The good news is that my friends at FIRE recently sued Secretary of State Marco Rubio, challenging two federal immigration law provisions that give him unchecked power to revoke legal immigrants’ visas and deport them for protected speech. Such informed and valiant actions, along with those of the Knight Institute and others, are vital if our free speech rights are to be safeguarded.
The bad news is, they are not enough.
The Trump administration’s abuses of executive power suggest a paradigm shift concerning how we should perceive and address “abridgments” of expression. This relates to how First Amendment lawyers counsel their clients, how such law professors teach classes, and how students learn their free speech lessons. Against the backdrop of the president’s flood of executive actions, at least one important question arises: What to do when judicial review provides inadequate protection of First Amendment rights?
“University presidents — at least those with even the slightest instinct for self-preservation — do not want their schools weighing in on matters related to war in the Middle East. And they understand that the Trump administration, which, by the evidence, seems to loathe elite higher education generally and the Ivy League specifically, is on the hunt for proof that these schools are irretrievably “woke,” diversity-obsessed, anti-Republican, and anti-Semitic.”
Think of it: In the absence of any judicial resolution, the Trump administration has intimidated universities, law firms, media outlets, immigrants, and congressionally-approved grant recipients, among others, to grovel to its arbitrary will. As if that were not enough, story after news story report that more and more judicial orders are being ignored. As Steven Richman (Chair, International Bar Issues Commission) has observed:
To say that it’s still an open question as to whether or not the executive can simply defy the courts would severely challenge respect for the institutions. There have been some commentators saying it may get to the point where President Trump just has to assert executive authority and ignore the courts. This has the potential to undo two centuries of precedent relating to judicial review under Marbury v Madison. To say that it’s still an open question as to whether or not the executive can simply defy the courts would severely challenge respect for the institutions.
And yet that “respect” has been challenged with ever-increasing frequency.
“For months,” The Guardianreports, “the Trump administration has made it clear they believe they can ignore judicial orders. ‘Judges aren’t allowed to control the executive’s legitimate power,’ vice-president JD Vance tweeted on 9 February.”
True to that raw assertion of power, TheWashington Post conducted an analysis of 165 court orders filed against the Trump administration. It “found that it was accused of resisting court orders in at least 57 of those cases — approximately 34 percent.” Add to that the fact that federal judges who rule against the Trump administration are being threatened with physical violence and impeachment. And a federal appeals three-judge panel (stacked with Trump-appointed jurists) recently blocked contempt proceedings against Trump officials for failure to honor judicial orders.
A 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 or enforced by all federal agencies under the president’s command. So far, that includes more than punishing enemies for speech, imposing governmental orthodoxy regarding race, gender, American history, and other matters, and controlling the distribution of information.
That blueprint now includes twenty separate agencies, from the FBI to the Agency for Healthcare Research and Quality. It also includes actions taken by overzealous federal prosecutors, some of whom have threatened to investigate universities, scientific journals, and other targets for allegedly teaching, researching, or writing about disfavored concepts or ideas.
Subservient to the president’s will, agencies have also removed language and information in public-facing websites and databases, apparently construing the president’s directives to excise disfavored perspectives and terminology.
Trump’s orders have likewise limited the availability of information, both at home and abroad. They have cut off aid to libraries, demanded that museums change exhibits that convey “anti-American ideology,” and silenced the nation’s voice in international spheres.
While Trump’s executive orders bind federal agencies, their impact has been felt far beyond federal office buildings. The orders, again backed by the full force of a multitude of federal agencies, have affected millions of individuals, entities, and institutions.
Similarly, most of them 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, and scientific research.
Again, much of this has occurred with relatively little effective litigation.
The effectiveness of the Trump administration’s agenda to control and suppress expression has substantially benefited from this ambiguity. Many of the tools relied upon by the current administration rely on and leverage informal pressure and intimidation.
Consider the following:
The threat of executive orders aimed at controlling the representation and other work of law firms.
Letters from federal prosecutors to publishers of scientific journals suggesting that their editorial decisions may be subject to criminal investigation.
Suggestions that universities and corporations could be subject to employment-related investigations based on vague charges that they engage in “DEI.”
Statements that universities and other tax-exempt institutions may be subject to IRS investigations or have their tax-exempt status revoked unless they agree to executive conditions on their operations.
Unwritten policies providing that resident aliens may have their immigration status revoked based on political beliefs.
Practice and pedagogy
In the flood of all such actions, and as important as judicial review is, it has proven insufficient when it comes to the chilling effect resting on the likes of law firms, colleges, students, immigrants, media outlets, and libraries, among others.
Fearful of punitive government action, many such groups have reluctantly complied with the Trump administration’s unconstitutional threats. Like CBS and Columbia University, they’ve toed the Trump line sans either a judicial challenge or an unwillingness to continue with such litigation.
Extortion-like tactics work quite well in first getting attacked groups to capitulate, and others to submit even without being specifically targeted. (see e.g.,
Also — and here I speak from personal experience — more and more law schools and colleges are quite hesitant to host programs on the topic of Trump’s assaults on our liberties.
When so much of the practice of law and the teaching of it are wed to the promises of judicial review, the resulting problem is how to combat free expression abridgments when judicial review does not offer the relief needed. Here, artful lawyerly counseling and innovative teaching methods are required to protect First Amendment rights.
To that end, the first thing needed is to identify the nature and scope of the problem. In that regard, Professor
“Trump 2.0: Executive Power and the First Amendment” Carolina Academic Press (Dec. 2025)
Workshops for lawyers and innovative teaching techniques will be needed to meet the challenges posed by the Trump administration’s assaults on the First Amendment.
Why are some First Amendment groups remaining silent?
Have you noticed that some heretofore stalwart First Amendment groups, blogs, or supporters have either remained silent, or largely so, in the face of one of the most repressive periods in First Amendment history?
Why? Are they afraid of reprisals? Do they want to avoid conflict with the Trump administration? Or might they agree with the Administration’s policies despite the First Amendment problems such policies present?
Note: A few portions of the above remarks were borrowed from a forthcoming essay by Professor Zick and me.
Sigmund Freud closed the first edition of Civilization and Its Discontents with a flicker of hope. He emphasized a life-affirming principle, which he believed might prevail “in the struggle with its equally immortal adversary,” a life-denying force.
An incisive examination of free speech’s global decline and a framework for preserving expression in democratic societies.
The Future of Free Speech confronts a stark truth: the right to speak freely is under siege. Once celebrated as a cornerstone of democratic societies, free expression is now met with growing suspicion and retaliation across the globe. Jacob Mchangama and Jeff Kosseff present a panoramic view of how we arrived at this pivotal moment.
The authors examine a century in which speech rights expanded dramatically ― including postwar democratic revolutions and the sweeping protections of the First Amendment ― only to find those rights unraveling in the face of new political, technological, and cultural pressures. Today, liberal democracies are imposing speech controls, authoritarian regimes are cloaking censorship in democratic language, and digital platforms wield unprecedented power over global discourse. This book examines the backlash against free speech from all sides: governments criminalizing dissent in the name of national security; lawmakers and activists demanding tighter controls on misinformation, hate speech, and offensive content; and AI systems removing speech at a scale and speed that dwarfs historical forms of censorship. At the same time, faith in free speech itself is waning, even in the very societies that once championed it.
The Future of Free Speech argues for a reinvigorated, global commitment to open dialogue. Mchangama and Kosseff advocate nonpartisan, civic-minded solutions that resist both government overreach and corporate silencing. They offer a compelling case for how free speech can meet modern challenges without abandoning its foundational role in sustaining democracy, human rights, and shared understanding.
Forthcoming scholarly article on abortion procedures and compelled viewpoint-based disclosure requirements
Informed consent laws require medical providers to disclose specific information to patients prior to obtaining their consent for the procedure. Following the 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to abortion, it falls to the First Amendment anew to act as a check on abortion informed consent laws. Many states have abortion informed consent laws that go beyond medically relevant information: they require providers to disclose viewpoint-based messages. Cases upholding these viewpoint-based disclosure requirements represent a profound break from compelled speech doctrine and invite the question at the heart of the article: does potential life — or any state interest for that matter — justify compelled viewpoint-based speech or should these laws be struck down?
Katherine M. Bolger
The article shows that many lower courts have evaded this question by ignoring the inaccuracies or viewpoint-based nature of various abortion informed consent laws and by improperly applying Zauderer, Casey, and other First Amendment doctrine. The article provides a framework for determining when informed consent laws compel viewpoint-based speech and shows how this is never permissible under First Amendment doctrine. This analysis is an important contribution because it helps reveal when other state efforts made in the name of patient health violate the First Amendment, such as recent efforts (and in some cases successes) to block abortion-related advertising, to require misinformation in Mifepristone disclosures, to block travel for abortion care, to control abortion-seeking patients’ speech, to require misinformation in gender-affirming care disclosures, and to prohibit the disciplining of medical professionals who spread medical misinformation — among a growing list of examples.
The article proceeds in four parts. Section I analyzes what abortion procedure informed consent laws require across the United States. Section II analyzes how disclosure requirements infringe upon free speech by compelling provider speech and distorting the messages patients hear. Section III asks what level of scrutiny the Court should apply to factual as compared to inaccurate, misleading, irrelevant, non-factual, or otherwise viewpoint-based disclosures. And Section IV analyzes whether the state’s interests in either informed medical decision-making or potential life can satisfy the relevant standards of scrutiny.
Imagine the government forcing you to label your all-natural milk product as “imitation.”
Florida tried to make one dairy farm do just that, sparking a First Amendment question: Where’s the line between a business’ right to speak and protecting consumers from deception?
In this episode, we explore how far free speech protections go for commercial speech with:
Justin Pearson, managing attorney (Institute for Justice)
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”)
“Skydance Media is making new concessions to secure Federal Communications Commission approval of its proposed merger with Paramount Global — including a pledge to create an ombudsman to address concerns of media bias.”
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.
Powerful!