“[I]n this moment, this moment, this morning, our sacred rule of law is under attack. Journalism is under attack. Universities are under attack. Freedom of speech is under attack. And insidious fear is reaching through our schools, our businesses, our homes, and into our private thoughts — the fear to speak in America.” – Scott Pelley
Begin there. The fifth and latest installment of Professor Timothy Zick’s “Executive Watch” comes against that backdrop . . . and yet more Trump administration threats to our First Amendment freedoms.
Simply consider some of the headlines of the past week or so:
There is, of course, more bad news, but you get the point even though so many “free speech for me, but not for thee” First Amendment defenders remain silent on the sidelines.
That said, let’s turn to what Professor Zick has to say in his latest “Executive Watch” post, presented below, which is followed by several news items, abstracts of two forthcoming books, and a list of free speech cases before the Court this term.
— rklc
Although the Trump administration’s agenda regarding freedom of expression can appear chaotic, one consistent strategy has been attacking institutions that are essential to check 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.
During his first term as president, Trump routinely attacked the media and other institutions that published or distributed information or opinions he did not like. During Trump 2.0, official actions against First Amendment institutions have become a central part of the administration’s agenda. These attacks are part of a campaign to control public discourse and weaken or destroy civic institutions. Prevalent in autocratic governments across the world, they are evidence of “democratic backsliding,” or reduced respect for democratic norms, rights, and institutions. Suppression of free expression and weakening of democratic institutions, which are two of the goals of recent executive action, are troubling signs of democratic backsliding.
Prof. Timothy Zick
The functions of First Amendment institutions
A variety of civic institutions produce, disseminate, and support the flow of information to the public. They participate in various American marketplaces of ideas. By informing public discourse, these institutions also facilitate the project of democratic self-government. And in their own respective ways, they inform, preserve and correct our understanding of history.
1. Media institutions
Although subject to increasingly frequent criticisms and attacks, print and broadcast media perform critical functions in terms of informing the public and checking governmental abuses. A free and independent press is vitally important to the project of democracy and the rule of law. The federal government has also historically funded broadcast stations to communicate information across the globe. Although supported by the government, those stations have likewise retained a degree of independence in terms of what issues and perspectives they choose to broadcast.
2. Educational institutions
Universities produce and disseminate knowledge through an academic process that relies on professional standards and expertise. Although they are not immune from governmental regulation, as the Supreme Court has observed a university can thrive only to the extent it can “determine for itself on academic grounds who may teach, what may be taught, how it should be taught, and who may be admitted to study.” These functions are generally grouped under the heading “academic freedom,” which the Court has recognized is a “special concern” of the First Amendment.
3. Lawyers and law firms
Law firms, and the private bar more generally, pursue a variety of cases and causes. One important part of their work is defending the rights and interests of those who suffer legal and constitutional harm because of governmental actions. Bar associations and members also protect the independence of the judiciary and, by extension, the rule of law. Their expressive activities, including representing indigent clients and those who engage in dissent and other unpopular activities, are an important safeguard against autocratic government.
3. Libraries and museums
Finally, public libraries and museums are important sources of information. Professional librarians curate and make available works on a wide variety of topics and perspectives. Museums are likewise vitally important repositories of information and knowledge, including about American history, democracy, and civil rights. They are essential to civic education.
Attacks on institutional independence
The Trump administration has targeted and attacked each of the mentioned institutions. Through executive orders, investigations, funding denials, employee dismissals, and other tactics, the administration has sought to control public discourse, undermine the independence of civic institutions, and avoid democratic accountability.
The media
As a candidate and as president, Donald Trump has been boldly transparent about his disdain for the institutional media. During his first term, Trump frequently derided the press as “the enemy of the people.” In his second term, the president has used a combination of executive power and his own litigation against the press to attack the media’s credibility and undermine its editorial independence.
Trump excluded the Associated Press from some White House events because they refused to use “Gulf of America” in their reporting. Trump’s Federal Communications Commission has opened investigations into broadcasters, threatening to revoke their licenses for alleged instances of broadcasting in a manner that is contrary to “the public interest.” Trump has personally filed frivolous lawsuits against broadcasters and media outlets, as part of a campaign to intimidate them into settling and, more importantly, to alter their coverage of stories about Trump or his administration.
The Trump administration has also attacked and sought to defund broadcast entities such as Voice of America and Radio Free Europe. In an executive order, Trump derided the Voice of America as the “Voice of Radical America.” Trump and administration officials have made clear that they view the public broadcaster as “anti-Trump.” In support of that claim, the executive order cites several unsubstantiated allegations in lawsuits and stories published by right-wing publications.
Detailing Voice of America’s transgressions, the order charges, among other things, that it has broadcast stories about white privilege, “downplayed” the Hunter Biden laptop story, aired a story that was “too favorable to presumptive Democratic nominee Joe Biden,” and “ran a segment about transgender migrants seeking asylum in the United States.”
In other words, the administration is seeking to defund and de-populate a broadcast station because it has broadcast stories that do not comport with its own narratives. To drive the point home, administration officials indicated that Voice of America outlets would henceforth receive feeds from a pro-Trump network.
The actions to end funding for PBS and NPR are but the latest in an orchestrated line of attempts to punish and control those in the press whose reports are not Trump flattering.
Universities
Through a combination of executive orders and agency actions, the administration has also coerced and punished universities. The thinly veiled pretext for its actions is two-fold: First, that the targeted universities are engaging in what the administration considers “Diversity, Equity and Inclusion” practices, and, second, that the targeted universities have failed to address or have encouraged “anti-Semitism” on their campuses.
Without providing the legal process required under federal laws, the administration has relied on such justifications to deny Harvard and other universities billions of dollars in federal funding, open protracted agency investigations, threaten the tax-exempt status of the university, and place some aspects of university operations under a form of receivership.
What is more, the administration has sought to influence or dictate aspects of universities’ operations — including campus policies on free expression and student discipline, hiring and admissions practices, and governance of academic departments. Since it publicly resisted the president’s demands, Harvard University has been subject to at least eight investigations by the administration.
Through its actions and these disproportionate punishments, the Trump administration has engaged in a vendetta against what it views as “elite” institutions that represent and allegedly inculcate disfavored “liberal” ideologies — including about race, gender, and the war in Gaza.
Libraries and museums
Finally, the Trump administration has taken several steps to defund and control the content of exhibits in American libraries and museums. An executive order calls for the elimination of the Institute of Museum and Library Services, the only federal agency dedicated to funding library services in the U.S.
The IMLS supports libraries through funding grants, research, and policy development. In 2024, the IMLS’ budget allocation was $266.7 million, or about 0.003% of the total federal budget. In response to the president’s orders attacking DEI, the library at West Point has removed books relating to race, sexual orientation, and other disfavored topics.
President Trump has also taken aim at museums, some of which he has determined display exhibits and information that cast America in a negative light. In an order entitled “Restoring Truth and Sanity to American History,” Trump directed the vice president and others to “seek[] to remove improper ideology from such properties.”
Several executive orders have retaliated against law firms for representing clients or assisting with causes the administration disfavors. Thus far, courts have seen these orders for precisely what they are — facially unconstitutional retaliation based on protected First Amendment activities. However, President Trump has “settled” the unproven and unspecified claims in other law firm executive orders. The administration has extracted from the capitulating law firms a vague commitment to participate in pro bono litigation on behalf of causes the administration supports. The president has indicated that commitment may include defending the Trump administration, free of charge, against lawsuits brought against it in the future.
Upping the stakes, President Trump also issued an executive order directing the attorney general to “seek sanctions against attorneys and law firms who engage in frivolous, vexatious litigation against the United States or in matters before executive departments and agencies of the United States.”
Although it does not indicate which actions are “frivolous,” or “vexatious,” it does mention the case involving allegations that Russia interfered in a U.S. election and immigration lawsuits. In addition to attorney discipline, as potential sanctions, the Order suggests revocation of lawyers’ security clearances and federal contracts.
Institutional independence and democratic backsliding
A good number of these actions, including retaliation against law firms based on their expressive activities, violate the First Amendment. Others, including the administration’s attacks on universities, may well have also violated the First Amendment. Still others, such as the administration’s gutting of the Voice of America, may raise separation of powers issues even if they do not give rise to formal First Amendment claims.
However, the problem runs deeper and is more systemic than any specific First Amendment violation or claim of suppression. Although First Amendment values are necessarily implicated whenever governments seek to suppress information or punish dissent, the Trump administration’s sustained attacks on certain institutions raise broader political and societal concerns.
Attacks on the media and governmental actions that seek to undermine its independence threaten vitally important truth-seeking, fact-checking, and civic education functions. Similarly, defundingentiresources of public information — for example, broadcast stations and libraries — diminishes the public’s access to information necessary to engage in public discourse. More specifically, it prevents critical analysis based on sources the administration in charge has not approved, or may indeed disfavor.
Further, official edicts to remove books and materials from West Point’s library, or the Smithsonian, based on the ideology — real or perceived — of the author or work deprive patrons of information and seek to impose official orthodoxies.
Universities exist to produce and disseminate knowledge on a host of issues, including history, science, and politics. As institutions dedicated to truth-seeking and the production of expert knowledge, public and private universities pose a special threat to political leaders who want to control public narratives. Thus, it is not surprising that autocratic governments frequently attack them. For example, the Hungarian government first banned gender studies and other topics from university classrooms. It then exerted more direct control over academic institutions, including through the installation of government-appointed foundations to operate and govern them. The Turkish government took the more drastic step of shuttering entire universities.
The Trump administration has yet to escalate its war on universities to that degree. But its campaigns against Harvard, Columbia, and others bear some of the same hallmarks. The Administration is using funding and investigations not to solve the problem of anti-Semitism or affirmative action, but to control universities’ internal governance and undermine their academic independence.
Alan Garber, Harvard’s president, informed Linda McMahon, Trump’s education secretary, that the university’s mission was “undermined and threatened by the federal government’s overreach into the constitutional freedoms of private universities and its continuing disregard of Harvard’s compliance with the law.”
The threat to universities is a threat to democracy itself. According to Tom Ginsburg, “Academic freedom is particularly relevant to democratic backsliding, because universities are a frequent target of leaders who seek to shape the polity to their own making and entrench their hold on power. One of the core strategies of such leaders is to try to control the public sphere.” Further, as Robert Post has warned, “a state that can manipulate the production of disciplinary knowledge can set the terms of its own legitimacy,” “undermine the capacity of citizens to form autonomous and critical opinions,” and “make a mockery of the obligation of democratic government to be responsive to the view of its citizens.”
Lawyers and the private Bar are among the last remaining checks on an administration operating without any congressional oversight or constraint. As Judge Beryl Howell observed in an opinion striking down one of President Trump’s many executive orders targeting law firms, “Eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power.”
An independent Bar is a check against autocratic and totalitarian government. The work of lawyers also supports the effective functioning of the judicial system which, as recent events have made clear, is itself necessary to preserve the rule of law.
Referencing William Shakespeare, Judge Howell noted, “In a cringe-worthy twist on the theatrical phrase ‘Let’s kill all the lawyers,’ [the Executive Order] takes the approach of ‘Let’s kill the lawyers I don’t like,’ sending the clear message: lawyers must stick to the party line, or else.”
That “cringe-worthy twist” has been a throughline in the administration’s attacks on a variety of institutions that could — indeed must — check its power.
Magarian on how Trump’s orders silence speech without banning it
[1] [T]he White House has already succeeded in leveraging government benefits to make major institutions change their speech.
[2] The Trump administration’s second form of indirect speech suppression is even more subtle — intimidating speakers into silence with actions that deter or “chill” expression without squarely banning it.
[3] The administration’s final tool of indirect speech suppression is propaganda. The 1st Amendment only bars the government from controlling private speech. When the government speaks, it can say what it wants. That means people who speak for the government lack any 1st Amendment right to replace the government’s messages with their own.
“[T]he privilege of the writ of habeas corpus can be suspended in a time of invasion. So it's an option we're actively looking at.” — Stephen Miller (May 9)
Paramount offered $15 million settlement, which president's legal team rejected, according to WSJ report.
President Trump’s legal team filed an objection to Paramount Global‘s move to dismiss his $20 billion lawsuit against CBS over a “60 Minutes” segment, arguing that the TV newsmagazine’s alleged deceptive editing of an interview with Kamala Harris is not protected by the First Amendment.
Trump filed the lawsuit against CBS just days before the 2024 presidential election, alleging the “60 Minutes” interview with Harris violated a Texas consumer protection law by misleading voters and caused Trump personal financial harm. His suit initially asked for $10 billion in damages. In February, the president amended the complaint to seek at least $20 billion.
See also:A copy of the Trump team’s motion, filed in the U.S. District Court for the Northern District of Texas.
Forthcoming book on ‘authoritarians in the academy’
A revealing exposé on how foreign authoritarian influence is undermining freedom and integrity within American higher education institutions.
In an era of globalized education, where ideals of freedom and inquiry should thrive, an alarming trend has emerged: foreign authoritarian regimes infiltrating American academia. In Authoritarians in the Academy, Sarah McLaughlin exposes how higher education institutions, long considered bastions of free thought, are compromising their values for financial gain and global partnerships.
This groundbreaking investigation reveals the subtle yet sweeping influence of authoritarian governments. University leaders are allowing censorship to flourish on campus, putting pressure on faculty, and silencing international student voices, all in the name of appeasing foreign powers. McLaughlin exposes the troubling reality where university leaders prioritize expansion and profit over the principles of free expression. The book describes incidents in classrooms where professors hesitate to discuss controversial topics and in boardrooms where administrators weigh the costs of offending oppressive regimes. McLaughlin offers a sobering look at how the compromises made in American academia reflect broader societal patterns seen in industries like tech, sports, and entertainment.
Meticulously researched and unapologetically candid, Authoritarians in the Academy is an essential read for anyone who believes in the transformative power of education and the necessity of safeguarding it from the creeping tide of authoritarianism.
Sarah McLaughlin is a senior scholar of global expression at the Foundation for Individual Rights and Expression.
Soon-to-be-released book on the war on science and threats to free speech
An unparalleled group of prominent scholars from wide-ranging disciplines detail ongoing efforts to impose ideological restrictions on science and scholarship throughout Western society.
From assaults on merit-based hiring to the policing of language and replacing well-established, disciplinary scholarship with ideological mantras, current science and scholarship are under threat throughout Western institutions. As this group of prominent scholars ranging across many different disciplines and political leanings detail, the very future of free inquiry and scientific progress is at risk. Many who have spoken up against this threat have lost their positions, and a climate of fear has arisen that strikes at the heart of modern education and research. Banding together to finally speak out, this brave and unprecedented group of scholars issues a clarion call for change.
Topics include: Free speech, victimhood, ideology, corruption of academic disciplines, cancel culture, DEI, gender, and race, and what we can do.
“Higher education isn’t what it used to be. Cancel Culture and DEI have caused many to keep their mouths shut. Not so the authors of this book. This collection of essays tells of threats to open inquiry, free speech, and the scientific process itself. A much-needed book.”— Sabine Hossenfelder, Physicist and Author of Existential Physics: A Scientist’s Guide to Life’s Biggest Questions.
In May 2023, hundreds of public figures signed a statement warning of the growing risk of human extinction from sophisticated artificial intelligence systems. Yet, in many important cases, the outputs of sophisticated artificial intelligence systems qualify as protected speech for First Amendment purposes. Regulators' increasing focus on the potential for artificial intelligence to extinguish humanity is thus minimally actionable.
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.)
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 order 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”)
“No American President has ever before issued executive orders like the one at issue in this lawsuit . . . The instant case presents an unprecedented attack on . . . foundational principles. . . . Here, deciding what process was due to plaintiff is unnecessary, because no process was provided.” —
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.
There are multiple issues. My focus has been on the First Amendment. The executive orders raise serious free speech/press issues.
But the lawsuits the stations have filed raise separation of powers claims as well. Congress, not the president, has the power of the purse. I think it would be a mistake for it not to fund the educational and other programming for these stations, but it could make that choice.
You are way off base in including the moves to "defund" PBS and NPR as an attack on the First Amendment. The First Amendment does not require taxpayers to fund so-called public media in the first instance. The pro-Democratic Party bias of both of these institutions is well documented. I object to being forced to pay to propagandize myself. That's the issue. It is not a First Amendment issue.
There are multiple issues. My focus has been on the First Amendment. The executive orders raise serious free speech/press issues.
But the lawsuits the stations have filed raise separation of powers claims as well. Congress, not the president, has the power of the purse. I think it would be a mistake for it not to fund the educational and other programming for these stations, but it could make that choice.
You are way off base in including the moves to "defund" PBS and NPR as an attack on the First Amendment. The First Amendment does not require taxpayers to fund so-called public media in the first instance. The pro-Democratic Party bias of both of these institutions is well documented. I object to being forced to pay to propagandize myself. That's the issue. It is not a First Amendment issue.