Tag: threat

  • Harvard Faculty, AAUP Challenge Trump Administration’s $8.7 Billion Funding Threat

    Harvard Faculty, AAUP Challenge Trump Administration’s $8.7 Billion Funding Threat

    In what legal experts are calling a landmark case for academic freedom, Harvard faculty and the American Association of University Professors (AAUP) have filed a lawsuit against the Trump administration, alleging unconstitutional attempts to control campus speech and governance through threatened funding cuts.

    The legal action, filed Friday, seeks to block the administration from withholding $8.7 billion in federal funding for Harvard University and its affiliated hospitals after demands that the university implement specific policy changes and restructure its operations.

    According to court documents, the administration’s Joint Task Force to Combat Anti-Semitism issued a demand letter on April 3 outlining “immediate next steps” Harvard must take to maintain its “financial relationship with the United States government.” These demands reportedly extend far beyond addressing antisemitism, including new speech restrictions, elimination of all diversity, equity, and inclusion programs, and mandatory cooperation with the Department of Homeland Security.

    “The First Amendment does not permit government officials to use the power of their office to silence critics and suppress speech they don’t like,” said Andrew Manuel Crespo, Morris Wasserstein Professor of Law at Harvard and general counsel of the AAUP-Harvard Faculty Chapter. “Harvard faculty have the constitutional right to speak, teach, and conduct research without fearing that the government will retaliate against their viewpoints by canceling grants.”

    The lawsuit comes after the task force chair announced on Fox News in March that “the academic system in this country has been hijacked by the left, has been hijacked by the Marxists,” and threatened to “bankrupt these universities” by removing federal funding.

    Harvard professors involved in the lawsuit claim the administration’s threats have already begun to impact academic freedom on campus.

    “The research and teaching of Harvard faculty have already been chilled by the Trump administration’s attempt to coerce the university into changing its curriculum and governing structure,” said Dr. Kirsten Weld, professor of History and president of the AAUP-Harvard Faculty Chapter. “If Trump can threaten to withhold billions of dollars from our colleagues unless we stop teaching about diversity and inclusion, he can make the same threat to try and stop us from teaching about science, his critics, or anything else.”

    The plaintiffs have requested an immediate temporary restraining order to prevent any funding cuts while the case proceeds.

    The AAUP warns that allowing such governmental intrusion at Harvard could set a dangerous precedent for institutions nationwide.

    “Our students and faculty members across the nation are terrified,” said Veena Dubal, AAUP General Counsel. “If the administration’s lawless and unconstitutional attempts to control speech and governance at Harvard are allowed to proceed, then any one of our institutions could be next.”

    Dr. Todd Wolfson, president of the AAUP, characterized the administration’s actions as “an attack on democracy and economic mobility” with harms that “will be so irreparable that they will last generations.”

    At the heart of the case is whether the federal government can legally condition billions in funding on compliance with policy demands that appear to target specific viewpoints and academic content.

    Nikolas Bowie, Louis D. Brandeis Professor of Law at Harvard and secretary-treasurer of the AAUP-Harvard Faculty Chapter, argues there is no legal basis for the administration’s actions.

    “No law in this country permits President Trump to suspend billions of dollars from universities like Penn, Princeton, or Harvard simply because he doesn’t like their policies on transgender athletes, their research on climate change, or the constitutionally protected speech of their students and faculty.”

    Legal experts note that the case could potentially reach the United States Supreme Court, given its significant First Amendment and separation of powers implications.

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  • ‘Executive Watch’: The breadth and depth of the Trump administration’s threat to the First Amendment — First Amendment News 465

    ‘Executive Watch’: The breadth and depth of the Trump administration’s threat to the First Amendment — First Amendment News 465

    Given the Trump administration’s continued and varied assaults on the First Amendment, it is vital to monitor those attacks and then realize the gravity of the “sweeping and draconian sanctions” imposed by unconstitutional executive fiat. Vigilance is especially important, as New York Times investigative reporter Michael S. Schmidt has noted, because “Mr. Trump has employed tactics including lawsuits, executive orders, regulations, dismissals from government jobs, withdrawal of security details and public intimidation to take on a wide range of individuals and institutions he views as having unfairly pursued him or sought to block his agenda.” 

    Mindful of such matters, this installment of “Executive Watch” by professor Timothy Zick provides the most comprehensive and informed account of the current threats facing us up to now. 

    Of course, yet more posts are forthcoming. Meanwhile, it is worth heeding the sound advice recently offered by Dean Erwin Chemerinsky: “despite the risks of speaking out, silence itself comes at enormous cost.”

    — rklc


    My introductory post, which was published a little more than a month after Donald Trump took office for the second time, identified various areas in which his administration’s actions threatened First Amendment rights. At this point, even before the first 100 days of the second Trump administration have elapsed, we now have a much fuller picture of the nature and scope of the threat — and it’s even worse than we thought. 

    Media stories and commentary have covered a range of Trump administration policies and actions that threaten speech and press rights. Commentators have examined the attacks on media, law firms, government employees, and universities, among others. My last post discussed Trump’s abuse of the civil lawsuit to punish the media and others.

    Considered in isolation, these actions raise troubling First Amendment concerns. But the whole threat to the First Amendment is far greater than the sum of its damaging parts. Combined, the administration’s actions represent a whole-of-government and whole-of-society effort to control whether and how Americans talk about certain ideas. 

    Trump 1.0 and the First Amendment

    As it concerns the First Amendment, the fundamental difference between Trump 1.0 and Trump 2.0 is the extraordinary use of the levers of governmental power to suppress, dictate, and coerce viewpoints the president disfavors.

    During the first administration, the threat to the First Amendment emanated primarily from the president’s own statements and threatened actions. Trump talked about “opening up” the libel laws to make it easier to sue media defendants. He waged a constant war on the press, which he referred to as “the enemy of the people.” He demanded loyalty, attacked those who disagreed with his views on patriotism and dissent, and threatened to punish media outlets by revoking their licenses. He also threatened to shut down social media platforms that fact-checked him.

    Prof. Timothy Zick

    During the 2016 presidential election, Trump called for de-naturalizing and jailing protesters who burned the U.S. flag. As president, he routinely denigrated protesters. During the Black Lives Matter demonstrations, Trump considered invoking the Insurrection Act to call up U.S. military personnel to quell protest-related civil unrest. He sent federal agents to Portland and other cities to police and quell protests. At one point during the demonstrations, Trump reportedly asked his then-secretary of defense why protesters couldn’t be shot. And, of course, after he lost the 2020 election he used his own speech to incite the Capitol insurrection on Jan. 6, 2021.

    It was clear during his first term that Trump had little or no tolerance for dissent, and a strong desire to impose his will on the media and other institutions. However, for the most part, he either didn’t or couldn’t effectuate that agenda. Perhaps this was because members of his administration talked him out of it, or perhaps because he was not yet familiar with the levers of power.

    Trump 2.0 and executive orders

    Trump 2.0 has been a vastly different story. Past presidents, including Trump, have used executive orders to exercise or augment their executive powers. They have set important agendas for the executive branch of government. However, no president has ever used executive orders to attempt to control what Americans can discuss, or how they speak about concepts regarding diversity, patriotism, anti-Semitism, gender, and other matters of public concern. And no president has been as successful at extending such an agenda across not just the federal bureaucracy but nearly every aspect of society.

    Thus far, President Trump has issued eighteent Executive Orders, plus several accompanying “Fact Sheets,” that implicate First Amendment rights. Although some of the Orders are vague and/or thin on specifics, many target expression based on its viewpoint – a quintessential violation of the First Amendment.  

    • Five of the Executive Orders target law firms based on their representation of clients and advocacy for causes the President disfavors.
    • Three Orders prohibit universities, companies, and others receiving federal funds from maintaining “Diversity, Equity, and Inclusion” (DEI) policies and practices – including training, teaching, and supporting those ideas.
    • Trump’s Orders also target “anti-Semitic” speech by federal grantees and encourage universities to monitor “pro-jihadist protests” and campus “radicalism.”
    • An Executive Order requires that K-12 schools adopt “patriotic” curricula and further vows to withhold funding from any schools that teach that the United States is “fundamentally racist, sexist or otherwise discriminatory.”
    • Other Orders provide that resident aliens who express “hatred for America” or “bear hostile attitudes toward [American] citizens, culture, government, institutions, or founding principles” are subject to deportation.
    • Two of Trump’s Executive Orders single out transgender individuals, banning them from military service and imposing restrictions on the genders they can use on U.S. passports. These Orders raise important equal protection concerns, but also bar individuals from communicating about their own gender identity.
    • Finally, the Administration’s cost-cutting and desire to control the flow of information have deeply affected the availability and distribution of information in the United States. Trump has ordered the disbanding of Voice of America and Radio Free Europe, important outlets for furthering American interests abroad. Trump’s spending cuts have also decimated libraries, which are critical distributors of information. Trump recently issued an Executive Order that purports to remove “anti-American ideology” from the Smithsonian Museum.

    TRUMP’S FIRST 80 DAYS
    Executive orders affecting free speech and press: 18
    Federal agencies involved in enforcement: 20
    Lawsuits raising First Amendment challenges: 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:

    • The Federal Bureau of Investigation
    • The Department of Justice
    • The Department of Health and Human Services
    • The Department of Education
    • The General Services Administration
    • The Department of Homeland Security
    • The State Department
    • U.S. Immigration and Customs Enforcement
    • U.S. Customs and Border Patrol
    • The Federal Communications Commission
    • The Office of Personnel Management
    • The Agency for Healthcare Research and Quality
    • The United States Agency for Global Media
    • The Federal Trade Commission 

    In contrast to Trump 1.0, during Trump 2.0 the entire agency alphabet soup is fully committed to enforcing executive orders that require adoption of official orthodoxies and ideologies, or punish individuals or institutions for their viewpoints. Pursuant to these executive orders, federal agencies have investigated employers and universities based on their support for DEItargeted law firms based on their clients and causes, arrested international students based on their political advocacy, investigated broadcast stations based on the content of their shows, and removed scientific papers from public databases because they include forbidden words about gender or diversity. 

    Agencies across government are involved in enforcing Trump’s executive orders in areas ranging from private business to immigration. Ironically, the president’s ability to control and punish expression is due, in large part, to the size of the federal government he has targeted for downsizing or eradication.

    The whole-of-society impact of the executive orders

    Trump’s executive orders bind all federal agencies under his command. Agencies across regulatory areas have moved swiftly to scrub websites of offensive DEI language. Their efforts to comply with Trump’s directive have at times been comical. The Defense Department apparently removed material about the Enola Gay, the aircraft that dropped the atomic bomb on Hiroshima, because of its name. Agencies have also removed information about Jackie Robinson and other material that celebrates the accomplishments of black people and women. Taking a “chainsaw” approach to language in public-facing websites, agencies have removed information that does not comport with the president’s preferred terms and viewpoints.

    “In a pre-election poll, respondents ranked ‘free speech’ among the top issues that were ‘very important’ in influencing their vote for president.”

     FIRE/NORC poll of 1,022 Americans conducted Oct. 11-14, 2024

    The federal government is an important source of information for issues relating to public health, the armed forces, employment, and other matters. Governments can determine what messages they want to communicate, including on websites they control, but those efforts can have harmful effects on the distribution of information to the public. 

    Trump’s orders have also limited the availability of information, both at home and abroad. They have silenced the nation’s voice in international spheres, cut off aid to libraries, and even demanded that museums change exhibits that convey “anti-American ideology.” Again, no president has ever used executive orders to so comprehensively control what can be seen, heard, or viewed. 

    Trump’s executive orders have also affected millions of individuals, entities, and institutions beyond federal agencies. Indeed, it is hard to overstate the breadth and depth of the activities covered by the existing executive orders — and they continue to be issued almost daily. The orders have already extended into every boardroom, classroom, breakroom, and laboratory in the United States. Businesses have shut down activities recognizing the value of a diverse workforce. Universities have scrubbed websites and materials of any references to the values of diversity in education. Legal counsel at some hospitals have even warned staff not to use “triggering” words like “vulnerable” or “diverse” to describe patients. 

    How Trump has expanded his power over expression

    Four things account for the extraordinary scope and effect of the Trump administration’s campaign to control what Americans see, hear, and say regarding gender, race, and American history.

    First, in contrast to Trump 1.0, the president has relied more extensively on executive orders as a means of governing. Trump’s more than 100 executive orders cover everything from the types of straws that can be used in federal buildings, the legitimate causes law firms can pursue, and the content of displays at the Smithsonian Museum.

    “There . . . can be no question that the demands the administration is making of Harvard are intended to suppress protected expression, of various kinds. To avoid the loss of federal funds, Harvard will have to refrain from advocating for, or empowering others to advocate for, the viewpoint that diversity, equality, and inclusion are important educational and social values. It will have to change how it oversees faculty research and teaching, and what kinds of scholarly viewpoints it hires and promotes. And it will have to suppress student speech and association, including core political expression, more severely than it has chosen to do so far—or at least it will have to promise to do so.”

    Genevieve Lakier

    Second, the orders use the threat of lost federal funding as an enforcement mechanism. Federal funding touches nearly every aspect of American life. That includes education at all levels, health care, immigration, the practice of law, scientific research, and even farming. 

    Third, because the executive orders lack any meaningful specificity about concepts and ideas it targets, including “DEI” and “anti-Semitism,” no federal grantee can be sure which words, phrases, or ideas will result in a denial of critical funding. This lack of clarity has produced significant uncertainty at universities, hospitals, businesses, and other funding recipients. And that uncertainty has led to anticipatory compliance on a scale that federal anti-discrimination and other laws do not require.

    Fourth, the administration has not provided the process required by federal law to deny or remove federal funding. This enhances the chill of agency enforcement by speeding up the denial of funds, leaving grantees with little recourse to contest allegations or charges prior to loss of funding.

    Fifth, for many of the above reasons, the Orders have engendered a repressive fear in federal fund recipients — a fear, as Ronald Collins points out, that is “born of direct or veiled demands for loyalty” and the specter of punishment for dissent. Thus, words and phrases must be removed, lectures canceled, and “deals” inked that trade away law firms’ First Amendment rights for relief from facially retributive and unconstitutional Executive Orders. 

    To be sure, some will challenge these executive orders on First Amendment grounds. Indeed, nearly 30 lawsuits raising First Amendment claims have already been filed. But many more grantees will decide, as Columbia University and the Paul Weiss law firm recently have, to negotiate a settlement or comply with unlawful orders. Many others will comply in advance, lest they remain targets of the president’s ire and risk their funding and livelihoods. 

    This underscores just how widespread the effects on First Amendment rights and principles will turn out to be. By virtue of their breadth, vagueness, and procedural violations, Trump’s executive orders and threats of agency enforcement will produce far more suppression of speech than normal agency action — which is limited by, among other things, resource considerations and legal process requirements. Although lawsuits are an important check, the chilling and suppressive effects of the Trump administration’s campaign are much broader and deeper than courts alone can address or resolve. 

    The daily chaos of Trump 2.0 can readily distract us from the fuller picture in terms of threats to free speech. As Professor Stephen Vladeck has correctly observed, “it seems that chaos and disruption are themselves central to President Trump’s objective.” However courts ultimately rule after tiresome and delayed litigation, much damage will already be done, some of it even irreversible.  

    Make no mistake: What we have seen in the early days of Trump 2.0 is an unprecedented government-wide and society-wide broadside against fundamental First Amendment commitments. And there is no indication that the Trump administration’s campaign is going to end any time soon. 

    2024-2025 SCOTUS term: Free expression and related cases

    Cases decided 

    • Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
    • Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
    • TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

    Review granted

    Pending petitions 

    Petitions denied

    Free speech related

    • Thompson v. United States (decided: 3-21-25/ 9-0 with special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)

    Last scheduled FAN

    FAN 464: “Free speech in an age of fear: The new system loyalty oaths

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

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  • Trump’s threat to deport anti-Israel protesters is an attack on free speech

    Trump’s threat to deport anti-Israel protesters is an attack on free speech

    This article originally appeared in MSNBC on Jan. 31, 2025.


    The campus controversies inflamed by the Oct. 7, 2023, Hamas attack against Israel and Israel’s subsequent war in Gaza have reached a worrying conclusion. Now, with President Donald Trump’s promise to deport those he deems “pro-jihadist” protesters, we’re facing questions not just about which ideas and speech should be allowed on campus, but whether foreign students should be deported for expressing disfavored views.

    On Wednesday, Trump signed an executive order on antisemitism that directs leaders of agencies, including the secretary of homeland security, to familiarize universities with grounds for inadmissibility for foreign nationals “so that such institutions may monitor for and report activities by alien students and staff relevant to those grounds.” Those reports will then lead “to investigations and, if warranted, actions to remove such aliens.”

    This development should worry all Americans, regardless of their position on the Israel-Hamas war.

    The order implies that universities should be monitoring and reporting students for scrutiny by immigration officials, including for speech that is protected by the First Amendment. It follows last week’s executive order threatening denial of entry to foreign nationals, or even deportation of those currently in the country, who “espouse hateful ideology.”

    Free Speech Dispatch

    Page

    The Free Speech Dispatch is a new regular series covering new and continuing censorship trends and challenges around the world. Our goal is to help readers better understand the global context of free expression.


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    Student visa holders in the U.S. already risk deportation by engaging in criminal activity, and did so long before the enactment of this order. Students who commit crimes — including vandalism, threats or violence — must face consequences, including potential revocation of visas when appropriate.

    The First Amendment does not protect violence, for visitors and citizens alike, and an executive order narrowly confined to targeting illegal acts would not implicate First Amendment rights.

    But a fact sheet released by the White House alongside the executive order goes well beyond criminal grounds for removal of foreign nationals to instead threaten viewpoint-motivated deportations. “To all the resident aliens who joined in the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you,” Trump said. “I will also quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before.”

    If that’s what the Trump White House expects agencies to read into its formal orders, this development should worry all Americans, regardless of their position on the Israel-Hamas war.

    Advocates of ideological deportation today should not be surprised to see it used against ideas they support in the future.

    Our nation’s campuses are intended to be places of learning and debate that facilitate a wide range of views, even ones that some consider hateful or offensive.

    This openness, albeit unpleasant or controversial at times, is a defining strength of American higher education. It’s one of the features attractive to students traveling from abroad who may hope to take part in the speech protections Americans have worked so hard to preserve. These are protections that they may very well be denied in their home countries.


    We won’t protect freedom on campus by making it inaccessible to the international students who study there. But, given the warning accompanying the order, international students will now be rightfully afraid that their words — not just their conduct — are under a microscope.

    There are already signs that critics of campus demonstrations expect the administration will expel protesters from the country. In the lead-up to the signing of this latest order, pro-Israel advocates claimed to be in contact with officials in the incoming Trump administration concerning lists of student protesters they hope to see deported. One group, Betar, told the New York Post it’s “using a combination of facial recognition software and ‘relationship database technology’” to identify protest attendees who are foreign nationals.

    Freedom of speech was never meant to be easy.

    At the Foundation for Individual Rights and Expression (FIRE), where I work, we have seen firsthand the many speech-related controversies that have plagued higher education over the decades. In every case, adhering to viewpoint-neutral principles, rather than censorship, has been the proper solution. 

    If we open the door to expelling foreign students who peacefully express ideas out of step with the current administration about the Israeli-Palestinian conflict, we should expect it to swing wider to encompass other viewpoints too. Today it may be alleged “Hamas sympathizers” facing threats of deportation for their political expression. Who could it be in four years? In eight?

    Advocates of ideological deportation today should not be surprised to see it used against ideas they support in the future.

    Why (most) calls for genocide are protected speech

    News

    Creating a “genocide” exception to free speech only opens the door to more speech restrictions and selective enforcement.


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    In Bridges v. Wixon, the Supreme Court’s 1945 decision rejecting the deportation of Australian immigrant Harry Bridges over alleged Communist Party connections, Justice William Douglas wrote, “Freedom of speech and of press is accorded aliens residing in this country.”

    Later decisions from the court complicate the question. The federal government retains significant authority over those who may enter and stay in the country. But the court’s reasoning in Wixon should provide lasting guidance.

    In his concurring opinion, Justice Frank Murphy stated that he “cannot agree that the framers of the Constitution meant to make such an empty mockery of human freedom” by allowing the government to deport an alien over speech for which it could not imprison him.

    Freedom of speech was never meant to be easy. But it allows us the space we need to work through thorny social and political challenges, even when it’s fraught with friction and discomfort. The United States should preserve this freedom on our campuses — spaces for free learning that set us apart from more authoritarian nations around the world — not make an “empty mockery” of it.

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