There’s some very weird, strange and dangerous shit going on out there right now. In America, they are persecuting people for using their right to free speech and voicing their dissent. This is happening now. — Bruce Springsteen (May 14)
Was “the Boss” being partisan there? Donald Trump thought so:
“This dried out ‘prune’ of a rocker (his skin is all atrophied!) ought to KEEP HIS MOUTH SHUT until he gets back into the Country, that’s just ‘standard fare.’ Then we’ll all see how it goes for him!”
Just goes to show that there are two sides, both of them “partisan.” The singer has his partisan views, and so does the suppressor. We just need to chill, get along, and hear both sides. Ah yes, a Kumbaya embrace — yuck!
The ‘Big Chill’
Do you remember those “nonpartisan” folks who were so outraged by what was going on in the cancel culture world of college campuses? How they lamented the way the censorial mindset was choking the First Amendment? Oh, those First Amendment champions were so incensed.
And fair enough, things were wildly out of control and those liberals responsible for supporting or allowing such censorship had to be called out. Again, fair enough. Of course, those who tolerated college censorship (dare I say “liberals”?) are now livid by what is going on. Rightfully so.
But where are those guardians of free speech (dare I say “conservatives”) now? When never a day goes by when the Trump administration does not abridge the First Amendment with wild abandon?
Censorship is censorship!
Given where we are today, I’m tired of such rhetorical gaming. Censorship is censorship, period! The hell with the thinking that one must walk on “nonpartisan” eggshells before speaking too loudly or too often against censorship when it is as constant as it is today under this administration.
Take heed: It was not partisan to boldly condemn John Adams or Woodrow Wilson or Joseph McCarthy for their crusades of suppression. And it was not partisan to call out their supporters who sat silently in the face of such tyranny. In such a world, there are not “two sides” such that the likes of Bill Maher could dine with “nonpartisan” delight with a “measured” opponent of free expression.
Seven free expression groups speak out — Yes!
Thus, I was delighted to learn that seven groups had written an open letter to “universities, media organizations, law firms, and businesses” to stand up against the “Trump administration’s multi-front assault on First Amendment freedoms.”
Before I say more, let me quote from the timely and important open letter that these seven groups just released. First this: “In little more than 100 days, President Trump and the agencies under his control have threatened First Amendment rights through a breathtaking array of actions.”
After that introduction, they listed an indictment of free speech abridgments, and in a style reminiscent of the indictment in the Declaration of Independence, they have delineated specific things the administration has done (I have added bullets to their text):
- They have sought to control speech and association by imposing unconstitutional conditions on a wide range of federal grantees and contractors.
- They have sanctioned lawyers for their representation of people whom the president views as political enemies.
- They have arrested, detained, and threatened to deport international students — including lawful permanent residents — solely because of their participation in lawful political protest.
- They have purged crucial datasets from government websites, gutted agency offices responsible for compliance with the Freedom of Information Act, and imposed new and indefensible restraints on public employees’ right to speak on matters of public concern.
- They have invoked civil rights laws to justify extensive and unwarranted intrusions into universities’ autonomy and academic freedom.
- Resurrecting a policy introduced during President Trump’s first term, they have barred legal scholars from providing information and expertise to the International Criminal Court.
- They have banned the Associated Press from the White House press pool because it declined to update its stylebook to refer to the Gulf of Mexico as the “Gulf of America.”
- Books have been removed from U.S. military service academy libraries, and other federally operated educational institutions, because they do not conform to the administration’s ideological preferences, and federal funds are being used as a cudgel to censor curriculum and promote the administration’s viewpoints in schools.
- The Federal Communications Commission has threatened to revoke the licenses of television and radio networks and stations whose reporting the administration disfavors.
As Professor Timothy Zick has so ably documented, the Trump administration’s assault on free expression is unprecedented. The following assessment from the seven groups echoes what is reliably set off in detailed form in Zick’s repository over at First Amendment Watch:
There have been other times in our nation’s history that witnessed sustained and misguided efforts to suppress speech. All of our organizations have opposed both Democratic and Republican administrations when they abridged First Amendment freedoms — as all of them, at various points, have done. But we share the view that the Trump administration’s actions, taken together, represent an extraordinary and in some ways unprecedented challenge to First Amendment rights and the values they embody [emphasis added]. These actions call for a forceful, uncompromising response. Some institutions have countered in exactly this way, to their credit.
Where the hell are other free speech groups and individuals?
Against that backdrop, I ask: where the hell are all those other groups, who when it came to campus censorship were so outspoken in defense of free expression? Why don’t they have their own open letters? Why are so many of those groups not openly endorsing the courageous assessments of those who, like Judge Michael Luttig, condemn the tyranny that is Trump? Too many conservative and liberal groups are afraid to speak out, afraid to put their names on the line.
What we are witnessing today is a BIG CHILL effect of enormous magnitude. Some liberals (in law firms, universities, think tanks, and elsewhere) are afraid to speak out, lest they be attacked by one of the president’s executive orders. By the same token, some conservatives are afraid to speak out (on their blogs or elsewhere) for fear that they will lose stock in their ideological world, or fall victim to Trump’s wrath.
Bottom line: Tyranny is tyranny, and condemning it is not partisan — it’s American!
Recent samples of the BIG CHILL in suppressive operation
- “Trump, visiting Capitol Hill, warns House Republicans against opposing his bill,” The Washington Post (May 20)
- “American universities and their undoing by the Trump administration,” DiEM25 (May 20)
- David Bauder, “CBS News CEO Wendy McMahon quits as potential Trump lawsuit settlement looms,” The Associated Press (May 19)
- Steve Benen, “Amid tensions over Trump’s bizarre lawsuit, CBS News’ chief steps down,” MSNBC (May 19)
- Rob Wile, “Trump takes on Walmart over tariff price hikes, setting up potential showdown with retail industry,” NBC News (May 19)
Related:
The decision by nine of America’s biggest law firms to “bend the knee” to President Trump drew condemnation among lawyers across the political spectrum, including from attorneys inside the firms who quit or launched resistance campaigns. Others have chosen a less career-limiting form of rebellion.
That would be offering leaks to Above the Law, a pugnacious legal industry website best known for scoops about law firm annual bonuses, snarky coverage of legal news and salacious stories of barristers behaving badly. But since March, when Mr. Trump began targeting for retribution top law firms whose clients and past work he does not like, Above the Law has become a rage read for lawyers incensed at the firms that accommodated him.
Fueled by a stream of inside-the-conference-room exclusives, Above the Law delivers a daily public spanking to what it calls “The Yellow-Bellied Nine.” Those are the elite firms that pledged a collective $1 billion in free legal work to Mr. Trump after he signed executive orders threatening to bar their lawyers from federal buildings, suspend their security clearances and cancel their government contracts.
Coming next week on FAN: Timothy Zick on institutional independence and democratic backsliding
Although the Trump Administration’s agenda regarding freedom of expression can appear chaotic, one consistent strategy has been attacking institutions that are essential to checking executive power. It is no accident that many of President Trump’s Executive Orders and the agency actions they direct have targeted the media, universities and faculty, law firms, libraries, and museums. These and other entities are sometimes referred to as “First Amendment institutions” or “knowledge institutions,” because they contribute to and facilitate public discourse and are necessary to a free and open society.
‘[Re]Distributed for Conference’ — SCOTUS mantra in some First Amendment cases
Apparently, the Justices are so overworked with all the Trump emergency appeals that they have to continue to pause on what to do with some of the First Amendment cases on their docket. For example, consider the following petitions:
Jessica Levinson on Comey, protected speech, and DOJ investigation
Questions are swirling following the launch of a federal investigation into former FBI Director James Comey over a now-deleted social media post of seashells arranged in the numbers “8647” on the beach. (“Eighty-six” is commonly understood to mean “get rid of.” President Trump is the 45th and 47th President of the United States.) Was Comey calling for the assassination of Trump? Or was he, as he has since stated, expressing a political opinion about Trump?
If Comey’s post amounted to a siren song, beseeching others to kill the president, he can be punished for his speech. But should Comey’s post be viewed as political advocacy, which I argue it should, he is entitled to the full protection of the First Amendment.
The genuine threat is not that a president’s life is in danger, but that the Trump administration is attempting to silence the speech of political adversaries. Even if it is unlikely that Comey faces anything more than a slap on the wrist for his post, the decision to open an investigation in and of itself should be worrisome. Comey has access to the media and resources to defend himself. Not everyone does. And the prospect of chilling political speech critical of government officials should concern all of us.
Statement from the Institute for Free Speech on party coordination limits
The Institute for Free Speech commends the Department of Justice’s decision in National Republican Senatorial Committee v. FEC to acknowledge that federal limits on coordinated expenditures between political parties and their candidates violate the First Amendment. In a dramatic and unusual shift, the DOJ is now asking the Supreme Court to overturn its 2001 decision in Colorado Republican Federal Campaign Committee v. FEC (Colorado II).
“The Solicitor General’s recommendation that the Court grant the petition is a commendable move that acknowledges the First Amendment flaws in these limits,” said Institute President David Keating. “As we argued in our amicus brief, the factual basis underpinning Colorado II has been proven wrong by real-world evidence.”
The Institute’s brief demonstrated that over half the states allow unlimited party coordination, including 17 states that also restrict individual contributions—yet there is no evidence of these arrangements leading to corruption. The DOJ’s brief now acknowledges this reality, recognizing that the law represents a “prophylaxis-upon-prophylaxis approach” that fails heightened First Amendment scrutiny.
“When more than half the states manage to operate elections without restricting coordinated party expenditures and without giving rise to any relevant quid pro quo corruption, it is hard to believe that the law is ‘necessary to prevent the anticipated harm,’” noted the Institute’s brief.
The NRSC case challenges federal limits on how much political parties can spend in coordination with their candidates under 52 U.S.C. 30116(d). These restrictions severely burden the core function of political parties—to support and promote their candidates.
[ . . . ]
To read the Institute’s amicus brief in the case National Republican Senatorial Committee v. FEC, click here. To read the Solicitor General’s just-filed brief, click here. To read Institute Senior Attorney Brett Nolan’s expert analysis on the Sixth Circuit’s decision in NRSC, click here.
Claim: The ‘deluge of pornography has had a negative impact on modern society’
It’s hard not to see a connection between porn-trained behaviors — the choking, slapping and spitting that have become the norm even in early sexual encounters — and young women’s distrust of young men. And in the future, porn will become only more addictive and effective as a teacher, as virtual reality makes it more immersive and artificial intelligence allows it to be customizable. (For a foretaste of where this might end up, you can read a recent essay by Aella, a researcher and sex worker, on Substack defending A.I. child porn.)
In her new book “Girl on Girl: How Pop Culture Turned a Generation of Women Against Themselves,” Sophie Gilbert critiques the mass culture of the 1990s and 2000s, noting how it was built on female objectification and hyperexposure. A generation of women, she explains, were persuaded by the ideas that bodies were commodities to be molded, surveilled, fetishized or made the butt of the joke, that sexual power, which might give some fleeting leverage, was the only power worth having. This lie curdled the emerging promise of 20th-century feminism, and as our ambitions shrank, the potential for exploitation grew.
[ . . . ]
[W]hile Ms. Gilbert is unsparing in her descriptions of pornography’s warping effect on culture and its consumers, she’s curiously reluctant to acknowledge what seems obvious: Porn hasn’t been good for us. While her descriptions of the cultural landscape imply that the mainstreaming of hard-core porn has been a bad thing, she pulls her punches.” (emphasis added)
Forthcoming scholarly essay on ‘Fascist Government Speech’
On the day he was sworn in for a second term, President Trump issued pardons and commutations to all of his supporters who attacked the U.S. Capitol on January 6, 2021. This sweeping act of clemency gave legal effect to a longstanding grievance: Ever since the attack, which disrupted congressional certification of his 2020 election defeat, President Trump has consistently glorified the attackers and denounced their prosecutors. In defending the clemencies two days after issuing them, President Trump reiterated familiar themes — once more refusing to acknowledge that he lost the 2020 election, celebrating the patriotism of his supporters, and maligning those who pursued their accountability through what became the largest criminal investigation in U.S. history.
President Trump’s script was so familiar that it obscured a constitutional novelty. For most of the time between the January 6 attack and the subsequent clemencies, President Trump was not the president. He was a private citizen, and his speech about January 6 was protected by the First Amendment even to the extent that it was false or dangerous. But, by noon on January 20, 2025, he was once again President Trump—a government official, speaking on behalf of the government, and thus uttering government speech. Government speech is not protected by the First Amendment, but rather by an evolving set of Court-fashioned rules known collectively as the government-speech doctrine. In an instant, his comments took on an entirely new constitutional cast.
Ordinarily, this transition would be unremarkable; it occurs whenever a private citizen assumes a governmental role. But, combined with their content, President Trump’s statements — on this subject and many others — create a serious First Amendment problem. His remarks are deeply and distinctly illiberal, calibrated to undermine, falsely, the democratic legitimacy of a previous administration and to rewrite the history of an insurrectionist threat that would have allowed him to maintain power by violent and anti-democratic means. It is fascist speech, which invites wildly different constitutional analysis depending on its source.
Accordingly, this paper introduces and evaluates the concept of fascist government speech — a category we can no longer afford to ignore. Our First Amendment free-speech rights spring in substantial part from a commitment to self-governance, and the protections that follow generally extend to private fascist speech as part of a forceful commitment to free debate that courts and scholars have long believed would facilitate a robust democracy. By contrast, the basis of the government-speech doctrine is functional necessity, a recognition that our democratic self-governance would be rendered ineffective if the government could not spread its message. That backstory simply cannot justify protecting fascist government speech, which directly undermines the basis for governmental communicative prerogatives. Yet the doctrine, as constituted, ultimately does protect fascist government speech. Worse still, the doctrine operates to abrogate private free-speech claims, a result that is distinctly perverse when the abrogation functions to amplify fascist government speech. This paper therefore argues for significant revision to the government-speech doctrine to blunt the threat of fascist government speech.
More in the news
- “Trump Signs a Bill To Make Posting ‘Revenge Porn’ a Federal Crime. He Had the First Lady Sign, Too,” First Amendment Watch (May 20)
- Eugene Volokh, “OpenAI Wins Libel Lawsuit Brought by Gun Rights Activist Over Hallucinated Embezzlement Claims,” The Volokh Conspiracy (May 20)
- “Kansas Group Fights Campaign Donor Law It Sees as a Response to Its Success Defending Abortion,” First Amendment Watch (May 20)
- “Protest buffer zone must be reconsidered in Karen Read trial, 1st Circuit rules,” The Free Speech Center (May 19)
- Adam Goldstein, “Charles Negy was fired over a tweet — now he’s having his day in court,” FIRE (May 19)
- “REPORT: More than 600 college students and student groups punished or investigated for speech in five years,” FIRE (May 15)
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”)
Last scheduled FAN
FAN 470: “Trump’s ‘So what?’ stratagem”
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.
