because the outlet continues to use the name Gulf of Mexico in its reporting. This, despite President Donald Trump’s recent executive order renaming it the Gulf of America.
After Trump signed that order, the AP announced it would continue referring to the gulf by its original name “while acknowledging the new name Trump has chosen.” It did so in part because the gulf borders other countries that don’t recognize the name change. (The AP did update its Stylebook to reflect Trump’s separate decision to revert the name of North America’s highest mountain, which President Obama changed to the native moniker Denali, to Mount McKinley because that “area lies solely in the United States.”)
In a Wednesday briefing, Press Secretary Karoline Leavitt confirmed the AP’s allegations:
I was very up front in my briefing on day one that if we feel that there are lies being pushed by outlets in this room, we are going to hold those lies accountable. And it is a fact that the body of water off the coast of Louisiana is called the Gulf of America.
The standoff continues — and has escalated beyond Oval Office events. Last night, the White House blocked the AP from an open press conference featuring Trump and Indian Prime Minister Narendra Modi.
FIRE issued a statement condemning the administration’s actions, which have drawn criticism from press freedom groups, pundits, and politicians across the political spectrum.
In a letter to White House Chief of Staff Susie Wiles, AP Executive Editor Julie Pace called the administration’s actions “viewpoint discrimination based on a news organization’s editorial choices and a clear violation of the First Amendment.”
She’s right.
To be sure, the First Amendment does not require the White House to open its doors to the media or hold press conferences. Nor does the president have to do a one-on-one interview with CNN just because he did one with Fox News. But court decisions spanning decades make clear that once the government grants media access, it has to play by constitutional rules.
That doesn’t mean the White House has to allow every reporter in the world into the Oval Office or briefing room. Space constraints obviously make that impossible, and not every journalist will manage to secure a press pass. But the reason for denying access matters. When the government shuts out journalists explicitly because it dislikes their reporting or political views, that violates the First Amendment.
As one federal court proclaimed, “Neither the courts nor any other branch of the government can be allowed to affect the content or tenor of the news by choreographing which news organizations have access to relevant information.”
And because denying press access involves the potential deprivation of First Amendment rights, any decision about who’s in or out must also satisfy due process. That means the government must establish clear, impartial criteria and procedures, and reporters must receive notice of why they were denied access and have a fair opportunity to challenge that decision.
The AP — a major news agency that produces and distributes reports to thousands of newspapers, radio stations, and TV broadcasters around the world — has had long-standing access to the White House. It is now losing that access because its exercise of editorial discretion doesn’t align with the administration’s preferred messaging.
That’s viewpoint discrimination, and it’s unconstitutional.
This isn’t the first time the White House has sent a journalist packing for reporting critically, asking tough questions, or failing to toe the government line. During Trump’s first term, the White House suspended CNN reporter Jim Acosta’s press pass after he interrogated the president about his views on immigration. After the network sued, a federal court ordered the administration to restore Acosta’s pass.
But court decisions spanning decades make clear that once the government grants media access, it has to play by constitutional rules.
Democratic administrations have also unacceptably targeted disfavored outlets for exclusion. The Obama administration tried to exclude Fox News from a press pool because of displeasure with its coverage. Obama’s deputy press secretary Josh Earnest said at the time, “We’ve demonstrated our willingness and ability to exclude Fox News from significant interviews.”
Similar attacks on press freedom happen at all levels of government. In 2022, FIRE filed an amicus curiae — “friend of the court” — brief in a First Amendment lawsuit challenging vague and arbitrary press pass rules that Arizona elections officials used to block a Gateway Pundit journalist from press conferences. The officials didn’t like the conservative journalist’s political views or negative coverage, including his “inflammatory and/or accusatory language.” After the U.S. Court of Appeals for the Ninth Circuit initially ruled in favor of The Gateway Pundit, the outlet received a $175,000 settlement.
The current spat over naming conventions for a body of water may seem trivial. But it sends a chilling message to all journalists that White House access hinges on whether the president approves of their reporting. Left unchecked, such a precedent opens the door to broader efforts to manipulate public discourse and undermine press freedom. What other “lies” might the Trump administration hold media outlets “accountable” for? Could scrutiny of its immigration policies, economic performance, or claims about election integrity be next?
The characterization of the AP’s editorial style choice as a “lie” shows the danger of empowering the state to police mis- or disinformation. The Chinese government might say the same about anyone who calls a certain territory “Taiwan” instead of the “Republic of China” or “Chinese Taipei.” To a government official with a misinformation hammer, every deviation from official messaging looks like a nail. We saw enough misguided attempts to police “misinformation” during the Biden administration. Let’s leave that behind.
In an executive order signed the same day as the one renaming the gulf, Trump promised to “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.” That’s a good policy, and the administration should stick to it — the First Amendment requires no less.
Any government attempt to control the flow of information strikes a blow at the First Amendment. A free press performs a vital democratic function — gathering, curating, and delivering information, which we can then evaluate for ourselves. Without the Fourth Estate acting as a crucial check on government power, we’ll know less about what our elected officials are up to, and face greater difficulty holding them accountable.
The beauty of this country’s ideologically diverse media landscape is that if you distrust a particular source, countless others are available offering different information and perspectives. Preserving this rich information ecosystem demands constant vigilance against any threats to free speech and a free press, regardless of who the target is. The alternative — no matter what name you give it — is censorship.