A federal judge in Massachusetts has issued a preliminary injunction halting President Donald Trump’s executive order to dismantle the U.S. Department of Education, dealing a significant blow to the administration’s efforts to eliminate the federal agency.
District Court Judge Myong J. Joun on last Thursday blocked Trump and Education Secretary Linda McMahon from carrying out the executive order and ordered the administration to reinstate approximately 1,300 Education Department employees who were terminated in March as part of a sweeping reduction-in-force.
The ruling comes in response to consolidated lawsuits filed by a coalition of 20 states, the District of Columbia, educator unions, and school districts challenging the administration’s moves to shrink and eventually close the department.
When Trump took office in January, the Education Department employed 4,133 workers. The reduction-in-force announced March 11 terminated more than 1,300 positions, while nearly 600 additional employees chose to resign or retire, leaving roughly 2,180 remaining staff—approximately half the department’s original size.
In his ruling, Judge Joun wrote that “a department without enough employees to perform statutorily mandated functions is not a department at all,” adding that the court “cannot be asked to cover its eyes while the Department’s employees are continuously fired and units are transferred out until the Department becomes a shell of itself.”
The judge also prohibited Trump from transferring management of the federal student loan portfolio and special needs programs to other federal agencies, as the president had pledged to do from the Oval Office.
Judge Joun determined that the Trump administration likely violated the separation of powers by taking actions that conflicted with congressional mandates. He noted the administration had failed to demonstrate that the staff reductions actually improved efficiency, writing that “the record is replete with evidence of the opposite.”
The plaintiffs argued that the department could no longer fulfill critical duties, including managing the $1.6 trillion federal student loan portfolio serving roughly 43 million borrowers and ensuring colleges comply with federal funding requirements.
The American Association of University Professors (AAUP), which joined the legal challenge alongside other educator groups, praised the ruling as a crucial victory for higher education access.
“The AAUP is thrilled that District Judge Joun has blocked Trump’s illegal attempt to gut the Department of Education and lay off half of its workforce,” said AAUP President Dr. Todd Wolfson. “Eliminating the ED would hurt everyday Americans, severely limit access to education, eviscerate funding for HBCUs and TCUs while benefiting partisan politicians and private corporations looking to extract profit from our nation’s higher education system.”
American Federation of Teachers President Randi Weingarten called the decision “a first step to reverse this war on knowledge and the undermining of broad-based opportunity.”
The Education Department’s deputy assistant secretary for communications, Madi Biedermann, criticized the ruling in a statement, calling Judge Joun a “far-left Judge” who “dramatically overstepped his authority” and vowed to “immediately challenge this on an emergency basis.”
The case, Somerville Public Schools v. Trump, represents the consolidation of two separate lawsuits filed in March. Democracy Forward is representing the coalition of plaintiffs, which includes the AAUP, Somerville Public School Committee, Easthampton School District, Massachusetts AFT, AFSCME Council 93, and the Service Employees International Union.
The ruling temporarily halts one of the Trump administration’s most ambitious efforts to reshape federal education policy, though the legal battle is expected to continue as the administration pursues its appeal.
“It was nearly impossible to get anyone on camera for this story [on Trump’s attacks on lawyers and law firms], because of the fear now running through our system of justice.” — Scott Pelle, “60 Minutes” (May 4)
That observation prompted my colleague, Angel Eduardo, to caution that we are now in “uncharted and horrifying territory” — a territory governed by coerced compliance. Against that backdrop comes the latest installment of Executive Watch, authored by Professor Timothy Zick.
In the weeks and months ahead, more FAN posts will appear discussing yet other First Amendment issues related to the Trump administration, its executive orders, and related matters. If this seems excessive, it is because (as Zick and I discuss in a forthcoming scholarly article) the suppressive actions taken by this administration are unprecedented in both their breadth and depth.
Vigilance in the service of freedom is no vice, and apathy in response to despotism is no virtue.
Related
Professor Zick’s post is set out below followed by a few news items, including two new federal district court rulings involving First Amendment challenges to anti-DEI executive orders and a NYU Law School item about punishing protestors. — rklc
During his first term as president, Donald Trump signaled that he was not committed to pluralism and expressive liberty when it came to matters like patriotism, public protest, and other forms of dissent. During his second term, Trump has issued multiple executive orders that attempt to impose official orthodoxies or understandings regarding race, gender, patriotism, and other subjects.
My previous post explained how Trump has used executive orders to instigate a whole-of-government assault on free speech, and how that campaign has affected nearly every corner of American life. This post focuses on how Trump has used executive orders to try to purge concepts and ideas from public and private realms and to dictate what is orthodox when it comes to matters Americans sharply disagree on.
Many of Trump’s orders are not only viewpoint discriminatory; their expressly stated purpose is to eradicate certain ideas or ideologies and replace them with officially approved alternatives. Although they seek to impose official ideologies by striking disfavored ideas or concepts, many of the Orders utterly fail to define key concepts, including “diversity, equity, and inclusion (DEI),” “discriminatory equity ideology,” “radical gender ideology,” and “hateful ideology.”
As I explained in my previous installment, such glaring vagueness has a real chilling effect. Faced with losses of many billions in funding or revenue, or with ruinously expensive investigations or prosecutions, many have decided to capitulate or over-comply, scrubbing any potentially offending terms and concepts from trainings, lectures, websites, and other fora.
In 1943, the Supreme Court decided West Virginia State Board of Education v. Barnette, which invalidated a state law mandating that students salute the flag and recite the Pledge of Allegiance at the beginning of each school day. In an iconic and justly famous opinion, Justice Robert H. Jackson wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Trump’s use of executive orders to impose or coerce adoption of official orthodoxies or views is contrary to a foundational First Amendment principle: The government cannot dictate to Americans what ideas they can support or promote or what they believe.
President Trump’s orthodoxies
Presidents have historically used executive orders to change policies and priorities regarding a wide range of matters, from the scope of anti-discrimination laws, to matters relating to service in the military, to the protection of religious or other liberties. For example, a president might instruct executive agencies to adopt specific legal or policy positions on enforcement of anti-discrimination laws or the protection of Second Amendment rights. And, of course, presidents can engage in their own speech about these and other matters, including through executive orders.
Trump has utilized executive orders for some of these purposes, though in novel ways (and for far more trivial ones, such as dictating what kind of straw can be used in federal buildings). But many of his orders do not merely change enforcement policies or call for agencies to regulate the actions of those who are subject to agency jurisdiction. The First Amendment “tell” in the orders is that they direct agencies to root out and censor the “promotion” of disfavored ideas or concepts.
Many of the president’s executive orders reflect his own personal frustrations and grievances, including the promotion of ideas he believes should never have been expressed, and that the federal government should now use its vast powers to suppress. Thus, a central purpose of the orders is to purge disfavored ideas and concepts from schools, companies, libraries, museums, foundations, and scientific research.
The following examples illustrate these points:
Race
An executive order describes DEI programs as “radical” and “wasteful.” It instructs agencies to coordinate the termination of “all discriminatory programs, including illegal DEI and diversity, equity, inclusion, and accessibility (DEIA) mandates, policies, programs, preferences, and activities in the federal government, under whatever name they appear.” Further, Trump ordered all federal agencies and commissions to provide the director of the Office of Management and Budget with lists of “[f]ederal contractors who have providedDEI training or DEI training materials to agency or department employees” and “[f]ederal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since Jan. 20, 2021.”
Here as elsewhere, and absent any definitional guidelines, a second order also targets DEI. It requires an office within the Department of Labor to “immediately cease . . . [p]romotingdiversity.” What’s more, the president orders federal agencies to “[e]xcise references to DEI and DEIA principles, under whatever name they may appear, from Federal acquisition, contracting, grants, and financial assistance procedures.”
“Radical DEI,” an executive order proclaims, must be replaced by “individual dignity, hard work, and excellence,” which are identified as “fundamental to American greatness.”
Promoting, advocating, or even mentioning “DEI” is also forbidden in the private sector. The president orders agencies to root out DEI and in its place “advance in the private sector the policy of individual initiative, excellence, and hard work.” To that end, the president orders agencies to identify the “most egregious and discriminatory DEI practitioners” within their jurisdictions and to propose investigations of private sector companies to investigate their use of “DEI.”
“Basing Federal policy on truth,” the order proclaims, “is critical to scientific inquiry, public safety, morale, and trust in government itself.” The order criticizes understandings of sex or gender that go beyond biology for “[i]nvalidating the true and biological category of ‘woman.’”
The president rejected “the false claim that males can identify as and thus become women and vice versa” and proclaimed the administration’s intent not to “regard this false claim as true.”
Trump decreed that “every agency and all Federal employees acting in an official capacity on behalf of their agency shall use the term ‘sex’ and not ‘gender’ in all applicable Federal policies and documents.”
The order required agency heads to “implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex,” as defined in the order. Further, it requires that “[a]gencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology.”
In a guidance document sent to all agencies, the acting director of the Office of Personnel Management instructed agency heads to review any programs that “promoteor inculcategender ideology,” place on immediate leave any employees whose job descriptions involve “inculcatingor promotinggender ideology,” remove “all outward facing media . . . that inculcate or promotegender ideology,” disable any email features that “prompt users for their pronouns,” cancel trainings and end “resource groups” that “inculcate or promotegender ideology,” and ensure that any agency forms use “sex” instead of “gender” and list only “male” or “female” as options.
In another order relating to gender, the president characterizes service in the Armed Forces by transgender individuals as a form of “radical gender ideology” that harms the military. The order declares that “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.” Further, it declares that “a man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.” The Order directs the Secretary of Defense to end all pronoun use in the U.S. Armed Forces and take steps to ban transgender individuals from entering or remaining in service.
Official views about gender and gender identity are reflected in other executive orders. For example, an order concerning federal funding for K-12 schools tasks multiple agencies with recommending ways to “rescind Federal funds, to the maximum extent consistent with applicable law” that “directly or indirectly support or subsidize the instruction, advancement, or promotion of gender ideology or discriminatory equity ideology.” Regarding federal funding, the order states “Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”
Patriotism
The executive order “Ending Radical Indoctrination in K-12 Schooling” conditions federal funding on the adoption by K-12 schools of “patriotic” curricula and threatens to withhold funding from any schools that teach that the United States is “fundamentally racist, sexist or otherwise discriminatory.”
The order defines “patriotic education” to mean “a presentation of the history of America” that is “inspiring” and “ennobling,” that emphasizes “how the United States has admirably grown closer to its noble principles, and that embraces “the concept that celebration of America’s greatness and history is proper.”
Trump’s personal conceptions of patriotism are also reflected in executive orders pertaining to immigration and deportation. One order provides that resident aliens who express “hatred for America,” “bear hostile attitudes toward [American] citizens, culture, government, institutions, or founding principles,” or “espouse hateful ideology” will be subject to deportation — a threat the administration has now made good on by deporting international students who have engaged in pro-Palestine protests and expression. The order instructs the Secretary of State and other agencies to “recommend any additional measures to be taken that promote a unified American identity and attachment to the Constitution, laws, and founding principles of the United States.”
American history
In an executive order titled “Restoring Truth and Sanity to American History,” Trump declares, “It is the policy of my administration to restore Federal sites dedicated to history, including parks and museums, to solemn and uplifting public monuments that remind Americans of our extraordinary heritage, consistent progress toward becoming a more perfect Union, and unmatched record of advancing liberty, prosperity, and human flourishing.” Without even a hint of irony, the order then states, “Museums in our Nation’s capital should be places where individuals go to learn — not to be subjected to ideologicalindoctrination or divisivenarratives that distort our shared history.”
The “Truth and Sanity” order tasks the vice president and other administration officials with “seeking to remove improper ideology from such properties.” An accompanying “Fact Sheet” boasts that the president has ordered officials “to work to eliminate improper, divisive, or anti-American ideology from the Smithsonian and its museums, education and research centers, and the National Zoo.” Further, Trump vows to remove “divisiveideology” he claims the prior administration adopted — apparently by imposing an ideology that portrays American history only in the most positive light.
Declaring (and leveraging) official ‘Truths’
As the highlighted language above shows, Trump’s executive orders could not be more transparent about their intent: to declare official “truth” and “falsity” regarding race, gender, and other matters and to punish the “promotion,” advocacy, or even references to competing ideas or ideologies. The orders call on agencies to ban or punish the “promotion” of “diversity” and “radical gender ideology,” instruction that is not “patriotic,” and speech that communicates “hostile attitudes” toward American culture or institutions. The orders declare the “truth” of biological sex and forbid the “promotion” of any other conception, while also banning pronouns and the word “gender” in federal programs. The Trump administration seeks to remove so-called “anti-American ideology” from museums.
As I explained in my previous installment, the effect of the administration’s purported “truth-declaring” on expression has been nothing short of extraordinary. Executive agencies have responded, sometimes with absurd results — including removing exhibits about Jackie Robinson, cancelling celebrations of prominent black or female figures, removing books by black authors from libraries, and scrubbing information about the “Enola Gay” from the Department of Defense website.
Similar effects have occurred outside the government. Corporations, universities, and other federal funding recipients have likewise reacted to the president’s orders by removing disfavored words or concepts from websites and other public-facing documents. Universities have cancelled presentations based on concerns that the content of lectures will run afoul of the orders, broadcast stations have been warned that their licenses may be revoked based on DEI policies, and nonprofits have been instructed to remove potentially offending words and phrases from their grant documents.
The effort to punish expression the administration dislikes or disagrees with extends beyond the areas discussed. For example, a Trump executive order targets a former official who served in his first administration for publicly declaring that the 2020 presidential election was not affected by election fraud — a position contrary to Trump’s own oft-repeated (and oft-debunked) “stolen” election narrative.
The administration has defended the orders by claiming that they merely announce new policies and target unlawfully discriminatory actions by funding grantees and others. Some even purport to preserve protection for speech that promotes or advocates what the orders define as “unlawful employment or contracting practices.” But these claims are belied by the orders themselves, which again repeatedly declare “truth” and “falsity” regarding ideas, ban “promotion” or “advocacy” of forbidden ideologies, and purport to dictate which ideas are and are not “anti-American.”
Despite their questionable validity, the orders have been exceptionally successful in terms of censoring and controlling speech. One of the principal reasons for this success is that the orders are generally vague or unclear about what is allowed and forbidden. Thus, although the concept of DEI is critical to determining whether a grantee is entitled to federal funds, none of the executive orders to date have bothered to provide any official and meaningful definition of the concept. Nor is it clear what to them constitutes “hateful ideology,” “anti-American ideology,” “unpatriotic” instruction, or other forbidden expression. To further illustrate the point, the Trump administration has been clear that it views gender as solely a biological concept; however, it has not been clear about what might constitute “radical gender ideology” or what actions will be treated as “promoting” it.
By design, such ambiguity fosters ideological suppression. As Clint Smith observed in an Atlantic article concerning the administration’s insistence that museums not display “divisive” or “anti-American ideology”:
What does it mean for something to be improper if the administration’s understanding of what is acceptable excludes anything that might make white Americans feel bad? Is the statue of Thomas Jefferson surrounded by bricks inscribed with the names of people he enslaved improper? Is a slave cabin that once sat on the grounds of a plantation in South Carolina improper? Are the shackles that were once locked around the feet of enslaved children improper? Is Harriet Tubman’s silk shawl improper? Is Nat Turner’s Bible improper? Is Emmett Till’s casket improper? Are the photographs of men and women who were lynched as white audiences looked on improper?
This kind of vagueness and uncertainty stifles legitimate speech activity. Faced with ambiguity backed by agency enforcement, many grantees will err on the side of avoiding or excising what government officials might view as “false” ideas, forbidden “promotion,” or disfavored language.
The administration has used the pronouncement of its purported “truths” and forbidden “promotion” as leverage — to threaten investigations, agency actions, and funding denials. Thus, the orders state that any grantee who engages in forbidden DEI or promotes “gender ideology” is subject to an Equal Employment Opportunity Commission investigation and substantial funding loss. Charges of engaging in DEI and promoting “radical gender ideology” have provided a pretextual basis for governmental investigations and sanctions against law firms, universities, corporations, broadcasters, and others. For the administration, the lack of clear standards allows it to declare that grantees and others are in default, hence triggering lengthy and invasive investigations. To avoid the sanctions, some targeted entities and individuals have simply folded. The administration has similarly relied on vague definitions or standards regarding so-called “anti-Semitism” to intimidate and coerce universities into “settling” unproven claims.
The undemocratic benefits of vagueness
Thus far, the administration’s lack of clarity has worked in its favor. Given the ambiguity, it can be difficult to demonstrate that the government’s funding decisions are based on disagreement with viewpoints as opposed to responses to what it considers discriminatory practices or shifting policy positions.
Trump’s reliance on vague directives and implicit threats requires that courts treat “jawboning” and other informal means of coercion as just as problematic as more direct forms of suppression. The Supreme Court held in a recent decision that New York officials could not coerce financial institutions to cease dealings with the National Rifle Association. Likewise, the Trump administration is allowed to seek to persuade funding grantees and the Nation that its conceptions of race, gender, patriotism, and history are “true.” But it cannot coerce grantees to accept those “truths” through sanction or suppression of speech.
However this issue is resolved in courts, we should be aware that much of the damage has already been done. As Justice Jackson explained in Barnette, coercing individuals and institutions to accept official orthodoxies “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” More ominously, Jackson warned, allowing officials to dictate what is “true” or “false” in the field of contested ideas leads only to “the unanimity of the graveyard.”
Elections have consequences . . . but imposing orthodoxies cannot be one of them
Governments are entitled to communicate their views about race, gender, patriotism, and other subjects. Further, no one has a legal or constitutional right to federal funding. However, if the government is going to make federal funding available, it cannot deny or remove it based on a grantee’s promotion or advocacy of disfavored ideas or concepts. It cannot punish instructors for teaching or discussing DEI, scientists for conducting research focused on “diverse” or “disadvantaged” patient populations, or museums for communicating “divisive” viewpoints about American culture and history.
One of the key tenets of our First Amendment freedoms is that sometimes minority rights must trump majoritarian will. This is especially true when certain viewpoints are protected while others are prosecuted. By that measure, compelled orthodoxy is an affront to those free speech principles that distinguish our Madisonian democracy from other regimes that give lip service, if that, to such worthy principles.
Court denies First Amendment challenge in anti-DEI case
Plaintiffs are three nonprofit organizations that incorporate DEI into their work. They also contract with and receive funding from several federal agencies. Concerned that President Trump’s executive orders will prevent them from fulfilling their organizational missions, Plaintiffs sued to enjoin a host of agencies and officials from enforcing the orders. They moved for a preliminary injunction over a week later, arguing that eight provisions of the orders are unconstitutional under the First or Fifth Amendment — or both. More specifically, Plaintiffs contend that the challenged provisions are impermissibly vague, chill protected speech, and amount to unlawful viewpoint discrimination.
But Plaintiffs have not shown that they are likely to succeed on any of those claims, so the extraordinary relief of a preliminary injunction is unwarranted. For half the challenged provisions, Plaintiffs fail to establish a prerequisite to success on the merits: standing. Presidential directives to subordinates that inflict no concrete harm on private parties — or at least not on these parties — do not present a justiciable case or controversy. And for the remaining provisions, Plaintiffs’ constitutional claims falter for various reasons. Two throughlines explain most of them. The government need not subsidize the exercise of constitutional rights to avoid infringing them, and the Constitution does not provide a right to violate federal antidiscrimination law. And those pressure points are even harder to overcome for Plaintiffs, who bring facial rather than as-applied challenges.
Preliminary injunction remains in force in challenge to anti-DEI order
This Court remains of the view that Plaintiffs have shown a strong likelihood of success on the merits of their facial free speech and vagueness claims, as this Court previously explained. . . . The Challenged Provisions forbid government contractors and grantees from engaging in “equity-related” work and from “promoting DEI” in ways the administration may consider to violate antidiscrimination laws; they demand that the “private sector” “end . . . DEI” and threaten “strategic enforcement” to effectuate the “end[ing]” of “DEI”; and they threaten contractors and grantees with enforcement actions with the explicit purpose of ‘deter[ring]’ such ‘programs or principles.’ . . . This Court remains deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment. And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.
Historically, the metaphor used to describe the effect of laws that restrict speech is “chill.” The more apt metaphor here is “extinguish.” Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate — to silence selected viewpoints, selected discourse — on matters of public concern. They forbid government contractors and grantees from engaging in discourse — including speech such as teaching, conferences, writing, speaking, etc. — if that discourse is “related” to “equity.” And they direct the “private sector” to “end” diversity, to “end” equity, and to “end” inclusion. See J21 Order § 4(b) (directing agencies to “encourage the private sector to end . . . DEI”). “End” is not a mere “chill.” “Deter[rence]” is not a side-effect of the Challenged Provisions; their explicit goal is to “deter” not only “programs” but “principles” — i.e. ideas, concepts, values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.
The government has apparently concluded, and takes the position, that particular employment practices, for example related to hiring or promotion, constitute discrimination in ways that violate Title VI or Title VII. But the Challenged Provisions do far, far more than announce a change in enforcement priorities within the bounds of existing law. For as vague as the Challenged Provisions are about some matters, see ECF No. 44 at 36-44, 53-55, there can be no serious question that the direct and necessary impact of those provisions — and purposeful, to the extent that matters — is to extinguish discourse throughout civil society on what makes our society diverse, the different perspectives we each bring to bear based our respective upbringing, family history, community, economic circumstances, race, national origin, gender, ability, sexual orientation, or the like. These executive directives seek to extinguish discourse about our shared history. They seek to extinguish discourse about how to strive toward greater inclusivity, or even what that means, or whether that is a worthy goal.
[ . . . ]
Upon consideration of the motion to vacate the preliminary injunction, ECF No. 77, and the response and reply thereto, and after oral argument on April 10, 2025, and for the reasons provided above, it is ORDERED that the motion is DENIED.
NYU Law School saga — right to take exams and lawfully protest reinstated
Pro-Palestine law students at New York University have secured a major victory against the university administration’s attempts to silence protests. On May 4, the NYU administration confirmed that 31 law students who had been barred from campus and prohibited from sitting for final exams, unless they sign away their right to protest, are now permitted to take their exams.
“This type of public pressure, the backlash that [the administration] got from not allowing students to sit for exams, was not something that they expected,” said one of the affected NYU law students, who spoke to Peoples Dispatch about this latest decision.
The NYU administration had sent a message out to 31 law students, barring them from campus including to take exams, unless they signed a “Use of Space Agreement” which included the language “you may not participate in any protest activity or disruptive activity on Law School property.” The law students who received the message are accused of participating in peaceful sit-in protests on March 4 and April 29, at NYU’s library and outside the office of the dean of the law school.
These student activists have pointed out that this is a form of protest permitted by the school’s own outlined policies. NYU’s Guidance and Expectations on Student Conduct explicitly states that “peacefully protesting on University property” is a type of “permitted” protest.
Tinker-type case distributed for conference nine times
The case is L.M. v. Town of Middleborough. The issue raised in the case is whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
The case has been on the docket since early October of last year. Since then it has been distributed for conference eight times between Dec. 6, 2024 and May 2, 2025. Eighteen states have filed an amicus brief in support of the petitioner.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland(9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency Applications
Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re: “false statements”)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.
UPDATE: The hearing scheduled for May 9 has been postponed until May 16 at the U.S. District Court for the District of Columbia. The court will hear two similar motions at the same time and consider whether to temporarily restore the cuts to research and data collections and bring back fired federal workers at the Education Department. More details on the underlying cases in the article below.
Some of the biggest names in education research — who often oppose each other in scholarly and policy debates — are now united in their desire to fight the cuts to data and scientific studies at the U.S. Department of Education.
The roster includes both Grover J. “Russ” Whitehurst, the first head of the Institute of Education Sciences (IES) who initiated studies for private school vouchers, and Sean Reardon, a Stanford University sociologist who studies inequity in education. They are just two of the dozens of scholars who have submitted declarations to the courts against the department and Secretary Linda McMahon. They describe how their work has been harmed and argue that the cuts will devastate education research.
Professional organizations representing the scholars are asking the courts to restore terminated research and data and reverse mass firings at the Institute of Education Sciences, the division that collects data on students and schools, awards research grants, highlights effective practices and measures student achievement.
Related: Our free weekly newsletter alerts you to what research says about schools and classrooms.
Three major suits were filed last month in U.S. federal courts, each brought by two different professional organizations. The six groups are the Association for Education Finance and Policy (AEFP), Institute for Higher Education Policy (IHEP), American Educational Research Association (AERA), Society for Research on Educational Effectiveness (SREE), National Academy of Education (NAEd) and the National Council on Measurement in Education (NCME). The American Educational Research Association alone represents 25,000 researchers and there is considerable overlap in membership among the professional associations.
Prominent left-wing and progressive legal organizations spearheaded the suits and are representing the associations. They are Public Citizen, Democracy Forward and the Legal Defense Fund, which was originally founded by the National Association for the Advancement of Colored People (NAACP) but is an independent legal organization. Allison Scharfstein, an attorney for the Legal Defense Fund, said education data is critical to documenting educational disparities and improve education for Black and Hispanic students. “We know that the data is needed for educational equity,” Scharfstein said.
Officers at the research associations described the complex calculations in suing the government, mindful that many of them work at universities that are under attack by the Trump administration and that its members are worried about retaliation.
“A situation like this requires a bit of a leap of faith,” said Elizabeth Tipton, president of the Society for Research on Educational Effectiveness and a statistician at Northwestern University. “We were reminded that we are the Society for Research on Educational Effectiveness, and that this is an existential threat. If the destruction that we see continues, we won’t exist, and our members won’t exist. This kind of research won’t exist. And so the board ultimately decided that the tradeoffs were in our favor, in the sense that whether we won or we lost, that we had to stand up for this.”
The three suits are similar in that they all contend that the Trump administration exceeded its executive authority by eliminating activities Congress requires by law. Private citizens or organizations are generally barred from suing the federal government, which enjoys legal protection known as “sovereign immunity.” But under the Administrative Procedure Act of 1946, private organizations can ask the courts to intervene when executive agencies have acted arbitrarily, capriciously and not in accordance with the law. The suits point out, for example, that the Education Science Reform Act of 2002 specifically requires the Education Department to operate Regional Education Laboratories and conduct longitudinal and special data collections, activities that the Education Department eliminated in February among a mass cancelation of projects.
The suits argue that it is impossible for the Education Department to carry out its congressionally required duties, such as the awarding of grants to study and identify effective teaching practices, after the March firing of almost 90 percent of the IES staff and the suspension of panels to review grant proposals. The research organizations argue that their members and the field of education research will be irreparably harmed.
Of immediate concern are two June deadlines. Beginning June 1, researchers are scheduled to lose remote access to restricted datasets, which can include personally identifiable information about students. The suits contend that loss harms the ability of researchers to finish projects in progress and plan future studies. The researchers say they are also unable to publish or present studies that use this data because there is no one remaining inside the Education Department to review their papers for any inadvertent disclosure of student data.
The second concern is that the termination of more than 1,300 Education Department employees will become final by June 10. Technically, these employees have been on administrative leave since March, and lawyers for the education associations are concerned that it will be impossible to rehire these veteran statisticians and research experts for congressionally required tasks.
The suits describe additional worries. Outside contractors are responsible for storing historical datasets because the Education Department doesn’t have its own data warehouse, and researchers are worried about who will maintain this critical data in the months and years ahead now that the contracts have been canceled. Another concern is that the terminated contracts for research and surveys include clauses that will force researchers to delete data about their subjects. “Years of work have gone into these studies,” said Dan McGrath, an attorney at Democracy Forward, who is involved in one of the three suits. “At some point it won’t be possible to put Humpty Dumpty back together again.”
In all three of the suits, lawyers have asked the courts for a preliminary injunction to reverse the cuts and firings, temporarily restoring the studies and bringing federal employees back to the Education Department to continue their work while the judges take more time to decide whether the Trump administration exceeded its authority. A first hearing on a temporary injunction is scheduled on Friday in federal district court in Washington.*
A lot of people have been waiting for this. In February, when DOGE first started cutting non-ideological studies and data collections at the Education Department, I wondered why Congress wasn’t protesting that its laws were being ignored. And I was wondering where the research community was. It was so hard to get anyone to talk on the record. Now these suits, combined with Harvard University’s resistance to the Trump administration, show that higher education is finally finding its voice and fighting what it sees as existential threats.
The three suits:
Public Citizen suit
Plaintiffs: Association for Education Finance and Policy (AEFP) and the Institute for Higher Education Policy (IHEP)
Attorneys: Public Citizen Litigation Group
Defendants: Secretary of Education Linda McMahon and the U.S. Department of Education
Date filed: April 4
Where: U.S. District Court for the District of Columbia
A concern: Data infrastructure. “We want to do all that we can to protect essential data and research infrastructure,” said Michal Kurlaender, president of AEFP and a professor at University of California, Davis.
Status: Public Citizen filed a request for a temporary injunction on April 17 that was accompanied by declarations from researchers on how they and the field of education have been harmed. The Education Department filed a response on April 30. A hearing is scheduled for May 9.
Democracy Forward suit
Plaintiffs: American Educational Research Association (AERA) and the Society for Research on Educational Effectiveness (SREE)
Attorneys: Democracy Forward
Defendants: U.S. Department of Education, Institute of Education Sciences, Secretary of Education Linda McMahon and Acting Director of the Institute of Education Sciences Matthew Soldner
Date filed: April 14
Where: U.S. District Court for the District of Maryland, Southern Division
A concern: Future research. “IES has been critical to fostering research on what works, and what does not work, and for providing this information to schools so they can best prepare students for their future,” said Ellen Weiss, executive director of SREE. “Our graduate students are stalled in their work and upended in their progress toward a degree. Practitioners and policymakers also suffer great harm as they are left to drive decisions without the benefit of empirical data and high-quality research,” said Felice Levine, executive director of AERA.
Status: A request for a temporary injunction was filed April 29, accompanied by declarations from researchers on how their work is harmed.
Legal Defense Fund suit
Plaintiffs: National Academy of Education (NAEd) and the National Council on Measurement in Education (NCME)
Attorneys: Legal Defense Fund
Defendants: The U.S. Department of Education and Secretary of Education Linda McMahon
Date filed: April 24
Where: U.S. District Court for the District of Columbia
A concern: Data quality. “The law requires not only data access but data quality,” said Andrew Ho, a Harvard University professor of education and former president of the National Council on Measurement in Education. “For 88 years, our organization has upheld standards for valid measurements and the research that depends on these measurements. We do so again today.”
Status: A request for a temporary injunction was filed May 2.*
* Correction: This paragraph was corrected to make clear that lawyers in all three suits have asked the courts to temporarily reverse the research and data cuts and personnel firings. Also, May 9th is a Friday, not a Thursday. We regret the error.
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“Under my watch, the partisan weaponization of the Department of Justice will end. America must have one tier of justice for all.” — Pamela Bondi (confirmation hearing for U.S. attorney general, Jan. 15, 2025)
“After years and years of illegal and unconstitutional federal efforts to restrict free expression, I will also sign an executive order to immediately stop all government censorship and bring back free speech to America.” — Donald J. Trump (Jan. 20, 2025, inaugural address)
“Government censorship of speech is intolerable in a free society.” — Donald J. Trump (Jan. 20, 2025, executive order)
So many lies, so many orders, so much suppression. The “flood” of free expression abridgments continues to be dizzying and depressing.
Unprecedented! That is the word for this new form of silencing that is spreading like a deadly cancer.
The rules of the past cease to be honored. Retribution has replaced righteousness. Fear triumphs over courage. A one-party-led Congress has abdicated its authority. Judicial review is derided. And our system of justice as constituted is unable to adequately address the wrongs perpetuated by an authoritarian figure aided by his confederates. A blitzkrieg takeover of the federal government seeks to vest unchecked power in the Executive while normalizing suppression on the vile pretense of advancing free speech and equality — a page right out of Orwell’s “1984.”
In some respects, we are witnessing what constitutes a threat perhaps as great as the Sedition Act of 1798, the Civil War actions taken by Lincoln, and the World War I, Cold War, and Vietnam War abridgments of free speech. Nonetheless, the number and frequency of such abridgments make it difficult to comprehend the cumulative gravity of this threat to our First Amendment freedoms.
Within the Trump administration’s first 100 days, the government has ushered in a new era of direct and indirect suppression of speech. Meanwhile, cases are being litigated, individuals and institutions are being silenced, books banned, “settlements” coerced, scientific research squelched, history erased, while lower court rulings struggle to be relevant. And all of this, in its many forms, has occurred in the absence of any near-final resolution by the Supreme Court, as if that too might be slighted someday soon.
We are beyond any “there are evils on both sides” mentality, much as we were beyond it in 1798. Recall that while John Adams, the lawyer, championed free speech in his writings, he later backed the Alien and Sedition Acts as “the Federalist” president.
Calling out tyranny is not partisan; it is American! And yet, many are relatively detached, silent, and clueless.
Trump’s “flood the zone” tactics have taxed the American mind to such an extent that few can barely, if at all, remember yesterday’s free speech abridgments let alone those of last week or last month. The result: who remembers all of the trees leveled not to mention any big picture of the forest devastated in the process? What to do?
Enter “First Amendment Watch” and the Zick Resource Report
Thanks to Professor Stephen Solomon and Susanna Granieri over at First Amendment Watch (FAW), there is a meaningful way to begin to get a conceptual hold on what has occurred within the first 100 days of the Trump administration and its attacks on free speech.
Happily, FAW today released what is surely the most important First Amendment resource documenting the numerous First Amendment abridgments committed by the Trump administration within its first 100 days. This invaluable resource was prepared by Professor Timothy Zick.
Professor Timothy Zick
Though the full resource repository is available over at FAW, its table of contents is reproduced below:
Introduction by Timothy Zick
I. First Amendment-Related Executive Orders and Memoranda
A. Freedom of Speech and Censorship B. Foreign Terrorism and National Security C. Law Firms D. Retribution Against Former Government Officials E. Diversity, Equity, and Inclusion F. Gender and Gender Identity G. K-12 Education H. Museums, Libraries, and Public Broadcasting I. Political Donations J. University Accreditors
II. First Amendment-Related Litigation
A. Lawsuits Challenging Executive Orders, Guidance, and Policies
1. Diversity, Equity and Inclusion 2. Immigration 3. Educational Funding 4. Law Firms 5. Gender and Gender Identity 6. Data and Scientific Inquiry 7. Libraries and Museums 8. Public Broadcasting
B. Retaliatory Dismissal and Other Employment Lawsuits C. Lawsuits Filed by Media and Journalists D. Defamation and Other Civil Lawsuits Filed By Donald Trump
III. Commentary and Analysis
A. Actions Against the Press and Journalists B. Defamation and Other Civil Lawsuits C. Broadcast Media D. Social Media E. Education
1. DEI Programming and Initiatives 2. Antisemitism Investigations and Demands 3. Academic Freedom 4. K-12 Curriculum
F. Immigration Enforcement
1. International Students 2. Foreign Scholars 3. Immigration Activism
G.Public Employees H. Private Sector
1. Law Firms 2. Individual Critics and Enemies
I. Transparency, Data, and Information
1. Data, Information, and Scientific Research 2. Museums and Libraries 3. Public Broadcasting 4. Misinformation and Disinformation 5. “DOGE” and Transparency
J. Grants and Funding K. Protests and Demonstrations
1. Campus Protests 2. Public Protests
L. Governmental Orthodoxy
1. Race and DEI 2. Gender and Gender Identity 3. History and Patriotism
M. Retribution and Chilling Speech N. Investigations O. The Bigger Picture P. Tracking All Trump 2.0 Lawsuit
Related
Coming Next Week
The next installment of Professor Timothy Zick’s ongoing posts is titled “Executive Orders and Official Orthodoxies.”
Justice Department to go after reporters’ records in government leak cases
Senate Judiciary Committee considers the nomination of Pamela Bondi for Attorney General on Jan. 15, 2025. (Maxim Elramsisy / Shutterstock.com)
The Justice Department is cracking down on leaks of information to the news media, with Attorney General Pam Bondi saying prosecutors will once again have authority to use subpoenas, court orders and search warrants to hunt for government officials who make “unauthorized disclosures” to journalists.
New regulations announced by Bondi in a memo to the staff obtained by The Associated Press on Friday rescind a Biden administration policy that protected journalists from having their phone records secretly seized during leak investigations — a practice long decried by news organizations and press freedom groups.
The new regulations assert that news organizations must respond to subpoenas “when authorized at the appropriate level of the Department of Justice” and also allow for prosecutors to use court orders and search warrants to “compel production of information and testimony by and relating to the news media.”
The memo says members of the press are “presumptively entitled to advance notice of such investigative activities,” and subpoenas are to be “narrowly drawn.” Warrants must also include “protocols designed to limit the scope of intrusion into potentially protected materials or newsgathering activities,” the memo states.
Former FCC Chairs attack FCC’s attack on First Amendment principles
(T. Schneider / Shutterstock.com)
As former chairmen of the Federal Communications Commission (FCC) — one appointed by a Democrat, the other by a Republican — we have seen firsthand how the agency operates when it is guided by its mission to uphold the public interest. But in just over two months, President Donald Trump and his handpicked FCC Chair Brendan Carr have upended 90 years of precedent and congressional mandates to transform the agency into a blatantly partisan tool. Instead of acting as an independent regulator, the agency is being weaponized for political retribution under the guise of protecting the First Amendment.
Their actions fall into two categories. First, the president used executive orders (EOs) to strip the agency of its independence, making it subservient to the White House. Second, the chairman has exploited the commission’s powers to undermine the very First Amendment rights it is supposed to uphold.
Mchangama on the ‘New McCarthyism’
Jacob Mchangama
Despite being Danish, I’ve always found America’s civil-libertarian free speech tradition more appealing than the Old World’s model, with its vague terms and conditions. For much of my career, I’ve been evangelizing a First Amendment approach to free speech to skeptical Europeans and doubtful Americans, who are often tempted by laws banning “hate speech,” “extremism,” and “disinformation.” That appreciation for the First Amendment is something I share with many foreigners — Germans, Iranians, Russians — who now call America home.
[ . . . ]
It’s now clear that the government is targeting noncitizens for ideas and speech protected by the First Amendment. The most worrying example (so far) is a Turkish student at Tufts University, apparently targeted for co-authoring a student op-ed calling for, among other things, Tufts to divest from companies with ties to Israel. One report estimates that nearly 300 students from universities across the country have had their visas revoked so far.
Instead of correcting this overreach, the government has doubled down. U.S. Citizenship and Immigration Services recently announced that it would begin screening the social media posts of aliens “whose posts indicate support for antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity.” Shortly after, the X account of USCIS posted about a “robust social media vetting program” and warned: “EVERYONE should be on notice. If you’re a guest in our country — act like it.” And four days later, White House homeland security adviser Stephen Miller promised to deport “anyone who preaches hate for America.” What that means is anybody’s guess — and seems to depend entirely on subjective assessments.
[ . . . ]
Had America been known for deporting, rather than welcoming, dissent, I would never have made it my home. That might not have been much of a loss. But consider this: 35 percent of U.S.-affiliated academic Nobel laureates are immigrants, and nearly half of all American unicorn startups have founders born outside the country. How many of these brilliant minds would have chosen the United States if they risked exile for crossing the speech red lines of the moment?
As a European who owes my freedom in life thus far to the America that fought Nazism and defeated communism, I feel a responsibility to speak out when this country strays from its founding ideals. I came to America for its freedom, not just to enjoy it, but to defend it — even if that puts me at risk.
Related
New scholarly article on commencement speaker provocateurs
This Article explores an untheorized area of First Amendment doctrine: students’ graduation speeches at public universities or private universities that embrace free speech principles, either by state statute, state constitutional law, or internal policy. Responding to recent graduation speech controversies, it develops a two-tier theory that reconciles a multiplicity of values, including students’ expressive interests, universities’ institutional interests in curating commencement ceremonies and preventing reputational damage, and the interests of captive audiences in avoiding speech they deem offensive or profane.
The Article challenges the prevailing view that university students’ graduation speeches implicate individual First Amendment rights. It develops a site-specific understanding of the ritualistic sociology of the university commencement speech, which the Article argues is firmly within the managerial purview of the university. But it also argues that heavy-handed administrative regulation of student graduation speeches has the potential to undermine the academic freedom of students and professors.
Reflecting on the history of the university commencement speech in the American intellectual tradition, it urges university administrators to exercise their authority to regulate speeches through transparent standards, a longitudinal view, and collaborative negotiation with student speakers.
It concludes by discussing the conceptual dangers of turning the First Amendment into a metonym for every instance of speech abridgment within a managerial sphere.
‘So to Speak’ podcast: Rabban and Chemerinsky on academic freedom
Our guests today signed onto a statement by a group of 18 law professors who opposed the Trump administration’s funding threats at Columbia on free speech and academic freedom grounds.
Since then, Northwestern, Cornell, Princeton, Harvard, and nearly 60 other colleges and universities are under investigation with their funding hanging in the balance, allegedly for violations of civil rights law.
To help us understand the funding threats, Harvard’s recent lawsuit against the federal government, and where universities go from here are:
David Rabban — distinguished teaching professor at The University of Texas at Austin School of Law
Erwin Chemerinsky — distinguished professor of law and dean at UC Berkeley Law.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency Applications
Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.
President Donald Trump followed through on his campaign trail rhetoric Wednesday, taking aim at accreditors in an executive order that targets diversity, equity and inclusion standards; makes it easier for institutions to switch accrediting agencies; and opens the door for new entrants.
In May 2023, Trump said in a campaign video that accreditors had failed “to ensure that schools are not ripping off students and taxpayers.” He promised to “fire the radical Left accreditors that have allowed our colleges to become dominated by Marxist Maniacs and lunatics,” adding that his administration would accept applications for new accreditors to “impose real standards.” Nearly two years later, he revealed his plan to “fire” accreditors in the executive order.
The directive accused accreditors of failing to hold institutions accountable for mediocre graduation rates and for leaving students with “enormous debt.” Trump also charged accreditors with having “unlawfully discriminatory practices” related to DEI standards.
In response, accrediting bodies have suggested that the executive order’s conclusions about their approach to DEI are sweeping and untrue, and argue that new accreditors should be held to the same standards as existing bodies. They also noted their willingness to work with the Trump administration.
Higher education experts and support organizations were much sharper in their critiques, save for some conservative commentators who applauded the accreditation reforms as necessary.
Accreditors Weigh In
The Council of Regional Accrediting Commissions, which represents all major institutional accreditors, pushed back on Trump’s order in a statement Wednesday.
“Accrediting agencies are instrumental to promoting quality assurance and protecting student and taxpayer investments in higher education,” C-RAC president Heather Perfetti, who also leads Middle States Commission on Higher Education, wrote in the statement. “While we firmly reject President Trump’s mischaracterization of accreditors’ role in the nation’s postsecondary education system, we stand ready to work with the Secretary of Education on policies that will advance our shared mission of enhancing quality, innovation, integrity, and accountability.”
In an accompanying fact sheet, C-RAC disputed Trump’s claim that DEI standards conflict with state and federal law and that accreditors had failed to hold institutions accountable, among other allegations.
Other accreditors released their own individual statements.
“Contrary to claims of lax oversight, [the Accrediting Commission for Community and Junior Colleges] has taken necessary action against institutions that fail to meet ACCJC Standards and has seen continued improvements across the membership in financial stability, completion rates, and compliance with ACCJC Eligibility,” ACCJC president Mac Powell wrote on Wednesday.
While the Higher Learning Commission quoted from the C-RAC letter, officials also emphasized in a Thursday statement that HLC’s standards “require compliance with all applicable laws.”
“HLC’s requirements do not mandate decision making or preferences based on federally protected characteristics; prescribe any specific training or programming involving concepts related to diversity, equity or inclusion; nor require that an institution have elements as part of its curriculum involving concepts related to diversity, equity or inclusion,” agency officials wrote.
The Northwest Commission on Colleges and Universities also emailed a statement from Interim President Jeff Fox on Thursday in which he emphasized that any changes to accreditation as proposed by the Trump administration must not weaken the core mission of accreditors.
“Accreditation ensures institutions remain accountable to their missions and the students they serve,” Fox wrote in a statement. “NWCCU strongly supports thoughtful reform in higher education that expands access, improves outcomes, and supports all students. At the same time, such reforms must preserve the foundational safeguards of accreditation, which are critical for upholding academic quality, institutional integrity, and the responsible use of public resources.”
The Western Association of Schools and Colleges Senior College and University Commission wrote in an emailed statement that it was assessing how the order might affect its standards.
“WSCUC remains committed to assuring educational quality, institutional effectiveness, and the success of every student. Our Standards emphasize academic excellence and institutional integrity in service of student success and meaningful student outcomes. We are working diligently to provide clear guidance on our Standards for all accredited and candidate institutions, maintaining our focus on student success,” WSCUC officials wrote.
The executive order also called out three organizations by name.
The Trump administration specifically took aim at the American Bar Association’s Council of the Section of Legal Education and Admissions to the Bar, the Liaison Committee on Medical Education, and the Accreditation Council for Graduate Medical Education, over DEI standards.
Trump accused the ABA accreditor of violating federal law by asking its members to demonstrate a commitment to diversity and inclusion, which includes efforts to recruit a diverse student body in terms of race, gender and ethnicity. (ABA, as noted in the executive order, suspended enforcement of its DEI standards in February.)
Contacted by Inside Higher Ed, ABA declined to comment.
Trump leveled similar criticism at LCME and ACGME, arguing that both maintained an inappropriate focus on diversity and that “standards for training tomorrow’s doctors should focus solely on providing the highest quality care, and certainly not on requiring unlawful discrimination.”
LCME struck a conciliatory tone in an emailed statement.
“In agreement with the Executive Order, the LCME shares the Administration’s goal that medical education programs and their graduates be of the highest caliber. In pursuit of this shared goal, the LCME will work with the Administration to provide requested information and to provide evidence of our ongoing commitment to outcomes-based evaluations of medical education program quality with the goal of producing outstanding physicians,” LCME officials wrote.
An ACGME spokesperson wrote by email that the organization is “currently evaluating the President’s Executive Order and its implications for our accreditation standards.”
A Range of Reactions
Trump’s executive order spurred both positive and sharply negative reactions across the higher education sector.
Andrew Gillen, a research fellow at the conservative Cato Institute, argued that the possible revocation of recognition of “accreditors that require their colleges to discriminate” was “on more solid ground” than “other anti-DEI initiatives from the [Trump] administration.” He also noted that the executive order directs Education Secretary Linda McMahon “to launch an experimental and voluntary quality assurance program,” arguing that “such an experiment could serve as a prototype for a much better accountability system in the future” if properly implemented.
Career Education Colleges and Universities, a trade association for for-profit institutions, celebrated the executive order on accreditation, as well as another that landed the same day in which Trump promised federal investments in workforce development and to expand apprenticeships.
“These long-overdue reforms will expedite America’s leadership in manufacturing and the skilled trades, greatly expanding the pipeline of qualified workers for in-demand jobs,” CECU president and CEO Jason Altmire wrote. “With these actions, President Trump has taken a significant step in providing increased opportunity for students to pursue their goals and life passions, while ensuring educational programs are held accountable for student outcomes.”
Other groups were less sanguine.
Officials at the Institute for College Access and Success blasted the executive order, arguing that it would open the door to accreditation shopping, allow inappropriate political pressures to seep into college classrooms and undermine data collection to improve student outcomes.
“The federal government should not dictate what is taught in college classrooms or prevent universities from collecting data that will help them serve their students better,” TICAS president Sameer Gadkaree wrote. “Without data disaggregating performance by race, ethnicity, or sex, accreditors—along with researchers, evaluators, and policymakers—will lack the information they need to truly assess quality.”
The American Association of University Professors also struck a sharply critical tone, casting the executive order as “yet another attempt to dictate” classroom instruction on college campuses.
“Threats to remove accreditors from their roles are transparent attempts to consolidate more power in the hands of the Trump administration in order to stifle teaching and research. These attacks are aimed at removing educational decision-making from educators and reshaping higher education to fit an authoritarian political agenda,” AAUP officials wrote in a statement.
The AAUP also noted the historic role of accreditors in policing predatory institutions, such as the president’s own Trump University, a for-profit institution that shut down in 2010. In 2017, a federal judge approved a $25 million settlement for 6,000-plus students who alleged they were misled by the then–real estate mogul. Trump did not admit to any wrongdoing in the settlement.
“Accrediting agencies have protected both students and the government from wasting money on scam institutions—like Trump University—that engage in deceit and grift. Trump’s executive order makes both students and the government more vulnerable to such fraud,” AAUP officials wrote.
President Donald Trump took aim at college accreditors in an executive order signed Wednesday that targets two accrediting agencies for investigation and suggests others could lose federal recognition altogether.
The order was one of seven issued Wednesday as Trump nears the end of his first 100 days. Others directed the Education Department to enforce the law requiring colleges to disclose some foreign gifts and contracts, aimed to support historically Black colleges and universities, and outlined several policy changes for K-12 schools. With the accreditation order and the others, Trump and White House officials argued they were refocusing the education system on meritocracy.
Education Secretary Linda McMahon, who was in the Oval Office for the signing, opened her follow-up statement by praising the accreditation order and saying it would “bring long-overdue change” and “create a competitive marketplace.”
“America’s higher education accreditation system is broken,” she wrote. “Instead of pushing schools to adopt a divisive DEI ideology, accreditors should be focused on helping schools improve graduation rates and graduates’ performance in the labor market.”
Some of the immediate public reactions from higher ed groups criticized the accreditation order, describing it as yet another attempt to put more power in the hands of the president and threaten academic freedom.
The Council of Higher Education Accreditation said Trump’s directive would “affect the value and independence of accreditation,” while the American Association of University Professors said it would “remov[e] educational decision making from educators and reshap[e] higher education to fit an authoritarian political agenda.”
Overhauling Accreditation
Rumored for weeks, the accreditation order was perhaps the most anticipated one of those signed Wednesday, and it will likely have widespread ramifications as Trump seeks to scrutinize and reform the system.
Historically, accreditors have operated under the radar with little public attention, but in recent years conservatives have focused on the agencies and their role in holding colleges accountable. (The accreditors do hold a lot of power, because universities must be accredited by a federally recognized agency in order to access federal student aid.)
During his presidential campaign, Trump himself called accreditation reform his “secret weapon” and accused accreditors of failing “to ensure that schools are not ripping off students and taxpayers.”
The order calls for McMahon to suspend or terminate an accreditor’s federal recognition in order to hold it accountable if it violates federal civil rights law, according to a White House fact sheet. The executive order specifically says that requiring institutions “to engage in unlawful discrimination in accreditation-related activity under the guise of ‘diversity, equity, and inclusion’ initiatives” would be considered a violation of the law.
The order also singles out the American Bar Association, which accredits law schools, and the Liaison Committee on Medical Education, which accredits medical schools, and directs cabinet secretaries to investigate them. (The American Bar Association suspended DEI standards for its members in February, as did some other accreditors.)
Beyond that, McMahon is tasked to “realign accreditation with student-focused principles.” That could include recognizing new accreditors, prioritizing intellectual diversity among faculty and requiring “high-quality, high-value academic programs,” though the fact sheet doesn’t say how that would be measured.
White House staff secretary Will Scharf said during the event that accreditors have relied on “woke ideology” instead of merit and performance to accredit universities. He didn’t provide evidence for his claims, but the fact sheet cites the national six-year undergraduate graduation rate, which is at 64 percent, as one example of how accreditors have “failed to ensure quality.”
“The basic idea is to force accreditation to be focused on the merit and the actual results that these universities are providing, as opposed to how woke these universities have gotten,” Scharf said.
The Trump administration also wants to streamline the process to recognize accreditors and for institutions to change agencies. Some states that have required their public colleges to change accreditors have claimed that the Biden administration made the process too cumbersome.
Scharf said the order charges the Education Department “to really look holistically at this accreditation mess and hopefully make it much better.”
Trump didn’t say much about the order or what actions he hopes to see McMahon take next.
Enforcement of Foreign Gifts
The president is not the first government official this year who has sought to limit foreign influence on American colleges and universities.
The House recently passed a bill, known as the DETERRENT ACT, which would amend Section 117 of the Higher Education Act to lower the threshold for what foreign gifts must be reported from $250,000 to $50,000. It also would require the disclosure of all gifts from countries of “concern,” like China and Russia, regardless of amount. The legislation advanced to the Senate in late March following a 241–169 vote.
Rep. Tim Walberg, a Michigan Republican and chair of the committee that introduced the bill, praised Trump’s action Wednesday, saying it “underscores” a Republican commitment to “promoting transparency.”
“Foreign entities, like the Chinese Communist Party, anonymously funnel billions of dollars into America’s higher education institutions—exploiting these ties to steal research, indoctrinate students, and transform our schools into beachheads in a new age of information warfare,” Walberg wrote in a statement shortly after Trump’s order was signed. “I am glad the Trump administration understands the grave importance of this threat, and I look forward to working with President Trump to protect our students and safeguard the integrity of America’s higher education system.”
Colleges’ compliance with Section 117 has been a key issue for Republicans over the years. House lawmakers repeatedly criticized the Biden administration’s efforts to enforce the law, but former education secretary Miguel Cardona defended his agency’s actions. They also tried to pass the DETERRENT Act last session, but it was blocked by Democrats in the Senate.
The executive order is broader than the DETERRENT Act and does little to distinguish itself aside from directing McMahon to work with the attorney general and heads of other departments where appropriate and to reverse or rescind any of Biden’s actions that “permit higher education institutions to maintain improper secrecy.”
More Support for HBCUs
Another order creates within the White House an initiative focused on historically Black colleges and universities and revokes a Biden executive order titled “White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity Through Historically Black Colleges and Universities.”
During his first term, Trump moved an HBCU initiative at the Education Department to the White House as a largely symbolic gesture to show his support for Black colleges. That initiative continued under Joe Biden, though it was returned to the Education Department. Biden also created initiatives focused on Hispanic-serving institutions and tribal colleges. Trump ended those newly created initiatives during his first week in office.
The executive order also established the President’s Board of Advisors on HBCUs at the Education Department, which appears to already exist. The panel last met in January, according to a Federal Register notice.
Scharf said the order would ensure that HBCUs are “able to do their job as effectively and as efficiently as possible.”
All of the vile executive orders issued by the Trump administration against law firms refer to purported “significant risks” associated with them, and have the same whiff of oppression:
Below the veneer of such boilerplate claims lies a repressive truth: they’re designed to be punitive, and to produce a fear that leads to robotic subservience. They are but a part of Trump’s enemies list. And his orders are to be executed by his lackey Attorney General Pam Bondi — the same person who once said: “I will fight every day to restore confidence and integrity to the Department of Justice and each of its components. The partisanship, the weaponization will be gone.”
Mr. Sellers filed the amicus brief on behalf of 61 media organizations and press freedom advocates in the case of Perkins Coie v. U.S. Department of Justice. At the outset he exposes the real agenda of the authoritarian figure in the White House:
“The President seeks the simultaneous power to wield the legal system against those who oppose his policies or reveal his administration’s unlawful or unethical acts—who, in many cases, have been members of the press—and then deny them access to the system built to defend their rights. The President could thus ‘permit one side to have a monopoly in expressing its views,’ which is the “antithesis of constitutional guarantees.’”
Mr. Sellers reminds us that “‘freedom of the press holds an . . . exalted place in the First Amendment firmament,’ because the press plays a vital role in the maintenance of democratic governance. To fulfill that function, the press relies on the work of lawyers. Lawyers assist the press in obtaining access to records and government spaces . . . because the press plays a vital role in the maintenance of democratic governance.”
Andrew Sellars
To honor that principle, Sellers argues that “the press relies on the work of lawyers. Lawyers assist the press in obtaining access to records and government spaces. They advise the press on how to handle sensitive sources and content. And they defend the press against civil and criminal threats for their publications.”
Among other key points made in this important brief is the following one:
If the Executive Order stands, many lawyers will be chilled from taking on work so directly in conflict with the President, out of fear for the harm it would cause to their clients whose relationship with the government is more transactional. For the lawyers that remain, the threat of a similar executive order aimed at them or their law firms would practically prevent them from doing their jobs, by denying their access to the people and places necessary to adjudicate their issues.
Some of the lawyers who signed this amicus brief include Floyd Abrams, Lee Levine, Seth Berlin, Ashley Kissinger, Elizabeth Koch, Lynn B. Oberlander, David A. Schulz, and Charles Toobin.
The Table of Contents appears below:
Introduction & Summary of Argument
Interests of Amici
Argument
A Free Press Allows the Public to Check Overreaching Government but Requires Legal Support.
The Oppositional Role of the Press Will Not Function if the Court Allows This executive order.
The government will inevitably use this authoritarian power to target the press.
The executive order will chill lawyers from working with the press.
The lawyers that remain will be unable to do their jobs.
Without a Robust Press, the Public will Lose a Key Vindicator of First Amendment Rights.
Related
Pronoun punishment policy in the Trump administration
You know those email signatures at the end of messages? The ones that include a range of information about the senders — phone numbers, addresses, social media handles. And in recent years, pronouns — letting the recipient know that the sender goes by “she,” “he,” “they” or something else, a digital acknowledgement that people claim a range of gender identities.
Among those who don’t agree with that are President Donald Trump and members of his administration. They have taken aim at what he calls “gender ideology” with measures like an executive order requiring the United States to recognize only two biological sexes, male and female. Federal employees were told to take any references to their pronouns out of their email signatures.
That stance seems to have spread beyond those who work for the government to those covering it. According to some journalists’ accounts, officials in the administration have refused to engage with reporters who have pronouns listed in their signatures.
The New York Times reported that two of its journalists and one at another outlet had received responses from administration officials to email queries that declined to engage with them over the presence of the pronouns. In one case, a reporter asking about the closure of a research observatory received an email reply from Karoline Leavitt, the White House press secretary, saying, “As a matter of policy, we do not respond to reporters with pronouns in their bios.”
Dare one ask? Is pro-Palestinian speech protected?
The first target of these threats was Mahmoud Khalil, a pro-Palestinian activist and former student of Columbia University, who was a negotiator for Columbia students during talks with university officials regarding their tent encampment last spring, according to The Associated Press.
Since his arrest, more than half a dozen scholars, professors, protesters and students have had their visas revoked with threats of deportation. Two opted to leave the country on their own terms, unsure of how legal proceedings against them would play out.
Free speech and civil liberties organizations have raised concerns over the arrests, claiming the Trump administration is targeting pro-Palestinian protesters for constitutionally protected political speech because of their viewpoints.
[ . . . ]
First Amendment Watch spoke with Esha Bhandari, deputy director of the ACLU’s Speech, Privacy and Technology Project, about the First Amendment implications of the Trump administration’s alleged targeting of pro-Palestinian protesters and activists. Bhandari explained how actions taken under the Immigration and Nationality Act need to be consistent with the First Amendment, described the importance of the right to peacefully assemble, and expressed that all Americans, regardless of their viewpoint, should be concerned with the Trump administration’s actions and its chilling of speech.
[Interview follows]
David Cole on the war on the First Amendment
Just released: Oxford University Press handbook on free speech
Freedom of speech is central to the liberal democratic tradition. It touches on every aspect of our social and political system and receives explicit and implicit protection in every modern democratic constitution. It is frequently referred to in public discourse and has inspired a wealth of legal and philosophical literature. The liberty to speak freely is often questioned; what is the relationship between this freedom and other rights and values, how far does this freedom extend, and how is it applied to contemporary challenges?
“The Oxford Handbook on Freedom of Speech” seeks to answer these and other pressing questions. It provides a critical analysis of the foundations, rationales, and ideas that underpin freedom of speech as a political idea, and as a principle of positive constitutional law. In doing so, it examines freedom of speech in a variety of national and supranational settings from an international perspective.
Compiled by a team of renowned experts in the field, this handbook features original essays by leading scholars and theorists exploring the history, legal framework, and controversies surrounding this tenet of the democratic constitution.
Forthcoming book on free speech and social media platforms
Northeastern University Professor John Wihbey
Why social media platforms have a responsibility to look after their platforms, how they can achieve the transparency needed, and what they should do when harms arise.
The large, corporate global platforms networking the world’s publics now host most of the world’s information and communication. Much has been written about social media platforms, and many have argued for platform accountability, responsibility, and transparency. But relatively few works have tried to place platform dynamics and challenges in the context of history, especially with an eye toward sensibly regulating these communications technologies.
In ”Governing Babel,” John Wihbey articulates a point of view in the ongoing, high-stakes debate over social media platforms and free speech about how these companies ought to manage their tremendous power.
Wihbey takes readers on a journey into the high-pressure and controversial world of social media content moderation, looking at issues through relevant cultural, legal, historical, and global lenses. The book addresses a vast challenge — how to create new rules to deal with the ills of our communications and media systems — but the central argument it develops is relatively simple. The idea is that those who create and manage systems for communications hosting user-generated content have both a responsibility to look after their platforms and have a duty to respond to problems. They must, in effect, adopt a central response principle that allows their platforms to take reasonable action when potential harms present themselves. And finally, they should be judged, and subject to sanction, according to the good faith and persistence of their efforts.
Franks and Corn-Revere to discuss ‘Fearless Speech’
Dr. Mary Anne Franks Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law, George Washington Law School; President and Legislative & Tech Policy Director, Cyber Civil Rights Initiative
Robert Corn-Revere Chief Counsel, Foundation for Individual Rights and Expression (FIRE)
Moderators
William Araiza, Stanley A. August Professor of Law, Brooklyn Law School
Ron Collins, Co-founder of the History Book Festival and former Harold S. Shefelman Scholar, University of Washington Law School
Sarah C. Haan, Class of 1958 Uncas and Anne McThenia Professor of Law, Washington and Lee University School of Law
Lukianoff’s TED talk
FIRE President and CEO Greg Lukianoff (Photo by Gilberto Tadday / TED)
Last Wednesday, FIRE’s Greg Lukianoff delivered his first TED talk at TED 2025 in Vancouver. He spoke on why so many young people have given up on free speech and how to win them back. As he noted in a recent post for his Substack newsletter, The Eternally Radical Idea:
“After months of seemingly endless writing, rewriting, and rehearsing, I’m very happy with how it turned out! (Many thanks to Bob Ewing, Kim Hemsley, Maryrose Ewing, and Perry Fein for helping me prepare. Couldn’t have done it without them!)
We’re not yet sure when the full talk will be available online, but we’ll keep you posted!”
‘So to Speak’ podcast: The plight of global free speech
We travel from America to Europe, Russia, China, and more places to answer the question: Is there a global free speech recession?
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency applications
Yost v. Ohio Attorney General (Kavanaugh, J., “It Is Ordered that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito & Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.
Given the Trump administration’s continued and varied assaults on the First Amendment, it is vital to monitor those attacks and then realize the gravity of the “sweeping and draconian sanctions” imposed by unconstitutional executive fiat. Vigilance is especially important, as New York Times investigative reporter Michael S. Schmidt has noted, because “Mr. Trump has employed tactics including lawsuits, executive orders, regulations, dismissals from government jobs, withdrawal of security details and public intimidation to take on a wide range of individuals and institutions he views as having unfairly pursued him or sought to block his agenda.”
Mindful of such matters, this installment of “Executive Watch” by professor Timothy Zick provides the most comprehensive and informed account of the current threats facing us up to now.
Of course, yet more posts are forthcoming. Meanwhile, it is worth heeding the sound advice recently offered by Dean Erwin Chemerinsky: “despite the risks of speaking out, silence itself comes at enormous cost.”
— rklc
My introductory post, which was published a little more than a month after Donald Trump took office for the second time, identified various areas in which his administration’s actions threatened First Amendment rights. At this point, even before the first 100 days of the second Trump administration have elapsed, we now have a much fuller picture of the nature and scope of the threat — and it’s even worse than we thought.
Media stories and commentary have covered a range of Trump administration policies and actions that threaten speech and press rights. Commentators have examined the attacks on media, law firms, government employees, and universities, among others. My last post discussed Trump’s abuse of the civil lawsuit to punish the media and others.
Considered in isolation, these actions raise troubling First Amendment concerns. But the whole threat to the First Amendment is far greater than the sum of its damaging parts. Combined, the administration’s actions represent a whole-of-government and whole-of-society effort to control whether and how Americans talk about certain ideas.
Trump 1.0 and the First Amendment
As it concerns the First Amendment, the fundamental difference between Trump 1.0 and Trump 2.0 is the extraordinary use of the levers of governmental power to suppress, dictate, and coerce viewpoints the president disfavors.
During the first administration, the threat to the First Amendment emanated primarily from the president’s own statements and threatened actions. Trump talked about “opening up” the libel laws to make it easier to sue media defendants. He waged a constant war on the press, which he referred to as “the enemy of the people.” He demanded loyalty, attacked those who disagreed with his views on patriotism and dissent, and threatened to punish media outlets by revoking their licenses. He also threatened to shut down social media platforms that fact-checked him.
Prof. Timothy Zick
During the 2016 presidential election, Trump called for de-naturalizing and jailing protesters who burned the U.S. flag. As president, he routinely denigrated protesters. During the Black Lives Matter demonstrations, Trump considered invoking the Insurrection Act to call up U.S. military personnel to quell protest-related civil unrest. He sent federal agents to Portland and other cities to police and quell protests. At one point during the demonstrations, Trump reportedly asked his then-secretary of defense why protesters couldn’t be shot. And, of course, after he lost the 2020 election he used his own speech to incite the Capitol insurrection on Jan. 6, 2021.
It was clear during his first term that Trump had little or no tolerance for dissent, and a strong desire to impose his will on the media and other institutions. However, for the most part, he either didn’t or couldn’t effectuate that agenda. Perhaps this was because members of his administration talked him out of it, or perhaps because he was not yet familiar with the levers of power.
Trump 2.0 and executive orders
Trump 2.0 has been a vastly different story. Past presidents, including Trump, have used executive orders to exercise or augment their executive powers. They have set important agendas for the executive branch of government. However, no president has ever used executive orders to attempt to control what Americans can discuss, or how they speak about concepts regarding diversity, patriotism, anti-Semitism, gender, and other matters of public concern. And no president has been as successful at extending such an agenda across not just the federal bureaucracy but nearly every aspect of society.
Thus far, President Trump has issued eighteent Executive Orders, plus several accompanying “Fact Sheets,” that implicate First Amendment rights. Although some of the Orders are vague and/or thin on specifics, many target expression based on its viewpoint – a quintessential violation of the First Amendment.
Five of the Executive Orders target law firms based on their representation of clients and advocacy for causes the President disfavors.
Three Orders prohibit universities, companies, and others receiving federal funds from maintaining “Diversity, Equity, and Inclusion” (DEI) policies and practices – including training, teaching, and supporting those ideas.
Trump’s Orders also target “anti-Semitic” speech by federal grantees and encourage universities to monitor “pro-jihadist protests” and campus “radicalism.”
An Executive Order requires that K-12 schools adopt “patriotic” curricula and further vows to withhold funding from any schools that teach that the United States is “fundamentally racist, sexist or otherwise discriminatory.”
Other Orders provide that resident aliens who express “hatred for America” or “bear hostile attitudes toward [American] citizens, culture, government, institutions, or founding principles” are subject to deportation.
Two of Trump’s Executive Orders single out transgender individuals, banning them from military service and imposing restrictions on the genders they can use on U.S. passports. These Orders raise important equal protection concerns, but also bar individuals from communicating about their own gender identity.
Finally, the Administration’s cost-cutting and desire to control the flow of information have deeply affected the availability and distribution of information in the United States. Trump has ordered the disbanding of Voice of America and Radio Free Europe, important outlets for furthering American interests abroad. Trump’s spending cuts have also decimated libraries, which are critical distributors of information. Trump recently issued an Executive Order that purports to remove “anti-American ideology” from the Smithsonian Museum.
TRUMP’S FIRST 80 DAYS Executive orders affecting free speech and press: 18 Federal agencies involved in enforcement: 20 Lawsuits raising First Amendment challenges: 30
The whole-of-government campaign
Standing alone, Trump’s executive orders represent a serious threat to the First Amendment. But the orders are backed by agency enforcement powers that drastically expand the danger.
Think of the executive orders as a general blueprint for an ideological and retributive campaign aimed at punishing enemies for speech, imposing governmental orthodoxy regarding race, gender, and other matters, and controlling the distribution of information. That blueprint is being enforced by all federal agencies under the president’s command. So far, that includes some twenty separate agencies, including:
Agencies across government are involved in enforcing Trump’s executive orders in areas ranging from private business to immigration. Ironically, the president’s ability to control and punish expression is due, in large part, to the size of the federal government he has targeted for downsizing or eradication.
The whole-of-society impact of the executive orders
Trump’s executive orders bind all federal agencies under his command. Agencies across regulatory areas have moved swiftly to scrub websites of offensive DEI language. Their efforts to comply with Trump’s directive have at times been comical. The Defense Department apparently removed material about the Enola Gay, the aircraft that dropped the atomic bomb on Hiroshima, because of its name. Agencies have also removed information about Jackie Robinson and other material that celebrates the accomplishments of black people and women. Taking a “chainsaw” approach to language in public-facing websites, agencies have removed information that does not comport with the president’s preferred terms and viewpoints.
“In a pre-election poll, respondents ranked ‘free speech’ among the top issues that were ‘very important’ in influencing their vote for president.”
FIRE/NORC poll of 1,022 Americans conducted Oct. 11-14, 2024
The federal government is an important source of information for issues relating to public health, the armed forces, employment, and other matters. Governments can determine what messages they want to communicate, including on websites they control, but those efforts can have harmful effects on the distribution of information to the public.
Trump’s orders have also limited the availability of information, both at home and abroad. They have silenced the nation’s voice in international spheres, cut off aid to libraries, and even demanded that museums change exhibits that convey “anti-American ideology.” Again, no president has ever used executive orders to so comprehensively control what can be seen, heard, or viewed.
Trump’s executive orders have also affected millions of individuals, entities, and institutions beyond federal agencies. Indeed, it is hard to overstate the breadth and depth of the activities covered by the existing executive orders — and they continue to be issued almost daily. The orders have already extended into every boardroom, classroom, breakroom, and laboratory in the United States. Businesses have shut down activities recognizing the value of a diverse workforce. Universities have scrubbed websites and materials of any references to the values of diversity in education. Legal counsel at some hospitals have even warned staff not to use “triggering” words like “vulnerable” or “diverse” to describe patients.
How Trump has expanded his power over expression
Four things account for the extraordinary scope and effect of the Trump administration’s campaign to control what Americans see, hear, and say regarding gender, race, and American history.
First, in contrast to Trump 1.0, the president has relied more extensively on executive orders as a means of governing. Trump’s more than 100 executive orders cover everything from the types of straws that can be used in federal buildings, the legitimate causes law firms can pursue, and the content of displays at the Smithsonian Museum.
“There . . . can be no question that the demands the administration is making of Harvard are intended to suppress protected expression, of various kinds. To avoid the loss of federal funds, Harvard will have to refrain from advocating for, or empowering others to advocate for, the viewpoint that diversity, equality, and inclusion are important educational and social values. It will have to change how it oversees faculty research and teaching, and what kinds of scholarly viewpoints it hires and promotes. And it will have to suppress student speech and association, including core political expression, more severely than it has chosen to do so far—or at least it will have to promise to do so.”
Second, the orders use the threat of lost federal funding as an enforcement mechanism. Federal funding touches nearly every aspect of American life. That includes education at all levels, health care, immigration, the practice of law, scientific research, and even farming.
Third, because the executive orders lack any meaningful specificity about concepts and ideas it targets, including “DEI” and “anti-Semitism,” no federal grantee can be sure which words, phrases, or ideas will result in a denial of critical funding. This lack of clarity has produced significant uncertainty at universities, hospitals, businesses, and other funding recipients. And that uncertainty has led to anticipatory compliance on a scale that federal anti-discrimination and other laws do not require.
Fourth, the administration has not provided the process required by federal law to deny or remove federal funding. This enhances the chill of agency enforcement by speeding up the denial of funds, leaving grantees with little recourse to contest allegations or charges prior to loss of funding.
Fifth, for many of the above reasons, the Orders have engendered a repressive fear in federal fund recipients — a fear, as Ronald Collins points out, that is “born of direct or veiled demands for loyalty” and the specter of punishment for dissent. Thus, words and phrases must be removed, lectures canceled, and “deals” inked that trade away law firms’ First Amendment rights for relief from facially retributive and unconstitutional Executive Orders.
To be sure, some will challenge these executive orders on First Amendment grounds. Indeed, nearly 30 lawsuits raising First Amendment claims have already been filed. But many more grantees will decide, as Columbia University and the Paul Weiss law firm recently have, to negotiate a settlement or comply with unlawful orders. Many others will comply in advance, lest they remain targets of the president’s ire and risk their funding and livelihoods.
This underscores just how widespread the effects on First Amendment rights and principles will turn out to be. By virtue of their breadth, vagueness, and procedural violations, Trump’s executive orders and threats of agency enforcement will produce far more suppression of speech than normal agency action — which is limited by, among other things, resource considerations and legal process requirements. Although lawsuits are an important check, the chilling and suppressive effects of the Trump administration’s campaign are much broader and deeper than courts alone can address or resolve.
The daily chaos of Trump 2.0 can readily distract us from the fuller picture in terms of threats to free speech. As Professor Stephen Vladeck has correctly observed, “it seems that chaos and disruption are themselves central to President Trump’s objective.” However courts ultimately rule after tiresome and delayed litigation, much damage will already be done, some of it even irreversible.
Make no mistake: What we have seen in the early days of Trump 2.0 is an unprecedented government-wide and society-wide broadside against fundamental First Amendment commitments. And there is no indication that the Trump administration’s campaign is going to end any time soon.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Free speech related
Thompson v. United States (decided: 3-21-25/ 9-0 with special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.
The responsibilities of acting under secretary James Bergeron doubled as the Department of Education announced Wednesday that he will not only oversee the regulatory duties related to higher ed but manage the entire Office of Federal Student Aid.
Even in the wake of major layoffs, FSA remains the largest office in the department. It oversees the Free Application for Federal Student Aid, the allocation of Pell Grants and—at least for now—management of the $1.7 trillion student loan portfolio.
FSA had been led for much of the last year by Denise Carter, who is now retiring after more than 30 years working in the federal government. Carter also served as acting education secretary earlier this year. The department didn’t say in the news release why Carter was retiring now; the agency has offered early retirement offers and buyouts as part of an effort to reduce the workforce.
Carter said in the release she was grateful for the opportunity to serve her country.
“As I move on, I hope we as a nation commit to ensuring every student has the support needed to achieve extraordinary educational outcomes,” Carter added. “The economic strength of our nation depends on their success.”
“Global law firms have for years played an outsized role in undermining the judicial process and in the destruction of bedrock American principles.” —Executive Order (3-14-25)
“Law firms refuse to represent Trump opponents in the wake of his attacks” — The Washington Post (3-25-25)
The wolf is at the door.
Those who do not yet realize this may be forgiven for perhaps two reasons: They do not know the wolf is ravenous, and they do not know the door is ajar.
To get but a whiff of this, just read Brad Karp’s March 23 memo to his colleagues at the Paul Weiss firm, from which the title of this edition of FAN gets its title.
Also this, from MSNBC legal correspondent Lisa Rubin:
[The attacks on law firms] began with Trump issuing executive actions punishing three firms — Covington & Burling, which did not react; Perkins Coie, which fought back and won a partial temporary restraining order; and Paul Weiss, which ultimately capitulated to a deal announced last Thursday, the terms of which are still a matter of some debate. But the president has now directed Attorney General Pam Bondi, in a memo issued Friday night, to seek sanctions “against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States.”
Now back to the Paul, Weiss controversy.
A little background at the outset to help set the retributive stage: According to Wikipedia, Karp “is a bundler for Democratic Party presidential candidates . . . having raised sums for the presidential campaigns of Kamala Harris, Cory Booker, Joe Biden, Amy Klobuchar, and others.”
In other words, if Trump was out for political retribution, Karp was a perfect target. And then consider this: One of Karp’s former partners was Mark Pomerantz, author of “People vs. Donald Trump: An Inside Account,” which details the attempt to prosecute former president Donald Trump, written by one of the lawyers who worked on the case and who resigned in protest when Manhattan’s district attorney refused to act.
And now on to the Executive Order from March 14, “Addressing Risks from Paul Weiss.” Excerpts below:
In 2022, Paul Weiss hired unethical attorney Mark Pomerantz, who had previously left Paul Weiss to join the Manhattan District Attorney’s office solely to manufacture a prosecution against me and who, according to his co-workers, unethically led witnesses in ways designed to implicate me. After being unable to convince even Manhattan District Attorney Alvin Bragg that a fraud case was feasible, Pomerantz engaged in a media campaign to gin up support for this unwarranted prosecution.
Additionally, Paul Weiss discriminates against its own employees on the basis of race and other categories prohibited by civil rights laws. Paul Weiss, along with nearly every other large, influential, or industry leading law firm, makes decisions around ‘targets’ based on race and sex.
My Administration is committed to ending such unlawful discrimination perpetrated in the name of “diversity, equity, and inclusion” policies and ensuring that Federal benefits support the laws and policies of the United States, including those laws and policies promoting our national security and respecting the democratic process.
Now, the Weiss law firm’s memo in response, from Brad Karp:
Brad Karp
Only several days ago, our firm faced an existential crisis. The executive order could easily have destroyed our firm. It brought the full weight of the government down on our firm, our people, and our clients. In particular, it threatened our clients with the loss of their government contracts, and the loss of access to the government, if they continued to use the firm as their lawyers. And in an obvious effort to target all of you as well as the firm, it raised the specter that the government would not hire our employees.
We were hopeful that the legal industry would rally to our side, even though it had not done so in response to executive orders targeting other firms. We had tried to persuade other firms to come out in public support of Covington and Perkins Coie. And we waited for firms to support us in the wake of the President’s executive order targeting Paul, Weiss. Disappointingly, far from support, we learned that certain other firms were seeking to exploit our vulnerabilities by aggressively soliciting our clients and recruiting our attorneys.
We initially prepared to challenge the executive order in court, and a team of Paul, Weiss attorneys prepared a lawsuit in the finest traditions of the firm. But it became clear that, even if we were successful in initially enjoining the executive order in litigation, it would not solve the fundamental problem, which was that clients perceived our firm as being persona non grata with the Administration. We could prevent the executive order from taking effect, but we couldn’t erase it. Clients had told us that they were not going to be able to stay with us, even though they wanted to. It was very likely that our firm would not be able to survive a protracted dispute with the Administration.
Commentary:
President Donald Trump’s crackdown on lawyers is having a chilling effect on his opponents’ ability to defend themselves or challenge his actions in court, according to people who say they are struggling to find legal representation as a result of his challenges.
[Such executive orders and pressured settlements set] an ominous precedent for future presidents to exploit. . . . [H]ow can a lawyer who is considering representing a politically controversial client know that she will not be targeted the next time control of the White House changes hands? The safest course of action will be to avoid representing clients of any political salience, right or left, even if their cause is just.
Related
Constitutional scholars on the Trump Administration’s threats against Columbia University
We write as constitutional scholars — some liberal and some conservative — who seek to defend academic freedom and the First Amendment in the wake of the federal government’s recent treatment of Columbia University.
The First Amendment protects speech many of us find wrongheaded or deeply offensive, including anti-Israel advocacy and even antisemitic advocacy. The government may not threaten funding cuts as a tool to pressure recipients into suppressing such viewpoints. This is especially so for universities, which should be committed to respecting free speech.
At the same time, the First Amendment of course doesn’t protect antisemitic violence, true threats of violence, or certain kinds of speech that may properly be labeled ‘harassment.’ Title VI rightly requires universities to protect their students and other community members from such behavior. But the lines between legally unprotected harassment on the one hand and protected speech on the other are notoriously difficult to draw and are often fact-specific. In part because of that, any sanctions imposed on universities for Title VI violations must follow that statute’s well-established procedural rules, which help make clear what speech is sanctionable and what speech is constitutionally protected.
Yet the administration’s March 7 cancellation of $400 million in federal funding to Columbia University did not adhere to such procedural safeguards. Neither did its March 13 ultimatum stipulating that Columbia make numerous changes to its academic policies — including the demand that, within one week, it “provide a full plan” to place an entire “department under academic receivership for a minimum of five years” — as “a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.”
Signatories
Steven G. Calabresi Clayton J. and Henry R. Barber Professor of Law, Northwestern Law School
Erwin Chemerinsky Dean and Jesse H. Choper Distinguished Professor of Law, Berkeley Law School
David Cole Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown University Law Center
Michael C. Dorf Robert S. Stevens Professor of Law, Cornell Law School
Richard Epstein Laurence A. Tisch Professor of Law, NYU School of Law
Owen Fiss Sterling Professor Emeritus of Law, Yale Law School
Aziz Huq Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School
Pamela Karlan Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School
Randall Kennedy Michael R. Klein Professor of Law, Harvard Law School
Genevieve Lakier Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
Michael McConnell Richard and Frances Mallery Professor of Law, Stanford Law School
Michael Paulsen Distinguished University Chair and Professor, St. Thomas Law School
Robert Post Sterling Professor of Law, Yale Law School
David Rabban Dahr Jamail, Randall Hage Jamail, and Robert Lee Jamail Regents Chair in Law, University of Texas Law School
Geoffrey R. Stone Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
Nadine Strossen John Marshall Harlan II Professor of Law Emerita, New York Law School
Eugene Volokh Thomas M. Siebel Senior Fellow, Hoover Institution, Stanford University
Keith Whittington David Boies Professor of Law, Yale Law School
SCOTUS denies review in case urging that Sullivan be overruled
Wynn v. Associated Press (issue: Whether this Court should overturn Sullivan’s actual-malice standard or, at a minimum, overrule Curtis Publishing Co.’s expansion of it to public figures)
On the Trump administration targeting campuses
The United States is home to the best collection of research universities in the world. Those universities have contributed tremendously to America’s prosperity, health, and security. They are magnets for outstanding talent from throughout the country and around the world. The Trump administration’s recent attack on Columbia University puts all of that at risk, presenting the greatest threat to American universities since the Red Scare of the 1950s. Every American should be concerned.
Until recently, it was a little-known program to help Black and Latino students pursue business degrees.
But in January, conservative strategist Christopher Rufo flagged the program known as The PhD Project in social media posts that caught the attention of Republican politicians. The program is now at the center of a Trump administration campaign to root out diversity, equity and inclusion programs in higher education.
The U.S. Education Department last week said it was investigating dozens of universities for alleged racial discrimination, citing ties to the nonprofit organization. That followed a warning a month earlier that schools could lose federal money over “race-based preferences” in admissions, scholarships or any aspect of student life.
The investigations left some school leaders startled and confused, wondering what prompted the inquiries. Many scrambled to distance themselves from The PhD Project, which has aimed to help diversify the business world and higher education faculty.
Zoom webinar on strategies to combat attacks on free speech in academia
Thursday, March 27, 2025, 1:00 – 2:00 PM ET
As efforts to silence dissent grow more aggressive, the immediate and long-term threats to our constitutional freedoms — especially in educational institutions — cannot be ignored.
This virtual panel will bring together top legal minds and policy experts to examine how these actions affect student activists, journalists, and marginalized communities. Together, we’ll explore the legal strategies needed to safeguard First Amendment rights and resist the erosion of civil liberties.
Featured Panelists: Maria Kari, Human Rights Attorney Rep. Delia Ramirez (IL-03) Jenna Leventoff, Senior Policy Counsel, ACLU Stephen F. Rohde, MPAC Special Advisor on Free Speech and the First Amendment Whether you’re a student, educator, advocate, or supporter of civil rights, this is a conversation you won’t want to miss.
Register today and join us in defending the values that define our democracy.
Whittington on diversity statements and college hiring
Keith Whittington
The University of California is the godfather of the use of so-called diversity statements in faculty hiring. I have a piece forthcoming at the Nebraska Law Review arguing that such diversity statement requirements for general faculty hiring at state universities violate the First Amendment and violate academic freedom principles everywhere. It seems quite likely that in practice such diversity statement requirements are also used to facilitate illegal racial discrimination in faculty hiring.
The University of California system’s board of regents has now put an end to the use of such diversity statements at those schools. This is a truly remarkable development. Not unreasonably, this decision is being put in the context of the Trump administration’s extraordinary attack on Columbia University, a move that I think is both lawless and itself a threat to academic freedom. But there’s no question that it got the attention of university leaders across the country, and if it encourages some of them to rededicate themselves to their core institutional mission and its central values then at least some good will come of it. So silver linings and all that.
Trump rails against portrait at the Colorado Capitol
Institute for Free Speech files brief in campaign disclosure-fee case
The case is Sullivan v. Texas Ethics Commission. The issue in the case is whether — and if so, under what circumstances — the First Amendment permits the government to require ordinary citizens to register and pay a fee to communicate with their government representatives.
Amicus brief here. Counsel of record: Alan Gura. The Institute’s brief argues that the 1954 precedent of United States v. Harriss no longer reflects modern First Amendment jurisprudence and fails to protect the right to speak anonymously about matters of public policy.
Forthcoming book by Princeton’s president on campus free speech
The president of Princeton, a constitutional scholar, reveals how colleges are getting free speech on campuses right and how they can do better to nurture civil discourse and foster mutual respect
Conversations about higher education teem with accusations that American colleges and universities are betraying free speech, indoctrinating students with left-wing dogma, and censoring civil discussions. But these complaints are badly misguided.
In Terms of Respect, constitutional scholar and Princeton University president Christopher L. Eisgruber argues that colleges and universities are largely getting free speech right. Today’s students engage in vigorous discussions on sensitive topics and embrace both the opportunity to learn and the right to protest. Like past generations, they value free speech, but, like all of us, they sometimes misunderstand what it requires. Ultimately, the polarization and turmoil visible on many campuses reflect an American civic crisis that affects universities along with the rest of society. But colleges, Eisgruber argues, can help to promote civil discussion in this raucous, angry world — and they can show us how to embrace free speech without sacrificing ideals of equality, diversity, and respect.
Urgent and original, Terms of Respect is an ardent defense of our universities, and a hopeful vision for navigating the challenges that free speech provokes for us all.
Forthcoming scholarly article on AI and the First Amendment
This paper challenges the assumption that courts should grant outputs from large generative AI models, such as GPT-4 and Gemini, First Amendment protections. We argue that because these models lack intentionality, their outputs do not constitute speech as understood in the context of established legal precedent, so there can be no speech to protect. Furthermore, if the model outputs are not speech, users cannot claim a First Amendment right to receive the outputs.
We also argue that extending First Amendment rights to AI models would not serve the fundamental purposes of free speech, such as promoting a marketplace of ideas, facilitating self-governance, or fostering self-expression. In fact, granting First Amendment protections to AI models would be detrimental to society because it would hinder the government’s ability to regulate these powerful technologies effectively, potentially leading to the unchecked spread of misinformation and other harms.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Free speech related
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.
