1. I appeared as a guest on Jim Sciutto’s program on CNN International, and was asked to comment on ABC and Disney’s recent lawsuit against the Federal Communications Commission. The lawsuit alleges that the FCC retaliated against the media companies based on comments made by Jimmy Kimmel and other on-air talent and other protected expression.

2. I was also interviewed about the ABC/Disney lawsuit by a reporter from USA Today.

3. I appeared as a guest on June Grasso’s podcast with Bloomberg Law to discuss a recent federal appeals court decision upholding the dismissal of First Amendment and other claims filed by high school teachers who were ordered to remove pride flags from their classrooms.

4. I was also a guest on June Grasso’s podcast to discuss the “true threats” case the Department of Justice is pursuing against James Comey for posting a photograph of seashells arranged as “8647.”

5. I was quoted in a Reuters piece about President Trump’s failure to “restore freedom of speech,” as he promised on day 1 of his second term.

6. I was quoted in a Virginia Lawyers Weekly piece (subscription required) about a recent Fourth Circuit decision holding that vanity plates are private, not government, speech.

7. Finally, I spoke to a reporter from the Washington Post who is writing a piece on plans to add fencing and take other actions that may restrict public demonstrations at Lafayette Square Park near the White House. I’m hoping that piece will come out soon.

On his first day in office, President Trump issued an Executive Order declaring that his administration was committed to “restoring freedom of speech and ending federal censorship. Here is a summary of relevant events during the week just ended. Keep in mind, this is just a summary of a single week’s events.

• As I explained in a prior post, two free press nonprofits sued the president and others alleging that a plan to sell access to the president’s Truth Social posts for $60,000-100,000 violates their First Amendment right to receive information, imposes an invalid restriction on speech in a public forum, and constitutes an unconstitutional condition.

• A federal district court in California ruled that the Trump administration violated the First Amendment when it targeted pro-Palestine international students who participated in campus protests. This is the second district court decision to reach that conclusion. In an earlier case, a federal district court judge in Boston held after a bench trial that the administration’s “ideological deportation policy” violated the First Amendment. The California district court ruling goes even further, holding that that federal laws the Trump administration relied on to arrest and deport foreign students violated the First Amendment and were unconstitutionally vague. Secretary of State Rubio and the Trump administration have argued in public and in court that lawfully resident aliens are “guests” who have no or minimal First Amendment rights and that federal law grants the Secretary power to deport any alien on the ground that their speech poses a threat to U.S. foreign policy (whatever it may happen to be at any given moment).

• A federal district court ruled that the Pentagon’s designation of Anthropic as a “supply chain risk” constituted unlawful retaliation for First Amendment protected expression. The conflict with the Pentagon stemmed from the Anthropic CEO’s refusal to comply with Secretary Pete Hegseth’s demand the company’s AI model “be free from usage policy constraints that may limit lawful military applications.” Secretary Hegseth then threatened to label the company a “supply chain risk,” a designation that would substantially harm its business dealings. In its ruling, the district court observed that “it is undisputed Anthropic was given high levels of security clearance and was consistently praised," and that there was "no discussion of Anthropic's untrustworthiness or of a potential supply chain risk anywhere in the record" until its dispute with the Defense Department became public. During an oral argument, the government’s lawyers could not answer whether "terminating a contract for the undisputed sole purpose of 'stop[ping] public criticism of the President' would violate the First Amendment." But as the judge noted, "Criticism of government is at the very center of the constitutionally protected area of free discussion."

• President trump threatened to report Kristen Welker, the host of “Meet the Press,” to the Federal Communications Commission for possible “rebuke or punishment” for stating (correctly) on air that the president’s endorsements in primary elections have yielded “some mixed results.” The president claimed his is “without question, the strongest Endorsement in the History of Politics.” In a Truth Social post, Trump said he hoped the FCC’s chairman, Brendan Carr, “will take this Threat to our Country very seriously.” The president followed up with another post in which he complained about polls used by media organizations and proclaimed “FCC TO THE RESCUE!” Needless to say, the FCC has no authority to “rebuke” or “punish” journalists for their reporting or to sanction broadcasters for reporting polling results.

• The president amended his complaint against The New York Times, two of its reporters, and the publisher Penguin Random House. Trump claims the defendants’ publications about his acumen - or lack thereof - as a businessman are defamatory. In addition to the Times, President Trump has sued the Wall Street Journal, the BBC, and other media outlets for defamation and other civil claims. No other president in American history has weaponized the defamation lawsuit against the press as Trump has.

• Three staffers (including the editor-in-chief) at “Stars and Stripes,” a formerly independent publication covering the Pentagon, sued the Pentagon and top officials after they were terminated. The plaintiffs claim they were illegally pushed out over personal statements protected under the First Amendment. Specifically, they allege they were fired for publicly supporting that editorial independence in covering the agency.

• A West Point faculty member filed a lawsuit alleging that he was fired after he refused an order to cut from his class curriculum information about the human causes of climate change. The lawsuit claims that the order violates the faculty member’s First Amendment rights by requiring him “to omit a massive, fundamental, essential component of the court and to defy science.”

• The Treasury Department refused to issue credentials to several reporters so that they could attend the G20 summit in Asheville, North Carolina. Treasury did not explain its decision to deny credentials to reporters for The New York Times, The Wall Street Journal and Bloomberg News.

• Finally, in weekly capitulation news, Robert Mapplethorpe’s nonprofit foundation refused to allow an author of a new biography of Roy Cohn, Donald Trump’s former fixer, to use a Mapplethorpe photograph of Cohn on the book’s cover. According to sources at the foundation, the board “feared that Mr. Trump could retaliate, perhaps by threatening its nonprofit tax status, if the president — who has used the levers of government to pressure universities, law firms and TV networks — were to take offense.” The book is subtitled “Roy Cohn’s Dark Journey From Joe McCarthy to Donald Trump,” and “the board was concerned that the photo’s inclusion could be construed as a kind of political act.” According to the author, “It’s astonishing that these people are being so cowed, so easily.” You don’t say . . .

Photo Credit: Jim Wilson/The New York Times

It is no secret that President Trump and his family have profited substantially from his second term in office. Now the president and his business associates plan to sell early access to Truth Social posts for $60,000 to $100,000 per month. In a newly filed lawsuit, Freedom of the Press Foundation and The Intercept, two non-profit news organizations, sued President Trump, Natalie Harp (a/k/a “The Human Printer”), and others involved in the proposal for violating the First Amendment. Like many things President Trump has done, this one has no historical analog. Partly for that reason, it isn’t clear whether or how First Amendment doctrines and standards will apply. I wanted to take a closer look at the claims in the lawsuit, which deserve more attention than they have garnered in the media.

“Truth API”: Charging for Access to Truth Social Posts

President Trump and ghost-writers for his account frequently post about governmental policy and programs on the social media site Truth Social. No president has relied as heavily on social media to communicate with government officials, foreign leaders, and the American public.

Trump Media &Technology Group (Trump is the largest shareholder of the company) has a new plan, “Truth API,” which would provide instant access to certain market-moving posts by Truth Social’s most influential posters (including the president). [API stands for Application Programming Interface]. For a monthly fee of up to $100,000, trading firms and institutional investors would receive early access to President Trump’s posts about economic policy and global affairs. According to Trump Media’s CEO, “those who subscribe to Truth API will get the President’s posts faster—potentially significantly faster—than those who do not.”

Even by the standards of this administration, this seems on its face like a grift too far.

Indeed, securities law experts have expressed concerns that the plan would violate federal law. For example, the 2012 Stock Act bars members of Congress and the executive branch, including the president, from trading stocks based on privileged information. Those profiting from the non-public information may also be liable under federal securities laws. So far, the president has shown little concern that he can be held accountable under federal laws, which of course would have to be enforced by his own administration. And right on cue, a spokesperson for Trump Media & Technology Group responded to the legal concerns that have been raised, "Truth API offers customers the fastest way to ingest publicly available Truth Social data. Critics must have invented a new theory of 'insider trading' based on publicly available information." Responding to the new lawsuit, a company representative claimed that “left wing activists are trying to wrongly weaponize the courts to censor” Mr. Trump and to harm the company’s shareholders.

Perhaps the risk of potential liability under the securities laws will be reason enough for many or most traders to steer clear of “Truth API.” However, the financial stakes of gaining early access to market-moving posts are significant. According to Trump Media, ten financial news media and institutional investors have reportedly signed up. If Truth API launches, it would represent an unprecedented effort by a sitting president to profit from - and assist friends in profiting from - his official policy statements.

First Amendment Speech and Press Claims

Would Truth API violate the First Amendment? Ordinarily, these kinds of market transactions - including paid access to data and information - do not give rise to free speech or press concerns. However, this is not business-as-usual. A plan by a sitting president to monetize his own policy statements by offering a form of paid access to them certainly could raise serious First Amendment and other constitutional concerns. The lawsuit recently filed by Freedom of the Press Foundation and The Intercept alleges that Truth API violates the First Amendment (the complaint also alleges a violation of the Fifth Amendment’s equal protection component) on three primary grounds.

Truth API Is “State Action” Subject to First Amendment Limits

Before we get to the First Amendment claims, there is a preliminary issue: Is Truth API government or state action limited by the First Amendment?

As first year constitutional law students know, the Constitution generally only applies to governmental actors and actions and not to private ones. The First Amendment itself states that “Congress shall make not law . . . abridging the freedom of speech.” The president and executive officials, as well as states and localities, are also prohibited from making laws that “abridge” the freedom of speech.

If Trump Media and Truth Social were just ordinary private companies, the First Amendment would not apply to their money-making scheme. However, as the plaintiffs allege in their complaint, Truth API is not an ordinary private business venture.

First, as plaintiffs assert, President Trump frequently uses Truth Social to make official policy pronouncements regarding, inter alia, senior government appointments, tariffs, wars and military operations, foreign affairs, and trade. As the complaint alleges:

Since resuming office, Trump has published between 9,000 and 11,000 posts or reposts on Truth Social. Often his posts have no immediate corresponding announcement from the White House.

Lest there be any doubt about the official nature of the president’s “Truths,” former WH press secretary Karoline Leavitt once affirmed that the president’s Truth Social posts are official executive policy.

Second, plaintiffs allege that Trump, Trump Media, and Truth Social are involved in a “joint and symbiotic relationship.” President Trump is the largest shareholder and the driving force behind Truth Social’s popularity and profits. He has entered into detailed agreements about posting exclusively to the platform and his participation is key to the success of Trump Media and Truth Social. As the complaint asserts:

Truth Social is so reliant on President Trump’s participation on the platform, in fact, that Trump Media’s 2024 prospectus for Truth Social stated that ‘if President Donald J. Trump were to cease to be able to devote substantial time to Truth Social, [Trump Media’s] business would be adversely affected.’

For these reasons, plaintiffs allege that the First Amendment applies to Truth API. Based on the president’s use of Truth Social and his relationship with Trump Media and Truth Social, Truth API is a form of “state action.”

1. Unlawful Restriction on Access to Governmental Information

Plaintiffs allege that the First Amendment protects not only the right to communicate or publish information but also the right to receive it. As noted, they claim that the information in question, the president’s Truth Social posts, is often the only source of information about executive policy.

Plaintiffs allege that Truth API imposes a substantial burden on their ability to gather information and report on the president. Since they are unable and unwilling to pay for special access to the president’s posts, plaintiffs will not be able to access the Truth API data on the same terms as its subscribers. According to the complaint, “Plaintiffs have a First Amendment right to access President Trump’s public comments on equal terms with other members of the press and public.”

Plaintiffs argue that the burden places on their right to access public information is not justified by any legitimate governmental interest. They claim that Truth API violates federal securities and other laws. They further allege that even if Truth API furthered some valid governmental purpose, the government’s interest is outweighed by the benefits of open access to official policy announcements.

2. Unlawful Regulation of Speech in a “Public Forum”

In a separate claim, plaintiffs allege:

A public official’s social media posts—which users can like, share, reply to, and comment on—constitute designated public fora where there is state action, and the official has made their posts generally available to the public at large.

Plaintiffs claim that President Trump’s Truth Social posts constitute a “public forum” echoes a claim made during his first term. President Trump had blocked critics from responding to his Twitter (now X) posts. Some of these critics sued on the ground that blocking them from a government account based on the content of their comments violated the First Amendment. The U.S. Court of Appeals for the Second Circuit agreed that Trump’s blocking decisions violated the First Amendment. However, the Supreme Court ultimately vacated its ruling as “moot” after Trump lost the 2020 presidential election and was suspended from Twitter.

Under the First Amendment’s public forum doctrine, the First Amendment limits the speech restrictions governments can impose when they are owners or operators of public properties or resources. Here, as in the earlier case, plaintiffs argue that when the president posts on Truth Social, his posts allow anyone to comment. When the government opens a forum in this indiscriminate manner, the First Amendment presumptively prohibits it from imposing content-based restrictions and allows for content-neutral restrictions only where they further significant governmental interests, burden no more speech than necessary to serve those interests, and leave open ample alternative channels of communication (this is often referred to as the “time, place, and manner” standard).

Plaintiffs do not allege that Truth API burdens speech based on its content. Rather, they assert that the plan to allow paid early access to thew president’s and other market-moving posts does not further a legitimate — let alone significant — government interest. They further allege that a monthly $100,000 charge for early access to information is not narrowly tailored to serve that interest, even if it were legitimate. Finally, since they are unable and unwilling to subscribe to Truth API (plaintiffs cite concerns about their objectivity and possible legal liability), and that the president often relies on Truth Social posts as an exclusive means of announcing policy, the plan does not leave open “ample alternative channels” through which they can receive the information.

3. Unconstitutional Condition on receipt of Information

Finally, plaintiffs allege that “unconstitutional conditions doctrine prohibits the government from imposing extortionate or unreasonable conditions on the availability of government benefits.” Under this doctrine, governments do not have to make benefits available. However, if they do, the First Amendment (and other constitutional rights) limit their ability to impose conditions on receipt of those benefits. For example, the government cannot condition public employment on an applicant’s agreement not to engage in any political speech.

Plaintiffs argue that the data offered through Truth API is a government benefit and that the condition that subscribers pay $60,000-$100,000 to gain access is an unconstitutional limit on the right to receive the information (the First Amendment right that runs through all three of their claims). They describe this arrangement as “extortionate.”

Plaintiffs also argue that the First Amendment “protects Americans’ rights not to subsidize Truth Social’s message and to choose not to associate with Truth Social by making an account.” The compelled subsidy claim is based on the right not to subsidize the speech of others, which the Supreme Court has applied to strike down mandatory public union dues and other compelled subsidies. The right not to associate with others has been recognized and applied to invalidate, for example, compelling the Boy Scouts to allow openly gay members. Plaintiffs allege that it applies as well:

Defendants’ Truth API scheme burdens Plaintiffs’ First Amendment rights not to associate with Truth Social or subsidize its expressive activity by conditioning access to official government information on associating with Truth Social and faster access to that information on subsidizing Truth Social’s expressive activity

In essence, plaintiffs allege that Truth API puts them to an unconstitutional choice:

[E]ither subsidize and associate with the President’s private company, harming The Intercept’s finances, reputation, and legal security, or risk losing out on timely news to competing organizations, similarly harming its reputation and revenue

Likelihood of Success

As I’ve already noted, Truth API is an unprecedented effort by the president and his associates to monetize access to public policy information. There is no special First Amendment doctrine that speaks to the concerns this plan raises. Thus, courts will apply longstanding First Amendment doctrines - the right to receive information, public forum doctrine, and the unconstitutional conditions bar - to a novel governmental program. This all makes predicting the outcome more difficult. Further, at this point we have only the complaint and no response from Trump or the other defendants. That makes it harder to predict which arguments will be most significant or potentially even dispositive assuming the case moves forward.

I will assume for the sake of analysis that plaintiffs have standing to sue, meaning that they can prove Truth API would harm their investigative, financial, or other interests.

I think plaintiffs have also sufficiently alleged that Truth API is a form of governmental action subject to First Amendment limits. The president’s Truth Social posts address many subjects, but they frequently announce official executive policies. In a recent unanimous decision, the Supreme Court ruled that a public official acts as a “state actor” regarding regulation of user comments on social media only if they (1) have actual authority to speak for the government on that matter and (2) purport to exercise that authority. As for the “market-moving” posts involved in the lawsuit, this standard is plainly met. The trouble with this aspect of the state action analysis is that the Court’s standard for official social media sites applies post-by-post. It isn’t entirely clear how it might or should apply to a program that monetizes many but not all social media posts.

The better argument may be that Truth API itself constitutes “state action.” The plan directly involves the president, who is acting jointly with Trump Media and Truth Social. Defendants will no doubt argue that many companies offer early access subscriptions and that this is no different. However, given the president’s central role and the mutual benefits to both the president and the companies from this arrangement, plaintiffs may survive a “state action” challenge at this stage.

As for the First Amendment claims, the first one alleges violation of First Amendment rights to receive information and to engage in “newsgathering.” The scope of both rights is uncertain.

The First Amendment is not a general sunshine law that protects the public’s access to any and all information in the government’s possession. Moreover, the limit on access here is temporary, in the sense that non-subscribers can receive the information shortly after (apparently seconds after) those who pay for Truth-API. A court might conclude that this is not a substantial enough burden on the right to receive information to trigger First Amendment scrutiny. Or it could rule that there is no right to receive governmental information “in a timely fashion,” or on “equal terms” with others.

As for “newsgathering,” the Court has recognized this right in general or abstract terms. But again, it has never specified its scope or boundaries. There is no special “press” doctrine relating to newsgathering, so any right the plaintiffs have is co-extensive with the public’s right. But again, whether the Truth-API plan burdens that right is not certain. There are many ways in which plaintiffs and others can access and analyze the president’s announcements outside Truth-API. Whether the delayed access substantially burdens a newsgathering right is unclear.

Plaintiffs have also invoked the public forum doctrine. When assessing forum claims, it is important to be specific about the property or resource plaintiffs want access to. The forum or resource plaintiffs seek (equal) access to here is Truth API. Focusing, as plaintiffs do, on whether the president’s “Truths” are “designated public fora” may not be correct (although it is understandable given the prior litigation over the issue). Plaintiffs do not seek to comment on Trump’s posts, as was the claim in the first term litigation over Trump’s blocking of Twitter critics. They want to receive all of the information in the Truth API bundle.

If that is correct, the question becomes what kind of “forum” is Truth-API? Plaintiffs may be seeking to avoid the possibility that this forum is what is often referred to as a “limited” or “non-public” forum. These are properties or resources opened not indiscriminately but only for a specific topic or class of users. If Truth API is one of these types of fora, then limits on access need only be reasonable and viewpoint-neutral. That is an easier standard for the defendants to meet. However, it may still be the case that they have no “reasonable” basis for monetizing early access to market-moving official pronouncements. Thus, plaintiffs may still prevail - even if the forum is Truth-API and it is a “limited” or “non-public” forum.

The last claim, which relies on the unconstitutional conditions doctrine, is hardest to assess. That is partly owing to the messy nature of the doctrine itself.

Needless to say, no court has decided whether requiring individuals or institutions to pay for early access to presidential and other official policy announcements places an unconstitutional condition on the exercise of a First Amendment right. Pay-to-play when it comes to receiving the benefit of concededly “market-moving” announcements seems to fit the basic definition or concept. But the doctrine allows the government a lot of latitude to fund or not fund, or allow or not allow, participation in a program that it operates - including the power to define the contours of the program itself. The government charges for access to certain types of reports, and perhaps can impose a “buy-in” for those who want to participate in certain government-run and funded programs. Is this one of those instances, or are plaintiffs correct that the subscription plan is “extortionate”?

Plaintiffs’ arguments that Truth-API compels them to associate with or subsidize speech are intriguing. Generally, compelled association claims involve an organization that claims some law or regulation is being applied in a way that forces the group to accept members it does not want. Those cases, like the Boy Scouts case mentioned earlier, protect “expressive” associations from being compelled to take on members that they claim would distort the group’s message. That line of cases is an odd fit here because the individual plaintiffs are claiming they are being compelled to join a government program against their will. It is not clear that the Court’s “compelled association” precedents apply to this situation. Perhaps the stronger claim will turn out to be that Truth-API is a form of governmental compelled subsidy, the claim being that plaintiffs and others are being forced by government to provide financial support for a joint private-government program. They are being compelled to subsidize a governmental initiative in ways that undermine their objectivity.

This case raises several intriguing and complicated arguments. The novelty of the program will require judges to consider how fundamental First Amendment doctrines apply to it. As with any litigation, nothing is certain. The program may well be unlawful on non-First Amendment grounds. Whether it violates the First Amendment depends on the claims and analyses discussed in the post.

Some of the campus policies are so broadly written they threaten to prohibit almost any form of dissent. Some ban “expressive activities” at night. Others bar even silent study-ins, vigils, and other non-disruptive expressive activities. Universities generally pledge support for the exercise of First Amendment rights on campus and tout their commitment to free and open discourse. However, pressured by the Trump administration, and in some cases influential donors and alumni, universities have taken an increasingly hard line against contention on campus.

A federal judge recently enjoined enforcement of Florida International University’s “expressive activities” policy against a group of students who silently dissented during an event that occurred in a university building.

The students are members of a group, ICEBreakers, which mobilizes students, faculty, and other university community members to end FIU’s agreement to deputize the FIU police department with the powers of federal Immigration and Customs Enforcement agents. On March 13, 2026, a group of fifteen ICEBreakers members sat in the audience at a university auditorium while FIU President Jeanette Nuñez held an on-campus discussion with former Major League Baseball star Alex Rodriguez. About a half hour into the program, the students stood up and unveiled shirts that said “ICE OFF FIU,” and stood silently for a few minutes facing the audience. They then left the event.

According to the district court, “From the evidence presented to date, it does not appear that Defendant Nunez or the speaker noticed these students, and if they did, the interview proceeded without any interruption. No attendee complained or otherwise raised any concern regarding Plaintiffs’ conduct.”

Nevertheless, three months later, the university ordered seven of the students to record two-minute videos to reflect on the policy and their conduct. They went to court instead.

The district court judged that enjoined enforcement of the policy, including the video-recording sanction, relied heavily on Tinker v. Des Moines Independent Community School District, a 1969 Supreme Court decision that held school administrators could not punish elementary, junior high, and high school students for wearing black armbands to school to demonstrate their opposition to the Vietnam war. In Tinker, the Court reasoned that students’ expression could only be restricted if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

The Supreme Court has never applied the “material disruption” standard to university student speech.* Some lower courts have done so, while others have expressed the view that the Tinker standard is not speech-protective enough to be applied in the university setting. What is “disruptive” on an elementary school campus may well differ from how that concept would or should be applied to educational institutions where adults study. In any event, if FIU cannot meet the Tinker standard, it would not be able to satisfy a more speech-protective one.

The district court determined that the students are likely to succeed on the merits of their First Amendment claim. The court interpreted FIU’s policy to prohibit all “protests, parades, marches, picketing, demonstrations, and other similar expressive activities” regardless of whether they cause any disruption. In other words, the policy as written does not even require an activity to be disruptive to be banned. As the court observed, the challenged policy “can extend to conduct as limited as a lone student wearing a button as a sign of protest or a small group of students assembling at lunch in the Student Union to discuss opposition to any issue.”

The court’s decision is based on the absence of consideration of disruption. Although it discusses Tinker at length, the court does not apply the material disruption standard (though it does note that there is no evidence in the record of any disruption). While it says in a footnote that it is not considering the students’ argument that the FIU policy is unconstitutionally overbroad, that seems to be the basis for the court’s ruling. Under overbreadth doctrine, a policy or regulation cannot be “substantially” overbroad in the sense that while it aims at unprotected speech it sweeps in a vast amount of protected expression. As the court reads it, the FIU policy appears to regulate only protected expressive activity. In other words, a policy that prohibits even non-disruptive expression sweeps far too broadly to satisfy the First Amendment. The overbreadth argument will likely be revived if FIU decides to appeal the injunction.

FIU argued that the court should apply “public forum” standards. Under the public forum doctrine, the auditorium would likely constitute what is referred to as a “non-public” or “limited” public forum. Unlike a public street or park, a university auditorium is not a place where the general public is free to exercises expressive rights. The event in question was sponsored by the university and was not intended to create what is called a “designated” public forum. In a “limited” public forum, the government must demonstrate that its policies are “reasonable” and viewpoint-neutral. FIU argued that its policy is valid under a “reasonableness” standard. While that standard is deferential, it is still incumbent on the university to explain why it is “reasonable” to ban all expressive activities at an event whether or not they are materially disruptive. And it would need to explain why, as applied to these students, the policy is reasonable. Even if the court had accepted FIU’s invitation to apply public forum doctrine, the result likely would have been the same.

Hopefully, FIU will amend and clarify the “expressive activities” policy and, more importantly, enforce it in accordance with First Amendment requirements. Unfortunately, universities are increasingly cracking down on and treating as “disruptive” nearly any form of campus dissent. However, as the Supreme Court emphasized in Tinker, students do not shed their First Amendment rights at the schoolhouse gates. Universities now excitedly embracing “civil discourse” should keep in mind that silent forms of dissent are not “uncivil.” Indeed, civil discourse and even some disruptive forms of protest are not incompatible. Students who have been reprimanded and warned about severe consequences for “shouting down” speakers must be disappointed - not to mention confused - when universities punish them for merely exhibiting their views on a t-shirt and walking out of an event. Campus dissent is an important aspect of university culture. Kudos to the seven FIU students for doing their part to preserve it.

*In decisions subsequent to Tinker, the Court has granted school administrators greater leeway when regulating K-12 student speech at assemblies and in curricular contexts. The Supreme Court has not addressed whether these precedents, which for example allow school officials to punish students for “vulgar” speech or restrict speech on the ground that it is not suitable for younger audiences, ought to apply to university or graduate level students. In any event, the speech involved in the FIU incident does not fall into these apparent “exceptions” to the Tinker material disruption standard.

As I have been collecting materials for the repository, I’ve often been struck by just how many Trump 2.0 First Amendment controversies erupt every week. This is highly unusual, to say the least. In past administrations, one could probably come up with a handful of serious First Amendment issues during an entire term. But of course, this is not a normal presidential administration. To wit: last week President Trump was sued for violating the First Amendment when it was disclosed that he planned to sell early access to his Truth Social posts for $100,000 per month.

Consider the events of just the past week:

ABC and Disney v. FCC: Having finally had enough of the administration’s harassment, ABC and Disney Corp. finally filed a First Amendment lawsuit against the Federal Communications Commission. The lawsuit alleges that the FCC has retaliated against the media companies by threatening to revoke their affiliates’ broadcast licenses based on protected speech by on-air talent. The complaint alleges a longstanding pattern of agency and presidential pressure that directly targets the broadcasters’ editorial rights.

University Anti-Semitism Investigations: The Trump administration has terminated university funding and sought to pressure campus leaders into entering into “settlements” by claiming the universities have allowed or facilitated discrimination against Jewish students and faculty. A whistleblower formerly employed by the Department of Justice has now alleged what a federal district court already concluded in the lawsuit Harvard University filed to challenge this very claim - namely, that it was a pretext used to justify punishing universities. The whistleblower’s account alleges that administration officials failed to conduct proper investigations and used allegations of campus antisemitism as a pretext to cut federal grants to pressure Brown University, Columbia University, and Harvard University. It states that officials had “a predetermined, outcome‑driven approach to enforcement rather than a fact‑based investigative process.” The former DOJ lawyer’s statement claims that although investigators informed administration officials that they did not have sufficient evidence of unlawful discrimination, their concerns were ignored. Although Harvard has prevailed in its long legal fight against the administration, Brown and Columbia both entered into purported “settlements” based on allegations of widespread campus anti-Semitism. The Trump administration has relied on similar allegations in its dealings with other universities. If the whistleblower’s account is accurate, the administration has been opening investigations and terminating funding under false pretenses. Meanwhile, targeted universities have been capitulating to governmental demands that threaten academic freedom and free speech on their campuses. [In addition to the court’s conclusion in the Harvard case, consider that another federal judge recently dismissed a lawsuit the administration filed against Harvard making the same allegations of anti-Semitism.]

Trump Threatens to Sue the Center for American Progress for Defamation: President Trump has filed more lawsuits against media entities and journalists than any president in American history. He has used these lawsuits to castigate and intimidate the press. Some media defendants have settled even though the defamation and other claims against them were weak. This past week the sitting president threatened to sue the Center for American Progress, a liberal think tank, for defamation. What was the basis for the suit? According to Trump, the findings in a CAP study concluding that the deployment of National Guard forces to U.S. cities has had no appreciable effect on crime rates in those locations. In a defamation lawsuit, truth is a defense. And when a public official sues for defamation, he must prove that the published statements were made with “actual malice” - meaning they were published with the knowledge they were false or with “reckless disregard” concerning their truth. Defamation lawsuits exist so that plaintiffs whose reputations have been harmed can recover for that injury. This threatened lawsuit has nothing to do with that harm. It is a transparent effort by a sitting president to punish and chill speech on a matter of public concern. The Supreme Court has made crystal clear that the First Amendment protects discussion of public issues and criticism of public officials - including “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The president’s thin skin and his desire to punish his critics are precisely why these protections are vitally important. The point of this threatened lawsuit, as with the many others, is to force the defendant to incur the expense of defending itself in court. It is tempting to yawn and dismiss this as more of the same abuse of power. But we should be vigilant when powerful public officials try to use the threat or actuality of lawsuits and civil damages to chill discussion of their policies.

The Pentagon Fired a “Stars and Stripes” Editor: This past week the Defense Department fired an editor at the “Stars and Stripes,” a government-funded news outlet. The firing came after the paper reported on the struggles of those in military families and communities, including the difficulties they have had in light of the protracted war in Iran and the much-reported-on deployment of the U.S.S. Abraham Lincoln. The Pentagon has been embroiled in litigation with members of the Pentagon press corps, largely as a result of its adoption of restrictions on journalists who cover war and national security matters. As reported by The New York Times, “Federal regulations and Pentagon policy had emphasized editorial integrity of Stars and Stripes for decades, requiring ‘a free flow of news and information to its readership without news management or censorship.’ The Trump Pentagon is apparently not committed to principles of editorial independence. The “Star and Stripes” editor was purportedly fired for stating in a CBS interview that “censorship of news for service members would constitute a red line” in terms of editorial independence. The Pentagon’s chief spokesperson, Sean Parnell, said in a social media post that “Stars and Stripes” must “refocus its content away from woke distractions.” It speaks volumes about our current situation that reporting factual information about U.S. servicemembers and defending editorial independence are considered “woke distractions.”

Consider that all of this happened during the course of just a single week. And these are just the most prominent headlines relating to the Trump administration and First Amendment issues. Just keeping up with the First Amendment Watch repository has been a serious challenge. Every week brings a firehose of actions and events that threaten not to “restore” freedom of speech but to violate it.

As I’ve stated from the beginning of Trump’s second term, I think it’s important to keep receipts from this extraordinary period. We should look back and reflect on this era, which has already been the most significant in terms of First Amendment rights since the McCarthy Era of the 1950s. Hopefully, looking back will help us appreciate both the importance and precariousness of our First Amendment freedoms.

As others who have tried to take the easy road have discovered, capitulation simply does not pay. For example, law firms that “settled” with the administration have been asked to perform work that was apparently not part of their original “agreement. Go figure. ABC is now facing early review and potential loss of its broadcast licenses. Faced with what it refers to as this “existential threat,” ABC has belatedly discovered its spine. It has filed a 45-page lawsuit against the FCC, alleging that “[a]cting through the Federal Communications Commission, the Administration has waged a retaliatory campaign against ABC for a single reason: it disapproves of what ABC broadcasts.”

It is unfortunate it has taken the threat of licensure termination to get ABC’s attention. Ideally, this is how broadcasters like ABC (and other targets) would have responded to earlier intimidation tactics. But as I explain in my “backboning” article, financial and other considerations often influence decisions whether to capitulate or stand firm. Better late than never, in any event. It has been obvious for some time that Trump, FCC Chair Brendan Carr, and the FCC have targeted ABC based on the content of what it broadcasts. The lawsuit is a late but welcome example of the kind of “backboning” necessary to preserve First Amendment rights.

How strong is ABC’s case? So far, we only have the companies’ complaint. But it presents a compelling narrative, supported mostly by very public actions and statements by President Trump and Chairman Carr, that the administration has targeted the media company because of objections to its broadcast content.

Consider the timeline of events:

• In September 2025, Disney pulled Kimmel off the air briefly after pressure from FCC chairman Brendan Carr. The impetus for that move was a comment Kimmel made about the motives of Charlie Kirk’s alleged killer.

• Shortly after Kimmel’s comment was aired, Carr appeared on a conservative podcast and said of the ABC and other stations, “We can do this the easy way or the hard way. . . . These companies can find ways . . . to take action . . . on Kimmel, or there is going to be additional work for the FCC ahead.”

• In April, the FCC instituted an “early review” of Disney’s owned-and-operated television stations. Asked about the unusual early review order (according to the complaint, such a proceeding had not occurred for half a century), Carr said: “If you didn’t take us seriously, now you should.”

• According to the complaint: “For all but two of the Stations, this early review comes before their current license terms have even reached the halfway point, and years before the Commission is statutorily authorized to grant renewal.”

• The FCC order was issued while the agency was investigating whether ABC’s “The View” had run afoul of “equal time” regulations not ordinarily applied to talk shows. The agency was also investigating Disney’s hiring practices.

• The FCC’s early review order also followed the White House and President Trump’s public comments assailing ABC and Kimmel for a joke Kimmel told about the first lady.

• On July 16, 2026, the President made a primetime address. ABC made the editorial judgment not to broadcast the address live. In response, the President declared, ““NBC and ABC fake news have both said that they would not cover this speech . . . . [T]his should mean a revocation of their licenses.”

• Shortly after the president’s address, Chairman Carr stated that the Commission would consider ABC’s decision not to broadcast the July 16 address as part of its review of the Stations’ renewal applications.

In a retaliation case, plaintiffs have to show that the actions taken against the speaker or publisher were caused by or the result of its protected expression. As in retaliation cases filed by several law firms and Harvard University, the government has made this causal connection much easier to establish. In addition to the timeline and comments above, consider the following:

• in 2020, as a presidential candidate, Trump stated, “You know, in the old days, when you used public airwaves free, you had to get a license. I keep saying if they’re reporting fake news, how come they can keep getting a license? Whether it’s ABC, whether it’s NBC, CBS, or of course CNN.”

• Again, as a candidate, this time in 2024, Trump declared after an ABC-sponsored presidential debate, that ABC News’s fact-checking was “corrupt” and argued that the FCC “ought to take away their license.” During the remainder of the 2024 campaign, Trump made repeated comments arguing that ABC’s licenses should be revoked.

• On Truth Social, Trump wrote: “Despite a very high popularity and, according to many, among the greatest 8 months in Presidential History, ABC & NBC FAKE NEWS, two of the worst and most biased networks in history, give me 97% BAD STORIES. IF THAT IS THE CASE, THEY ARE SIMPLY AN ARM OF THE DEMOCRAT PARTY AND SHOULD, ACCORDING TO MANY, HAVE THEIR LICENSES REVOKED BY THE FCC. I would be totally in favor of that because they are so biased and untruthful, an actual threat to our Democracy!!! MAGA”

• Continuing the prior post, Trump wrote: “Why is it that ABC and NBC FAKE NEWS, two of the absolute worst and most biased networks anywhere in the World, aren’t paying Millions of Dollars a year in LICENSE FEES. They should lose their Licenses for their unfair coverage of Republicans and/or Conservatives, but at a minimum, they should pay up BIG for having the privilege of using the most valuable airwaves anywhere at anytime!!! Crooked “journalism” should not be rewarded, it should be terminated!”

• Two months later he posted: “This is just one of the many reasons that the Federal Communications Commission should look into the license of . . . ABC Fake News . . . 97 percent negative to Republicans!”

• Trump again declared on social media that late-night TV hosts “are almost 100% Negative to President Donald J. Trump” and asked if broadcast licenses should “be terminated? I say, YES!”

These and other examples of presidential and FCC statements about ABC are included in the complaint, as are the regulatory actions that followed soon after. It is possible courts will not treat the president’s statements as persuasive evidence of retaliation by themselves. After all, government officials are entitled to express their views, including claims they are being treated unfairly by the media. Here, however, Trump’s statements are more direct and explicit. They suggest, if not order, license revocation in retaliation for coverage and editorial decisions.

Whether or not this evidence is sufficient, the complaint lays out a timeline establishing cumulative and escalating pressure on ABC and Disney to alter the content of their broadcasts or face regulatory sanctions. The regulatory action followed, indeed was based on, perceived bias in editorial decision-making. That is textbook First Amendment retaliation. As the complaint alleges:

That campaign began in this Administration’s earliest days and has only intensified since. Again and again, the Administration has attacked ABC’s speech – the stories its journalists report and the viewpoints its network programs air. Over time, those attacks have escalated into express demands that ABC be stripped of its broadcast licenses because of its speech.

The plaintiffs are asking for quick relief, and for good reason:

The Commission is poised to make good on its threat any day now: the public comment period on the renewal applications has closed, and the Commission may, at any moment, issue an unprecedented Hearing Designation Order for all eight Stations, which would kick off a formal agency adjudication to determine the fate of ABC’s licenses.

The plaintiffs claim that any adjudicatory process over its licenses would be a “charade”, particularly because the agency cannot, by statute, grant license renewals several years early. In this paragraph of the complaint, plaintiffs highlight the purpose and effect of the administration’s pressure campaign:

At one extreme, the Commission may intentionally prolong the adjudicative process, miring ABC in years of costly litigation, with the threat of adverse action ever present and with every editorial judgment shadowed by the prospect of provoking the Administration into further retaliation. After all, ‘the value of a sword of Damocles is that it hangs—not that it drops.’ First Choice Women’s Res. Ctrs., Inc. v. Davenport, 146 S. Ct. 1114, 1127 (2026) (quoting Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting)). At another extreme, the Commission may use the hearing to deny license renewal or immediately revoke the Stations’ licenses, forcing Plaintiffs off the air entirely, as the President has repeatedly demanded. In either scenario, the Administration accomplishes its goal of eliminating a perceived media critic: either it gets Plaintiffs to fall in line, or it silences them if they refuse.

Although the plaintiffs have brought only a “retaliation” claim, the campaign has all the hallmarks of an informal censorship scheme. This is not a one-off retaliatory action, but a pattern and practice of ratcheting up the threats and pressure on a target in order to suppress disfavored expression. Although retaliation and “jawboning” are perceived as different types of invidious actions, the Trump Administration has blurred the line between the two.

The complaint sets forth a convincing case that plaintiffs’ First Amendment rights have been violated. So, what will the FCC argue?

Briefly, if past is prologue, the agency will try to convince the court that (1) the president’s statements about media coverage are government speech, (2) the FCC is empowered to investigate media companies and to insist that they broadcast in the “public interest,” (3) the FCC’s interpretation of the equal time or “equal opportunities” regulation is valid and not retaliatory, (4) FCC regulations empower the agency to investigate discriminatory employment practices, and (4) none of the above actions were undertaken to punish the companies based on their exercise of editorial discretion or the content of their broadcasts. That is a hard theory to swallow given the record already compiled.

I would expect the district court to grant temporary relief. I would also expect that a motion to dismiss the complaint will be denied. And plaintiffs already have a strong record for summary judgment. If the outcomes of the retaliation cases filed by four law firms and Harvard are any indication, plaintiffs are likely to succeed on the merits in the district court.

By then, of course, some of the damage will have been done. The companies will have retained counsel (one of the very best by the way, Paul Clement) and will have to expend resources to save their licenses. And even if they win, they may look over their shoulder in the future - at least, that is what the administration is hoping.

Backboning requires resolve, fortitude, and perseverance. Hopefully ABC’s stand will encourage other media companies and targets of retaliation to follow suit. Otherwise, as the complaint alleges, “the message to every media company in the country will be unmistakable: tell only the stories the Administration deems favorable, or face the coercive machinery of the federal government. In such a world, the press could in no way be described as free.”

Thanks to a recent filing in a criminal case, information has come to light regarding Department of Homeland Security efforts to investigate left-leaning groups and surveil anti-ICE protesters. Lawyers for a protester who is being prosecuted have filed a motion seeking access to additional discovery materials. A recent article in The New York Times describes what lawyers have already discovered:

Four days after Alex Pretti was fatally shot while filming officers taking part in the Trump administration’s immigration crackdown in Minnesota, the Homeland Security Department quietly opened an investigation at its office in St. Paul.

The target was not the Border Patrol agents who had killed Mr. Pretti, a 37-year-old government nurse, in late January. Instead, it was several left-leaning political organizations — labor unions, a climate change group, socialist collectives — that investigators believed had provided help and money to what they described as the “violent opportunists and agitators” on the street, according to newly released government documents.

The article goes on to recount how DHS infiltrated anti-ICE protest meetings and events, and engaged in other surveillance of activists. Federal agents “took down the license plate numbers of people who attended a training session at a church in Roseville, Minn., and used that information to obtain their names. The agents then searched social media for images of the people, compiling an ‘intel work-up’ that included detailed personal information about them.”

DHS dubbed its wide-ranging investigation of left-leaning groups “Operation Puppet Master.” A related project was called “Project Whipple Shield” (Whipple was the name of a building in Minneapolis used by ICE).

According to the Times article:

As part of their inquiry, the documents show, homeland security officials used an array of invasive tactics during the first half of this year to gather information on many groups and individuals who were never accused of crimes, crossing the line that has traditionally stood between investigating criminal activity and political dissent.

In one instance, officials used administrative subpoenas to obtain more than three years of financial records from the Sunrise Movement, an environmental action group, and a labor union, the Communications Workers of America. That time frame went well beyond the civil unrest in Minnesota, which was prompted by the deployment of thousands of immigration agents to the state during the winter.

The defense motion for discovery puts it more sharply, accusing DHS of engaging in a wide-ranging fishing expedition in search of the right’s “White Whale” - a well-funded cabal of groups who have conspired to fund and support unlawful acts of violence by members of ‘Antifa.” According to the defense motion:

This case involves an unprecedented campaign by DHS to spy on Minnesotans. During Operation Metro Surge, undercover agents posing as protesters surveilled community meetings at churches, parks, libraries, schools and union halls. These agents surreptitiously recorded dozens of conversations with ordinary people who were simply exercising their First Amendment right to protest ICE’s lawless rampage in our state. The agents gathered information about Minnesotans from law enforcement databases and internet searches, and created dossiers that are apparently now available agency-wide.

HSI’s abuses did not stop there. HSI secretly obtained financial records for several national labor unions, including SEIU and the Communications Workers of America, and social justice non-profits including the Sunrise Movement and Voices for Racial Justice, all with zero criminal predicate to do so.

The government’s presentation to the grand jury reflected this broad and irrational investigation. With no evidence, the government alleged to the grand jury that the conspiracy in this case extends far beyond the defendants to include the AFL-CIO, the Minneapolis Federation of Educators, the Minnesota Association of Professional Employees, Monarca, Veterans for Peace, and the Grease Pit bicycle repair shop, among others.

The defense brief includes a chart showing the many alleged tentacles or arms of this fantastic conspiracy, which include the aforementioned labor unions, environmental groups, and racial justice organizations. The image, which is on page 6 of the brief, is extraordinary. Essentially, the grand jury appears to have been told that any group that may have provided funding or other support for anti-ICE demonstrations or related activities, whether they were lawful or not, was part of a massive conspiracy to violate federal law and harm immigration agents during “Operation Metro Surge.”

The information highlights a by now familiar Trump 2.0 pattern regarding protest and dissent. The administration wants the public - and grand juries - to believe that there are no lawful and legitimate public protests. Every protest (with the exception of course of the actual violent insurrection on January 6) is a violent riot, every demonstration is a “phony” paid-for event, every left-wing protester is a “domestic terrorist,” and every group that supports protest causes is a criminal co-conspirator. Protesters themselves are characterized as abnormal and demonic. Here’s White House advisor Steven Miller:

It’s not a coincidence that when you look at these violent antifa demonstrations and you see any photograph of those who were assembled – to be blunt, not one of the people that is demonstrating looks like a normal person. Not one looks normal. They’re all deformed in some way – in their appearance, in their dress, in their mannerism. . . . Every one of them, through the course of their life and their decisions, has scarred their body and their appearance in many different ways, to the point in which their outer appearance becomes a manifestation of their inner hatred.

The political left. like the press, is cast as the enemy of the people. As the defense motion observes:

These wild conspiracy allegations are born from the fantasies of political retribution that animate the Trump Administration. President Trump and senior administration officials routinely speak of the political left in de-humanizing terms – as “deformed,” “scarred,” and “filled with ugliness,” for example. The administration has crystallized these sentiments into policies that encourage and authorize political prosecutions like this one. Most notably, in September 2025, President Trump issued National Security Presidential Memorandum 7 (“NSPM-7”), which directs DOJ to prosecute ICE protesters and opponents of the administration. HSI cited NSPM-7 as its authority to open this case

NSPM-7 is a memorandum that declares “Antifa” is a “domestic terrorist” group and urges a “new law enforcement strategy that investigates all participants in these criminal and terroristic conspiracies — including the organized structures, networks, entities, organizations, funding sources, and predicate actions behind them. The memorandum claims, without evidence, that a cabal of leftist groups is inciting violence against government. It identifies “anti-Americanism, anti-capitalism, and anti-Christianity; support for the overthrow of the United States Government; extremism on migration, race, and gender; and hostility towards those who hold traditional American views on family, religion, and morality” as the ideological foundations for violence against ICE agents and others. Prosecutors are encouraged to investigate and charge supposed co-conspirators who share a set of ideological views.

Political violence is a serious issue. Unfortunately, the administration has done all in its power to paint the matter in the most partisan terms and leverage it into persecution of groups that have criticized or dissented from its policies. The results are predictable: The Department of Justice has overcharged minor offenses, over-hyped conspiracies, and over-claimed with regard to the nature and threat posed by “Antifa.” The only silver lining may be that grand and (most) trial juries have refused to indict and convict in an extraordinary number of these cases. Prosecutors have also dropped charges after it became clear the evidence did not support them. Still, the targets of this retaliatory pattern must secure legal counsel and expend other resources relating to the investigations and charges.

That, indeed, may be part of the point. Here, as in other contexts, the administration seeks to suppress dissent by threatening speakers and groups with criminal and other investigations. Even if there are no resulting criminal charges, the executive has sent a clear message. It has ginned up “dossiers” on its political critics and subpoenaed financial and other records from organizations that are not alleged to have committed any crime. These actions treat even lawful activities like supporting protest movements as part of a criminal enterprise.

The federal government has even expanded this approach to non-ICE-related protests. Grand jury testimony shows that agents surveilled “No Kings” protesters. Of Naturally, the government had its suspicions. A DHS agent testified:

One of the things that is abundantly clear not only in guidance but is just principles as far as this investigation is, no one is ever investigated or looked at or even researched on for First Amendment protected activities. Every single individual that we have investigated there is a criminal predicate to why we’re investigating them, either statements that they have made that are criminal to their actual participation in overt criminal acts.

The grand jury was misled. In fact, mere participation in First Amendment protected activities has been the basis for DHS investigations.

In sum, the DHS investigations and surveillance tactics are part of a pattern of abusing executive power to chill political dissent. When the administration has been ordered to produce evidence supporting its claims that protesters committed crimes against federal agents (rather than the other way around), it has typically failed to deliver; when evidence comes to light that ICE agents used unlawful force against activists, the administration has maintained its counter-factual position that agents feared for their lives; and when it has been asked to substantiate its claim that protesters were “plants” associated with extremist groups, no evidence has been provided.

“Operation Puppet Master” is an apt name for the administration’s assault on left-wing groups, but not for the reason it thinks. The puppet master here is the executive branch, which wants the public to believe vandals damaged the reflecting pool, Alex Pretti and Renee Good were violent extremists, left-wing groups have been secretly funding violent demonstrations, there is no genuine local opposition to the actions of masked and armed federal agents “surging” into neighborhoods to hunt down neighbors, and protesting is a form of terrorism. These lies are being used to justify the targeting of political viewpoints and lawful First Amendment activities.

I’m taking a break from the deluge of Trump-related First Amendment controversies to write about “vanity plates” - those extremely personalized plates you probably see a lot while driving. In Virginia, where I live, nearly a million drivers pay $10 to choose a personalized set of numbers, letters, and figures for display on their vehicles. That is roughly 11% of the Commonwealth’s population, and represents the highest rate of vanity plate-bearing drivers in the United States. No wonder I spend so much time staring at - and trying to decipher - vanity plates.

As it turns out, there has been substantial litigation concerning whether state governments (DMVs typically) can restrict the content of the messages displayed on vanity plates. Fundamentally, the answer boils down to whether the personalized content on the plate represents the speech of the owner of the vehicle or the government’s own speech. If the government is speaking through the personalized plates, then under the “government speech” doctrine and Supreme Court precedent it is entitled to say what it wishes. It can discriminate against and suppress speech for any reason, including that it conveys disfavored content or viewpoints. If, instead, the vanity plates convey private speech, the government must follow the First Amendment standards that apply when it regulates speech in what is known as a “public forum.”

The government speech doctrine effectively allows the government to ignore First Amendment limits on regulating speech. As Justice Alito has warned, a “capacious understanding of government speech takes a large and painful bite out of the First Amendment.”

Until very recently, no federal court of appeals had decided whether the content displayed on vanity plates is government or private speech. That changed on July 31, when the U.S. Court of Appeals for the Fourth Circuit, in Whateley v. Lackey, held that Virginia’s vanity plates convey the speech of private drivers and not of the Commonwealth.

Whateley applied for and received the vanity plate “FTP&ATF,” which he says communicates “Fuck the police and the Bureau of Alcohol, Tobacco, and Firearms.” He sported his vanity plate for about a year before someone lodged an anonymous complaint. DMV revoked it, explaining that it was “vulgar” and could be understood to promote crime.

The district court concluded the letters and punctuation on Whateley’s plate were the government’s speech. Like the Fourth Circuit, most federal district courts and state courts have held that the speech on vanity plates is private speech. However, a minority have ruled the other way.

These courts are of course bound by the Supreme Court’s decisions, and there is one particularly on point. In Walker v. Texas Division, Sons of Confederate Veterans (2015), the Court held that “specialty” license plates authorized under a Texas program were government speech. It identified three factors for courts to consider in deciding whether speech belonged to the government or represented private speech: (1) whether the government has historically used the mode of expression generally, and of the program at issue specifically, to communicate its messages; (2) the likelihood that the public would attribute the speech to the government or a private speaker; and (3) the extent to which the government exercised control over the speech. In Walker, the Court concluded that all three factors pointed to the conclusion that the speech on “specialty” license plates like the one proposed by the Sons of Confederate Veterans was the government’s.

Walker’s conclusion is not unquestionably correct. And the decision is somewhat controversial.

To be sure, Texas subjected submitted “specialty” plates to a process that included public comment and review by state officials, demonstrating it had some degree of control over the content of the plates. But it was not involved in every minute detail, and the ideas and messages displayed on “specialty” plates originated with applicants. One could thus reasonably conclude that rather than attempting to communicate with its citizens (and others that travel its roadways), Texas had opened up a “forum” for a diversity of speech and then excluded some plates based on their viewpoint - an “egregious” violation of the First Amendment, as the Court has said.

Then there is the matter of attribution. As the four dissenting Justices observed, it makes little (common) sense to say the public is likely to attribute all of the many “specialty” license plate messages to the state:

Here is a test. Suppose you sat by the side of a Texas highway and studied the license plates on the vehicles passing by. You would see, in addition to the standard Texas plates, an impressive array of specialty plates. (There are now more than 350 varieties.) You would likely observe plates that honor numerous colleges and universities. You might see plates bearing the name of a high school, a fraternity or sorority, the Masons, the Knights of Columbus, the Daughters of the American Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a favorite NASCAR driver.

As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games—Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?

There are problems with Walker’s three-factor test, both in conception and application. This may be why the Court has itself described Walker as representing the “outer bounds” of the government speech principle.

Alas, lower courts must do their best to apply this standard. Doing so, the Fourth Circuit concluded in Whateley, confirms that vanity plates are the speech of private individuals and not the government. The court was not convinced that states have historically used vanity plates to convey their own messages, that the public would in any event reasonably attribute their messages to the government, or that the Commonwealth had exercised nearly the kind of editorial control Texas had over the plates in Walker. The court’s determination, which again has been reached by most of the lower courts to address it, makes considerable common and legal sense. Consider the fact that the vanity plate Whateley displayed was a crude but critical commentary on government - hardly the sort of thing the government would want to communicate to the public.

The Fourth Circuit stopped short of ordering Whateley’s plate restored. Having determined that the speech is private, the next step is to determine what type of “forum” the government has provided. When the government indiscriminately invites the public to communicate in a public program, it may presumptively not reject or target speech based on its subject matter or point of view. When it instead opens a program only for limited purposes, the government has more leeway: its rules must only be “reasonable” and viewpoint neutral.

The DMV’s rules for vanity plates say that it “will not approve” a requested character combination that may be seen by a reasonable viewer as “[p]rofane, obscene, or vulgar in nature,” “[s]exually explicit or graphic,” “[e]xcretory-related,” “[u]sed to describe intimate body parts or genitals,” “[u]sed to condone or encourage violence,” or “[u]sed to describe illegal activities or illegal substances.”

Those limits are likely sufficient to characterize the vanity plate program as constituting a “limited” public forum rather than one open to speech in general. But even if that is so, the Commonwealth’s revocation must be “reasonable” and viewpoint neutral. Whether it is “reasonable” to single out plates from among the nearly one million on the roads on the stated grounds may be questionable. The standards cannot be vague or incapable of even-handed application. The bigger hurdle for the Commonwealth, assuming the Fourth Circuit’s decision stands, will be proving that its revocation of Whateley’s plate was not related to the viewpoint it conveys. The Commonwealth says it revoked Whateley’s plate because it was vulgar and could be understood to promote violence. Discovery regarding its decision-making process is important. But saying “fuck” something or someone does not incite violence. Indeed, the profanity is part of the viewpoint being expressed and in that sense has emotional value.

One way for states to avoid the dilemma of policing plates is to end specialty, vanity, and other plate programs. That would be a content-neutral solution to the problem. Alas, states make considerable amounts of money from these programs. And they are, as the Commonwealth’s numbers show, quite popular with the public.

What will the Supreme Court do if it decides to hear the case? (It may not, by the way, since other federal courts of appeals have not weighed in and there is no “conflict” for it to resolve in the circuits). Walker was 5-4. The Court is more conservative now and its government speech decisions subsequent to Walker suggest a growing skepticism of government speech arguments. The Court may agree with the Fourth Circuit that vanity plates are private speech. What it will do with the public forum analysis is less certain at this stage.

As innocuous as that sounds, universities ought to be very wary of the administration’s latest entreaty.

One thing you can say for the Trump Administration is that it has used nearly every lever of power at its disposal to “reform” universities in its preferred image. Officials have been transparent in terms of their desire to rid campuses of all things “woke,” punish students for protesting in disruptive ways, and ensure that universities add more “conservative” faculty and courses. The administration has terminated billions of dollars in research funding based on pretextual charges of anti-Semitism and questionable readings of anti-discrimination law, retaliated against institutions that refused to bargain away academic freedom and free speech rights for federal dollars, and dangled a “compact” in front of universities that would have provided them a preference when it comes to federal research funding for surrendering their academic independence. This is the proper context in which to view the latest call for university cooperation from the Trump administration.

What does the “Call to Action” propose? Here are the principal issues universities are being invited to consider and propose reforms regarding:

1. Transparency and Merit in Admissions: How will your institution ensure that admissions criteria are transparent and wholly described to prospective applicants? And how will your institution ensure admissions decisions are based on merit, achievement, and your university’s educational purpose?

2. Free Speech and Open Inquiry: How will your institution protect the free exchange of ideas, wide-ranging debate, and open-minded campus discourse? And how will you guarantee that unruly and violent protestors do not harass students or disrupt classes, research, public lectures, and campus operations?

3. Intellectual Pluralism and Academic Vitality: How will your institution encourage intellectual pluralism in all its academic units? How will your faculty hiring and evaluation practices support academic vitality and ensure that all relevant perspectives are taken seriously? And how will your institution ensure the research enterprise is dedicated to advancing knowledge, deepening understanding, and serving the American people who fund it?

4. Affordability, Value, and Student Outcomes: How will your institution ensure that families can access affordable, high-return, degrees? And what will your institution do to contain costs, improve pricing transparency, and ensure that every academic program equips students to repay their loans?

5. Academic Standards and Rigor in the Age of AI: How will your institution incentivize rigor in the age of AI, combat grade inflation, and prioritize excellence in teaching and learning?

6. Safeguarding Research Integrity from Malign Foreign Influence: How will your institutions protect academic programs from foreign influence, and safeguard the integrity of the research enterprise?

7. Prioritizing American Interests: How will your institution answer this national call to action? How can your campus and faculty advance American security interests, deliver academic programs that meet urgent workforce needs, and contribute materially to the Nation’s prosperity?

Restoring public trust in universities is a laudable goal, to be sure. Many universities support and are already making efforts to address things like affordability and AI. The modern university does have its challenges. It seems everyone - especially those who do not teach or work at these institutions - has ideas about how to “reform” campuses. But a government that announces its intent to turn campuses rightward for partisan purposes should be distrusted. The fundamental problem is that who teaches, what they teach, how they teach, and who is punished for what campus infractions are aspects of academic freedom and free speech. Governments cannot simply dictate these things. Nor can they bring them about through coercion. The impetus for reforms relating to “merit” in admissions, “intellectual pluralism” (whatever that means to the White House and Ed Department), and measures addressing “unruly” protests must come from the universities themselves.

One might argue that there is no pressure or coercion here, merely broad guidelines for reform and improvement and a call to address some issues many acknowledge are of concern. It is true that at first glance, Secretary McMahon’s “Call to Action” does not seem to come with any strings. Perhaps the administration, chastened by the fact the universities overwhelmingly rejected its “compact,” have decided to engage in dialog rather than try to jawbone or coerce compliance.

However, a White House official suggested that universities that answered the “Call to Action” might be more involved in discussions about federal funding than those that did not. The Trump administration’s M.O. has not been one of cooperation and dialogue. And especially where universities are concerned, it has taken an aggressive and transactional approach. In short, it has shown little to no respect for academic institutions or their leaders. The “Call to Action” is not (yet) “we can do this the easy way or the hard way.” But universities ought to be concerned about unspecified sticks and carrots. The administration traffics in and leverages vagueness.

If the administration had been interested in having a dialogue, it could have started with the “Call to Action” rather than ginned-up investigations and retaliatory funding terminations. In a normal administration, one might not have reason to be suspicious of cynical about a “Call to Action” to improve universities. However, the administration’s prior bad faith and violations of law are unsettling. Secretary McMahon calls on every postsecondary institution “to publish, by the end of 2026, a clear public statement outlining its commitment to implementing reforms that will help restore public trust in higher education.” But which reforms? And who decides whether they will “help restore trust in higher education” - a trust, by he way, this administration has done everything it can to undermine. Are the “best” reforms, in terms of things like “free speech and open inquiry,” “intellectual pluralism,” and student codes of conduct likely to be those that produce the rightward turn the Trump administration has been openly advocating for? Has the administration ever signaled otherwise?

The administration’s own commitment to “free speech and open inquiry” is suspect. I’ve already published a book detailing the many ways in which the second Trump administration has threatened or violated First Amendment rights across a range of areas. Its interpretation of “free speech and open inquiry” would allow government to censor certain disfavored views regarding gender, race, and American history, prosecute critics and protesters based on their protected expression, characterize factual reporting as “treason,” and use executive power to broadly control narratives at museums, national parks, and other institutions. How, then, can it be trusted when it comes to influencing who is hired, what they teach, and which protests are considered “unruly” forms of harassment at universities?

Simply put, the administration has lost all credibility when it comes to calling on others to support “free and open inquiry.” This is a significant problem - not only for the universities and other regulated entities but also for the federal government. An administration that has dedicated so much power and energy to destroying trust in universities and other institutions (the press, the Bar, museums, etc.) that can check its narratives is not a credible messenger when it comes to proposing academic reforms.

What are universities to do? They could collectively reject the “call,” as they did the earlier “compact.” I have argued that targets have a duty to demonstrate backbone when they are subject to pressure campaigns. If all universities refused the “call,” there may be some safety in numbers. That collective response would still require fortitude and civic courage. The administration has demonstrated the retaliatory and coercive tactics it is willing to deploy, and it may seek to make examples of some of the refusing institutions.

Universities could also respond in ways that seek to preserve academic and institutional independence. The Alliance for Higher Education and PEN America have compiled a useful toolkit for universities that take this direction. The gist is to take control of the narrative regarding federal funding of higher education, free speech on campus, and the need to maintain research independence. I suppose one could view that as a form of what my new article calls “backboning.” It is better, in any event, than simply capitulating to the administration’s effort to exert political control over higher education.

My article argues that the targets of these pressure campaigns have a constitutional, democratic, and moral duty to resist them and to engage in what it calls “backboning.” Backboning involves displaying civic courage by choosing to stand up for First Amendment rights and principles – even when doing so is difficult, costly, or even dangerous. It takes many forms, including continuing to communicate disfavored viewpoints, asserting First Amendment and other rights in court, rejecting deals and settlements that trade away expressive rights, and defending against rather than settling lawsuits.

As I was completing my draft, The New York Times, which has done excellent reporting on the surrender by universities, media companies, and others targeted by the Trump administration, published an article entitled, “How a Top Law Firm Went From Standing Up to Trump to Bending the Knee.” The article details how an elite law firm, Paul Weiss, bent the knee and made a “deal” with the Trump administration rather than fight what it believed was an unconstitutional executive order targeting the firm.

The Trump administration has targeted thirteen law firms in all, threatening to impose various sanctions on them including barring their lawyers’ access to federal buildings and restricting their representation of federal contractors. President Trump made clear in each order that he was singling out the firms based on who they had represented in the past and their protected expression. Nine of the law firms caved, agreeing as part of “settlements” to provide hundreds of millions of hours in “pro bono” work in exchange for withdrawal of the orders. Four of the targeted firms challenged similar orders in court and they have thus far prevailed.

The article focuses on Paul Weiss but provides critical insight into how the other law firms ultimately capitulated to the administration. While each firm’s dynamics may be somewhat unique, the article shows how powerful businesses surrendered in the face of governmental pressure.

The Times reporting provides details about infighting at Paul Weiss both prior to and after the executive order. During the first Trump presidency, Paul Weiss participated in and publicized work it did challenging administration policies like the Muslim travel ban and immigration policies that separated children from their parents. However, after Trump assreturned to office in 2024, the firm began to scrub its website of policies and representations that might draw the ire of the president. It also withdrew from a case in which its client sued the administration. These were ominous acts of cowardice. The firm was willing to self-censor in order to avoid governmental attention.

The decision to enter into a “deal” with the administration was a much bigger capitulation. As The Times reports:

When Mr. Trump issued his executive order against Paul Weiss, leaders at the firm were convinced they could beat it in court. But they feared opposing the president would hurt the firm’s finances and its clients.

Ultimately, the firm was unwilling to assert its First Amendment and other rights in court. Instead, it took increasing measures to appease the White House. According to the Times:

As a sign of how skittish the firm had become, an email exchange reviewed by The Times documents a heated discussion among partners about how — or whether — to alter a website that recounted the firm’s work against white supremacists and the rioters of Jan. 6, 2021. Some even proposed checking with the administration to see whether the website would anger the White House. . . . And after the deal was struck, when a top partner wanted to bring a reproductive rights case as a show of independence from the administration, she was shut down.

There was additional self-censoring:

Paul Weiss began scrubbing its website of references to public interest work that might conflict with Mr. Trump’s war on “wokeness.” The page highlighting its efforts to find “parents deported by the Trump administration and to reunify families” vanished, as did mention of its work on L.G.B.T.Q. issues.

Like other law firms that have bent the knee, Paul Weiss insists that it has not jeopardized its “independence.” (Boris Epshteyn, who shaped the law firm deals, bragged, “I’m in a pretty good place now. I’m the chairman of Paul Weiss.”) That word has little meaning if a law firm not only considers pre-clearing the content of its own website with government officials but declines cases because they that might anger or upset the president.

Individual lawyers were also self-censoring. The reporting indicates that the firm’s managing partner, who had been vocal about the firm’s past representations challenging Trump policies, was now shying away from speaking about such representations. Firm lawyers were also being encouraged to lower the firm’s profile in public interest spaces - even to the point of removing its name from press releases in cases where it represented a client.

Backboning requires civic courage. As my article discusses, in an ideal world targets of pressure campaigns would speak truth to power and not surrender. However, whether a target discharges the duty to backbone depends on many factors. These include potential economic costs, fear of regulatory backlash, and reputational concerns, but also the degree of commitment to constitutional rights, professional standards, and the rule of law. Law firms stand in a unique position with regard to resisting governmental abuses of power, including when those abuses are directed at them. The four firms that challenged the executive orders in court balanced these concerns in a manner that fulfilled their duty to resist being targeted for protected expression. The capitulating firms appear to have placed dispositive weight on financial considerations.

Paul Weiss’s “settlement” (for violations unproven or even unknown) involved an agreement to perform “$40 million in free legal work that both Mr. Trump and the firm backed.” According to the Times, “By the summer of 2025, Paul Weiss was doing free legal work for the Commerce Department, and unlike in the first Trump administration, it was not publicly associated with any action against the White House.” Yet, again, the firm claims it has retained its independence.

According to the article, “When Mr. Karp presented the framework of the deal at a meeting of the firm’s partners on March 20, no one objected. Thus, not a single dissenting voice among the partners. That was not true of some alumni of the firm:

A public letter to Mr. Karp signed by more than 100 of the firm’s alumni called the decision “a craven surrender to, and thus complicity in, what is perhaps the gravest threat to the independence of the legal profession since at least the days of Senator Joseph McCarthy.”

Further, although the partnership was apparently satisfied, “43 associates who had no say in the decision emailed Mr. Karp asking to discuss the ‘firm’s commitment to longstanding principles.’”

The last part of my article discusses how we might facilitate and, ideally, maximize jawboning so that these types of pressure campaigns are more likely to fail. We can strengthen and clarify some anti-coercion doctrines so that they offer more effective paths to relief. But as the Paul Weiss saga shows, having strong constitutional claims does not guarantee backboning. We have to address the economic and other incentives that convince targets to bend the knee. For law firms, that may mean altering the governance structure so that more voices are represented when “settlements” are presented.

Ultimately, we need to alter public attitudes and narratives such that the type of pressure campaign the administration has waged against law firms, universities, museums, and other targets is viewed by everyone as fundamentally “un-American.” As I stated at the end of my draft article:

Right now, economic, regulatory, and other incentives to cave in to governmental pressure remain high. A backboning movement can only begin with a recognition that this behavior violates a collective duty to resist in the name of preserving First Amendment values. Unless and until American speakers, institutions, and intermediaries are willing to honor that commitment and demonstrate civic courage and character, government officials will continue to press, cajole, and threaten in ways that undermine the freedoms of speech and press.

Khalil and other international students prevailed in early litigation over their detention. Judges in bail proceedings uniformly agreed that their detention was based on protected expression and thus violated the First Amendment. However, things were always going to be more difficult for the challengers in immigration courts and on appeal, where deference to the government and issues like jurisdiction might undermine their cases. Indeed, Khalil has thus far not been successful in seeking to enjoin his deportation on First Amendment and other constitutional grounds.

Khalil is refusing to go quietly. He has filed a federal lawsuit alleging that U.S. officials and private parties entered into a conspiracy to deny him civil rights including his right to engage in protected speech. The allegations in that lawsuit would have undoubtedly received greater attention, but for the myriad of scandals and conflicts swirling around the second Trump administration.

I want to highlight the allegations in the lawsuit, which detail just how far the current administration and its supporters have gone to turn protected political speech into alleged support for terrorism. The campaign to punish pro-Palestine speech was premeditated, in the same way early historical fights targeted communist, socialist, and other “radical” speakers.

Whether or not Khalil prevails in his lawsuit, and there will be obstacles there as well, there is plentiful evidence that right wing think tanks, activists, and government officials sought to suppress pro-Palestine political advocacy in the United States. Khalil’s lawsuit, if it survives a motion to dismiss, will shed further light on this effort (as discussed below, we already know a great deal).

The Plan to “Crush” the Pro-Palestine Movement

Before he won a second term in 2024, President Trump declared that he would “crush” the pro-Palestine movement. The quiet part was already being spoken out loud. Although unwavering support for Israel may be waning on the left, both political parties have long supported Israel. Officials in both parties have sometimes overreached in characterizing pro-Palestine speech as anti-Semitic or as necessarily supporting Hamas. However, a presidential candidate to run on a platform of “crushing” a political movement was something else entirely.

When he made his campaign promise, Trump was reacting, as many candidates and officials were, to the campus protests that followed the October 7, 2023 terrorist attack by Hamas against Israel. Republicans had already made a big show of grilling university presidents over what they viewed as coddling rather than forcibly removing and arresting student protesters and refusing to condemn calls for violence against Israel. There was indeed anti-Semitic and violent rhetoric on some campuses. But criticizing Israel’s response to the attack or generally supporting the Palestinian cause or the Palestinian people is neither anti-Semitic nor unprotected speech.

Nonetheless, it became a standard right wing talking point that campus protesters should be punished for any expression that supported Israel’s declared enemies. But “crushing” a political movement? Was this simply the president, as is his habit, charging up the political rhetoric? And where did the idea to pursue this agenda by targeting international students who engaged in campus activism come from?

We know a lot more about the origins of the administration’s policies regarding pro-Palestinian speech and speakers as a result of a Massachusetts federal district court decision declaring that it violated the First Amendment. In American Association of University Professors v. Rubio, Judge William Young held a bench trial during which he received many exhibits relating to efforts to target and deport international students and heard testimony from several Trump administration officials who worked at the Department of State and the Department of Homeland Security. Judge Young ruled that the plaintiffs had proven that the Trump Administration adopted a plan to target, detain, and deport international students based on their political advocacy and that this policy violated the First Amendment.

The trial record contains many details about how administration officials, including a working group at the White House, originated the ideological deportation policy. Testimony and exhibits also showed that DHS and ICE agents were fed names of international students from two websites that identified individuals who had engaged in pro-Palestine advocacy and activism. DHS and ICE officials used these sources to compile files on several international students, some of whom were then targeted for arrest, visa revocation, and detention. (You may recall images and recordings of masked agents arresting some of the students in or near their homes.)

At the trial, Trump Administration officials provided details about how these cases were processed, and the court received memoranda in which officials pointed to protected expression as grounds for arrest and revocation. In fact, as Judge Young concluded, the officials proceeded with no little or no regard as to whether the speech at issue was protected by the First Amendment. (Judge Young concluded that it was core political speech, and that legally resident aliens are entitled to the protection of the First Amendment).

The public record in AAUP v. Rubio helps Khalil’s case. Many of the same defendants and participants were involved in that case, which addressed essentially the same ideological deportation policy Khalial challenges here. As discussed below, Khalil alleges a conspiracy to deprive him of his civil rights. However, as detailed as the testimony and materials at the trial were, they did not tell the full story of how the administration’s ideological deportation policy originated or who was involved in its framing and implementation. There were some objections based on executive privilege to disclosing Stephen Miller and other officials’ participation. It was sufficient for the plaintiffs’ claims in AAUP that a policy was adopted and implemented in ways that violated the First Amendment. Khalil will need more if he is to succeed.

There is more - much more - to the story of how the executive branch came to target and seek to deport individuals for their political speech. To understand the origins of this policy, we need to step back to the period prior to Trump’s election in November 2024.

The Heritage Foundation, which authored the much-discussed “Project 2025,” developed a lesser-known blueprint for a project known as Project Esther: A National Strategy to Combat Antisemitism. The project came together in the wake of Gaza-related campus protests. Here is the project summary:

America’s virulently anti-Israel, anti-Zionist, and anti-American “pro-Palestinian movement” is part of a global Hamas Support Network (HSN) that is trying to compel the U.S. government to abandon its long-standing support for Israel. Supported by activists and funders dedicated to the destruction of capitalism and democracy, the HSN benefits from the support and training of America’s overseas enemies and seeks to achieve its goals by taking advantage of our open society, corrupting our education system, leveraging the American media, coopting the federal government, and relying on the American Jewish community’s complacency. The National Task Force to Combat Antisemitism intends to enlist all willing and able partners in a coordinated effort to combat the scourge of antisemitism in the United States.

The same movement candidate Trump vowed to “crush” was identified by “Project Esther” as a sinister threat to American national security. Its offense, you’ll note, is “trying to compel the U.S. government to abandon its long-standing support for Israel.” The authors purport to have identified a nefarious “Hamas Support Network” and linked the pro-Palestine movement, and pro-Palestine speech and association, to it.

Billing it as an effort to combat anti-Semitism in the U.S., Project Esther’s authors sought to “organize and guide all willing and able partners in a coordinated effort that employs all available resources to combat the scourge of antisemitism in the United States. Our hope is that this effort will represent an opportunity for public–private partnership when a willing Administration occupies the White House.”

The public bit is important. The report does not acknowledge that speech designed to influence American foreign policy toward Israel is core protected political speech, or that sharing the goals of a terrorist group cannot is not a legitimate basis for punishing lawful speech and association. Hence governments cannot participate in any “partnership” that crosses these lines.

The report relied in part on information compiled by Canary Mission, an organization that identifies and tracks the activities of faculty, protesters, and others who it deems sympathetic to Palestine or Hamas. Although its aims were broad, Project Esther focused in part on denying those associated with the pro-Palestine movement access to educational institutions. It proposed to remove what it viewed as anti-Semitic courses and Hamas-supporting propaganda from curricula and terminate faculty who supported Palestine. It also sought to ensure that groups and individuals associated with the movement were denied access to campuses and suggested their visas be revoked for unspecified “violations.” The plan called for the removal of international students who were identified as pro-Palestine demonstrators.

As for that partnership with a “willing Administration,” after Trump was elected his State Department and Homeland Security Department targeted, arrested, and sought to remove Khalil and other pro-Palestine demonstrators. As reported by The New York Times, Heritage celebrated:

And last year, months into Mr. Trump’s campaign to detain and deport foreign-born protesters, its authors took a victory lap. Mr. Greenway, then a national security director at Heritage, said it was “no coincidence that we called for a series of actions to take place privately and publicly, and they are now happening.”

Khalil’s Complaint - A Conspiracy to Violate Civil Rights

This is where Khalil’s complaint picks up. He alleges that officials in the Trump Administration, including Secretary of State Rubio, Acting Attorney General Todd Blanche, and Stephen Miller, conspired with employees of the Heritage Foundation and two private organizations (Canary Mission and Betar) that targeted campus protesters, to violate his First Amendment rights. He seeks monetary damages as well as declaratory and injunctive relief pursuant to an 1871 law enacted to address the atrocities of the Ku Klux Klan.

The complaint is 130 pages long. It contains a detailed “timeline” of the alleged conspiracy. The complaint goes into great detail concerning the “longstanding hostility” of the defendants to pro-Palestine protesters and the Pro-Palestine movement in the U.S., the social and political climate following the Hamas attack in Israel, and the subsequent protesters on U.S. campuses. It relies on candidate Trump’s vow to “crush” the pro-Palestine movement, the content of Heritage’s “Project Esther” report, and Heritage’s celebration of its “wins” during the early days of the second Trump term. The complaint also details how the plan was implemented, including the adoption of the Trump Administration’s ideological deportation policy and the arrests of Khalil and other international student activists pursuant to that policy.

In addition to the broad conspiracy, Khalil alleges that “gross procedural irregularities” in his arrest and immigration proceedings constitute the continuation of the conspiracy. And he alleges that the defendants have “ignored, tolerated, or embraced bona fide antisemitism,” which demonstrates their attacks on Palestinian advocacy are pretextual.

The complaint describes a blueprint for suppressing political speech and activism by high-level government officials and private conspirators. It is a chilling document, in the sense that it shows how a government and its enablers have targeted a viewpoint because it might convince audiences to take a closer look at Israel’s actions in Gaza. Remarkably, neither the government nor private defendants have been at all reticent about supporting this agenda - indeed, if anything, they seem proud of it. It is astonishing just how much the complaint relies on direct quotations from Project Esther.

Regarding the conspiracy, the complaint alleges:

• “Soon after the Blueprint was published, and the Trump Administration was elected into office, the Blueprint’s stated goal of recruiting a private “coalition” was accomplished when the Betar and Canary Mission Defendants began their work to effectuate the conspiracy, sometime between late 2024 and January 2025.”

• “Upon information and belief, pursuant to the Blueprint, in or around November 2024, the Betar and Canary Mission Defendants began surveilling and pre-selecting Palestinians and their supporters as targets of the conspiracy with the goal of beginning the execution of the “public-private partnership,” and then communicated directly with the Federal Defendants who effectuated the arrest, detention, and attempted deportation of those pre-selected targets.”

Thus, the public-private “coalition” Project Esther referred to had come together. Betar and Canary Mission supplied nearly all of the information DHS and ICE relied on to generate action reports that led to the revocation of student visas. Indeed, Betar identified 8 out of the 9 international students the administration sought to deport. Betar also shared its work with Heritage for “Project Esther,” and publicly announced this cooperation. Canary Mission was also involved with both Project Esther and the federal government’s efforts to deport international student activists. Other than the Heritage angle, this information was adduced at the AAUP trial.

As for the federal defendants, as noted candidate Trump was not shy about his plans if elected. Sure enough, one of his first executive orders directed agencies to seek to deport individuals who “espouse hateful ideology” - including those who “advocate for, aid, or support designated foreign terrorists and other threats to our national security” and those who “bear hostile attitudes toward [U.S.] citizens, culture, government, institutions, or founding principles.” A second executive order stated that the Trump Administration would target for investigation “post-October 7, 2023, campus anti-Semitism.” As Khalil’s complaint alleges, the executive orders “parrot and cement the strategy described in the Blueprint, by falsely casting activism in support of Palestinian rights as antisemitic and terroristic so as to justify retaliatory arrests and deportations on precisely those grounds.”

The lawsuit alleges that

senior federal officials, including Defendants Miller and Armstrong, as well as representatives from DOS and DHS . . . met 12-20 times to plan the implementation of the conspiracy to target individuals pre-selected by the Private Defendants for arrest, imprisonment, and deportation. In these meetings, they discussed, among other things, a process to deport Palestinians and/or their supporters.

The complaint relies on the trial record in AAUP for this and other allegations relating to planning and executing the alleged conspiracy.

Khalil alleges that the co-conspirators’ plan consisted of

(i) identifying and targeting non-citizen students or academics who are Palestinian and/or support Palestinian rights; (ii) falsely accusing them of antisemitism or supporting terrorism; (iii) revoking their visas or finding them removable using sections of the INA never before deployed against constitutionally protected speech; (iv) arresting or attempting to arrest them by often-masked agents of the Federal Defendants, lacking judicial and administrative warrants; (v) hurrying to transport arrested individuals into detention centers over 1,000 miles from their homes, in an effort to evade the jurisdiction of federal courts that Federal Defendants believed would most closely scrutinize their unprecedented action; (vi) openly seeking to deport them on the basis of their support for Palestinian rights; and (vii) touting their success at repressing support for Palestinian rights following their arrest and detention. And, at least in Mr. Khalil’s case, engaging in procedural irregularities in the charging documents and even manipulating the adjudication of his immigration case and subjecting him to a sham immigration process, to ensure the conspiracy’s success—Mr. Khalil’s expulsion from the United States—despite the blatant constitutional violations.

The complaint contains excerpts from private defendants’ social media and other communications in which they boast about their role in achieving deportation orders and statements by Rubio, Miller and other officials celebrating the results.

In sum, the complaint is a detailed and chilling account of how a blueprint to target and sanction speakers for protected speech and association came to be adopted and enforced by government officials at the highest level. Anyone concerned about the preservation of First Amendment rights should be deeply disturbed by what is alread in the public record as well as what is alleged in Khalil’s complaint.

And on the “it can’t happen here” front, while the effort here applied to foreign nationals lawfully in the United States, the Trump Administration has designated “Antifa,” an alleged domestic organization, a “domestic terrorist organization” and criticized ideas it associates with the political left as insufficiently patriotic. And it is just getting revved up about the scourge of Democratic Socialism, which it has already falsely equated with “Communism.”

Likelihood of Success

Will Khalil prevail? The question assumes, of course, that he will not be deported prior to any disposition. Indeed, he may have filed the lawsuit in part to convince the courts to allow him to stay. We shall see how the immigration matter plays out.

I cannot say there is a clear analog for Khalil’s allegations from which to handicap the result. Perhaps the closest analogy might be Red Scare era cases, but as far as I know they did not allege such a wide-ranging public-private conspiracy.

The trial record in AAUP is critically important in the sense that it allows Khalil’s lawyers to present detailed aspects of the alleged conspiracy based on the findings of the trial court rather than merely alleging them based on information and belief. Still, there is much to do in terms of connecting some of the defendants, in particular Miller, Blanche, and Rubio, to the alleged conspiracy - and, more importantly, proving that they conspired to violate Khalil’s rights rather than engaged in lawful enforcement of federal immigration laws. There will likely be some evidentiary obstacles, including claims of executive privilege. And government officials may try to claim some form of immunity from this particular kind of civil lawsuit.

Ultimately, I concur with these comments by Stephen Vladeck, a law professor at Georgetown University Law Center, who weighed in for The New York Times:

The government’s behavior in Khalil’s case stinks to high heaven. . . . Whether that opens the door to this kind of broad theory of civil liability is another question altogether. Courts will be worried about what kind of precedent it would set unless there are clear reasons Khalil’s case is not just factually unique but legally unique.”

It may well be that this case is factually and legally unique. Still, I agree that courts will be concerned that allowing the case to move forward may interfere with core executive functions relating to enforcement of immigration laws and national security.

Regardless, Khalil’s complaint, like the trial record in AAUP, has provided some transparency regarding how those in power and their enablers have run roughshod over First Amendment rights. In the final analysis, the remedy for this violation may have to come at the ballot box.

Various media are reporting that the White House has proposed restricting public access to Lafayette Square Park during unspecified “heightened conditions.” Trump Administration officials have submitted a request to a federal design panel, the Commission of Fine Arts, to approve the addition of a permanent fence around the park. The administration claims this is necessary owing to “security” concerns relating to demonstrations.

Lafayette Park, a seven-acre space located directly north of and within sight of the White House, has been a frequent site of public protests. Here, for example, is an image of a demonstration in the park for women’s suffrage. The National Park Service issues more than a hundred permits a year for demonstrations, although gatherings of fewer than 25 people are not required to have a permit.

During President Trump’s first term, Black Lives Matter demonstrators gathered there after George Floyd’s murder. Trump infamously marched outside, with one of his top generals, his Attorney General, and other officials in tow, to hold a Bible upside down and demand an end to the demonstrations. Police had earlier cleared the park using tear gas and rubber bullets. At one point during the BLM demonstrations the president, who never misses an opportunity to falsely equate public protests and riots or to deride protesters as “thugs,” reportedly suggested to his Secretary of Defense that demonstrators be shot in the legs.

Fencing off and possibly closing Lafayette Park for indeterminate periods would undermine vitally important First Amendment free speech, assembly, and petition rights. In 2012, I testified before a House subcommittee investigating the presence of Occupy Wall Street demonstrators in another D.C. park, McPherson Square. I was invited by the committee to testify about the importance of access to such places for purposes of exercising First Amendment rights.

As I explained, under settled First Amendment doctrine, public parks are recognized as “traditional public forums.” As the Supreme Court has explained, public parks have “immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” I testified:

Throughout our history, exercise of these rights has been critical to proselytizers, petition-gatherers, and political movements. This has been especially true of parks such as McPherson Square, which are located in the nation's capital and near the seat of government. The National Mall, Lafayette Square, and the Lincoln Memorial have all been sites in which national moments and public memories have been deeply inscribed. As the D.C. Circuit has recognized, local parks in the District "constitute a unique situs for the exercise of First Amendment rights." Thus, it is especially important that rights to speak, protest, and petition remain as broad and robust as possible in these places.

My testimony drew on the arguments and claims in my first book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge University Press, 2008). The book focused on the necessity of preserving access to public places, including but not limited to parks, to facilitate the exercise of First Amendment rights and to support various free speech values. As the Black Lives Matter, No Kings, and countless other demonstrations have since shown, even in a digital age the people fervently want to gather in public places - particularly during moments of high tension and conflict.

Speech Out of Doors examined the special relationship between place and public expression, and criticized government efforts to restrict, shrink, and narrow access to public places, including parks and streets, to control and sometimes suppress public contention. The book identified and analyzed the causes of the erosion of expressive space, which include privatization, the built environment, legal restrictions on public assembly and expression, reliance on security justifications and the corresponding militarization of public places, and aggressive protest policing.

Fencing off Lafayette Park and potentially closing it based on “security” concerns fits the general pattern. It raises the same serious First Amendment concerns. Lafayette Park is no ordinary public forum. Rather, it is what I referred to in the book as an iconic space which speakers have historically relied upon to communicate with government and raise public awareness of various causes. As mentioned, countless protests have occurred, and continue to occur, in the park.

The park’s location, which in terms of public spaces is as close as one can physically get to the White House, allows demonstrations to occur not only in a highly symbolic place but also in a location where it is difficult for government officials to ignore the messages. For example, during an anti-Vietnam War protest in 1967, President Johnson and his family apparently could hear the chants from inside the White House: "Hey, hey LBJ, how many kids did you kill today?"

As I explained in Speech Out of Doors, aside from its practical advantages, location can also be an important part of demonstrators’ messaging. Demonstrating near the seat of power enhances the communicative impact of an assembly. In Clark v. Community for Creative Non-Violence (1984), the Supreme Court upheld a National Park Service regulation that banned camping (but allowed overnight vigils) in Lafayette Square Park and on the National Mall. (My congressional testimony addressed this regulation.) Advocates for the unhoused chose the park to emphasize to those in power the perils of living without shelter. The majority rejected their claim, and in doing so provided a sterile description of the place they had chosen as the site of their demonstration. But in a dissenting opinion, Justice Thurgood Marshall admonished the majority for its thin attention to place:

Missing from the majority's description is any inkling that Lafayette Park and the Mall have served as the sites for some of the most rousing political demonstrations in the Nation's history. It is interesting to learn, I suppose, that Lafayette Park and the Mall were both part of Major Pierre L'Enfant's original plan for the Capital. Far more pertinent, however, is that these areas constitute, in the Government's words, "a fitting and powerful forum for political expression and political protest."

As Justice Marshall explained, “respondents clearly intended to protest the reality of homelessness by sleeping outdoors in the winter in the near vicinity of the magisterial residence of the President of the United States.” In other words, demonstrators chose the location intentionally in order to amplify their message.

President Trump has been making a lot of aesthetic changes to the White House and surrounding areas. This one, however, comes with serious constitutional implications. To be sure, the administration’s report to the Commission refers to Lafayette Park as a "vital venue for First Amendment activity" and concedes that permanent fencing would limit visibility of protests. These are sufficient reasons to deny its request (although one should not expect a Commission comprised of Trump appointees to do so, and it has indeed indicated support for the fencing proposal).

Representative Eleanor Holmes Norton has introduced a bill in Congress to prohibit adding permanent fencing around Lafayette Park. The bill, of course, has no real chance of becoming law. As she observed, “Permanent fencing at Lafayette Square would send the wrong message to the nation and the world by continuing to transform our democracy from one that is accessible and of the people to one that is exclusive and fearful of its own citizens.”

Unfortunately, that is precisely the message the White House, which already sits behind a new steel fence Trump recently had constructed, wishes to send to dissenters and demonstrators. Given the president’s clear lack of respect for the right to engage in public protest, there is little reason to think that the fencing and other barriers, which the administration contends will make closure of the park much easier, will not be used for that purpose at the very first sign of public dissent.

Last week the U.S. Court of Appeals for the Eleventh Circuit ruled (2-1) in Pernell v. Florida Board of Governors that Florida’s “Individual Freedom Act” (generally referred to by its proponents as the “Stop Woke Act”) violates the First Amendment. Florida’s law sought to broadly suppress discussion of certain perspectives on race, gender, and national origin in public school classrooms, including those at state universities. A lawsuit challenging the law’s provisions as they relate to universities on First Amendment grounds was filed back in 2022, and a district court enjoined the law’s enforcement on First Amendment grounds. The appeals court decision affirms that judgment.

Florida’s law purported to ban the “promotion” of eight concepts or ideas, including whether a person is inherently biased based on race or sex, whether privilege or oppression is determined by race or sex, and whether virtues such as “merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness” are racist. As the court observed in Pernell, the law “bars Florida’s educators from promoting or endorsing” these disfavored ideas about “race, color, sex, and national origin” in the classroom but allows criticism of those same ideas. As the court also noted, “The penalties for endorsing these disfavored viewpoints are steep—for both individuals and universities.” Sanctions for the university included devastating losses of state funding and, for faculty, possible termination (based on a system that relied on student reporting of alleged violations).

The court’s decision invalidating what it characterized as a “positively dystopian” form of viewpoint discrimination is an important victory for both faculty and student rights in university classrooms.

Faculty Speech and Academic Freedom Rights

In Garcetti v. Ceballos (2006), the Supreme Court held that when public employees communicate as part of their “official duties,” the First Amendment does not protect their speech. Regarding university faculty, whose official tasks include teaching and producing scholarship, that rule threatens to gut any protection for classroom pedagogy. Although it recognized the stakes of extending its rule to university faculty, the Court has not yet addressed whether or how Garcetti applies to faculty academic speech.

In defending the “Stop Woke Act,” Florida invoked Garcetti’s rule that “employee speech” does not receive First Amendment protection. The penal majority ruled that Garcetti does not apply to university faculty classroom speech:

Blessing an extension of Garcetti here would leave no room—none at all—for the traditional value of academic freedom. True, the Supreme Court has not been precise about the boundaries of that freedom or its relationship to the First Amendment. But expanding Garcetti to cover every word of every college lecture would imperil academic freedom to a degree that is incompatible with the Supreme Court’s precedents.

Florida officials also claimed that because they paid faculty salaries at public universities, they could control professors’ speech. The state argued that the paid-for speech was the government’s own. Under the Supreme Court’s decisions, when governments speak, they are entitled to determine what they wish to say. Viewpoint neutrality standards do not apply to government speech. The appeals court firmly rejected the state’s government speech claim:

Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth.

The court also held that Florida’s viewpoint discriminatory law violated faculty academic freedom rights. In decisions handed down in the middle of the twentieth century, the Supreme Court warned that government should not impose a “pall of orthodoxy” in university classrooms. It described academic freedom as “a special concern of the First Amendment.” However, the Court did not and has not since clarified the scope of faculty speech rights in the classroom or the relationship between those rights and the First Amendment.

Despite the lack of guidance, the Eleventh Circuit rejected Florida’s claim that it could broadly prescribe and proscribe classroom discourse:

This new rule also runs headlong into the Supreme Court’s repeated, if imprecise, endorsements of academic freedom. If the First Amendment offers any boundary of protection at all for public university classrooms, this statute crosses it. . . . Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them. Forcing an official government line—in a college classroom of all places—is exactly the “pall of orthodoxy” that the First Amendment will not tolerate.

Thus, the Eleventh Circuit has now joined several other federal courts of appeal in holding that academic freedom and the First Amendment protect classroom teaching. That aspect of its decision, which reasoned that university faculty are not “ordinary civil servants” and the state is no ordinary employer when it comes to regulating their classroom expression, protects faculty from similar government efforts to impose official classroom orthodoxies. As the court observed, “if Garcetti applies to all aspects of scholarship and teaching, academic freedom is a nullity.” That result, the panel concluded, would be inconsistent with the Supreme Court’s “declarations that scholarship and teaching are part of the First Amendment package.”

Ultimately, the panel held that the “Stop Woke Act” violated the principle that the government must remain neutral as to viewpoint - especially in classrooms, which the Supreme Court has described as “peculiarly the marketplace of ideas”:

Under the First Amendment, Florida has no compelling interest in creating a per se rule that some speech, regardless of its context or the effect it has on the listener, is offensive and discriminatory. It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.

Students’ Right to Learn

Some of the plaintiffs in Pernell were university students. Although the court’s conclusion that the law violated faculty plaintiff's’ rights was a sufficient ground on which to enjoin it, I wish the court had said more about their rights.

As the court noted, “Florida seeks to strip public university professors—and by extension their students—of the ability to fully engage with ideas that are, for better or for worse, very popular in some academic circles.” However, as the American Association of University Professors has proclaimed in a Joint Statement on Rights and Freedoms of Students, “Freedom to teach and freedom to learn are inseparable facets of academic freedom. The freedom to learn depends upon appropriate opportunities and conditions in the classroom, on the campus, and in the larger community.”

Thus, while it is true that the law targeted faculty speech and provided sanctions only for universities and professors, enforcement of the “Stop Woke Act” undoubtedly would impact students’ First Amendment and academic freedom-based rights to learn. If professors decided not to teach a topic owing to concerns about being punished under the law, students in their classes would be denied access to important ideas and information.

Fortunately, the panel did at least recognize the importance of students’ rights. It wrote: “Florida’s restrictions are, as the State admits, an attempt to force uniformity of thought on students by curtailing the free exchange of ideas in universities—the very environments traditionally regarded as laboratories for expression and truth seeking.” When it comes to discussing and debating controversial ideas, the court observed, “the First Amendment trusts students to figure it out for themselves.”

******

Pernell is a big win for free speech and academic freedom in university classrooms. Florida’s claims endangered classroom pedagogy and, perhaps, faculty scholarship. If the state can control any expression it funds, then it can determine not only what is taught but also what is published. Further, as the court noted, “the State’s rationale is not limited—it would allow the legislature to block any speech on any topic for any reason.” Indeed, the state even conceded that under its proposed rule officials could even ban classroom criticism of government officials.

That is indeed “dystopian.” The panel deserves credit for recognizing the dangerous nature of the state’s arguments and rejecting them as inconsistent not only with the First Amendment but also principles of academic freedom. The court’s discussion of academic freedom highlights the necessity that the Supreme Court reaffirm and, better yet, clarify the “special relationship” between the First Amendment and academic freedom.

As readers know, I’ve also been maintaining a repository or record at the First Amendment Watch website. There you will find an up-to-date collection of Executive Orders, lawsuits challenging the Orders and related Trump Administration actions, and links to commentary on the many First Amendment-related conflicts that have occurred during Trump 2.0. While there are other repositories and websites that track litigation against the second Trump Administration, mine is unique in that it focuses solely on First Amendment issues. It collects court cases, but also identifies executive documents and commentary by journalists, legal scholars, and others concerning threats to First Amendment freedoms during this extraordinary period.

My intent is to create a real-time record of the free speech and press controversies of this era. I envision the repository as a resource for those who are interested in studying and learning about the free expression controversies of the era, whether in the present or looking back as a matter of history once the Trump era is (finally) over.

Although I encourage you to visit the repository, given all that has happened I wanted to provide a summary of the past eventful year and a half. One of the reasons I decided to take on the repository was to respond to the predictable argument that “every presidency gives rise to First Amendment controversies.” That’s undoubtedly true. But there is no comparison to past presidencies when it comes to the sheer number of threats to First Amendment freedoms, the variety of contexts in which those threats have arisen, and the president’s own direct participation - not only through Executive Orders but also lawsuits against the press, weaponization of the Department of Justice against critics, and incessant jawboning and threatening of individuals and institutions. Let me put it this way: I could not have filled a single chapter, much less an entire book (two if you count my book on the first Trump Administration and the First Amendment), with the First Amendment controversies of the Obama and Biden presidencies combined (or, for that matter, the many administrations that preceded them).

So no, just no. This is not some ordinary period of presidentially-inspired free expression conflicts. If you doubt it, I have receipts.

Whether this is the worst, or one of the worst, eras for First Amendment freedoms is an interesting question, as is whether President Trump is the “worst” president for free speech in the nation’s history. I offer some tentative thoughts on that question below, and intend to return to it at the end of Trump’s second term.

By the Numbers

Let me start some numbers. I cannot be certain I have collected or noticed every lawsuit and certainly cannot begin to collect all the essays, opinion pieces, and other writings on Trump 2.0 and the First Amendment. My repository Word document is currently 132 single-spaced pages (and counting). I am confident I have identified and catalogued the major lawsuits and much of the insightful reporting and commentary.

Executive Orders, Presidential Memoranda, and Fact Sheets

After issuing an Executive Order promising to “end governmental censorship” and and the weaponization of government to suppress speech, guess what President Trump did? He issued fifty seven (57) Executive Orders, Presidential Memoranda, and Fact Sheets that sanction speakers based on expression, target disfavored ideologies and viewpoints, and otherwise threaten expressive freedoms. These documents, which direct federal agencies and officials to take various actions against federal contractors, law firms, museums, libraries, universities, and others, relate to an extraordinary variety of subject matters including the following:

• Foreign Terrorism and National Security

• Immigration

• Sanctioning Law Firms

• Retribution Against Former Government Officials

• Federal Funding and “Diversity, Equity, and Inclusion”

• Federal Funding and “Gender Ideology”

• Gender and Gender Identity

• The Content of K-12 Education

• Museums and Library Displays

• Public Broadcasting

• Political Donations

• University Accreditors

• Prosecutions at the International Criminal Court

• Deployment of Military Forces During Public Protests

• Scientific Research

• Artificial Intelligence

• Prescription Drug Advertising

• Instruction at Service Academies

• Antifa and “Domestic Terrorism”

Lawsuits

These directives, along with other actions taken against international students, protesters, and others, have given rise to at least eighty four (84) lawsuits. Again, these are the ones I have been able to identify so far. That’s about five First Amendment lawsuits per month.

In addition, President Trump has contributed another six (6) lawsuits of his own to the tally, in which he has sued The New York Times, Wall Street Journal, BBC, and other media outlets for defamation and other supposed civil harms. A sitting president suing media is notable and not normal. Prior to Trump’s second term, I believe there had been a grand total of one such lawsuit in the history of the Republic. And the president’s lawsuits have sometimes been accompanied by parallel regulatory proceedings in which defendant media companies were seeking approval for mergers and other benefits from the Executive Branch.

In the Courts

Although they have not won all their cases, plaintiffs have been very successful when they’ve challenged Trump Administration actions and policies on First Amendment grounds. In fact, plaintiffs have lost only a handful of the 84 lawsuits I’ve identified. We need to keep in mind that these court decisions have mostly issued from federal district courts; results may vary on appeal. But there is no question that federal courts have concluded that many of the administration’s actions and policies violate the First Amendment (or likely do so).

Here are just a few highlights (or lowlights from the administration’s perspective):

• All four of the law firms that stood up and challenged Executive Orders targeting them based on prior representations or support for ideas the president does not like have won their cases in district court. (The cases are now on appeal at the U.S. Court of Appeals for the D.C. Circuit).

• The American Bar Association obtained an injunction prohibiting the administration from terminating funding for its projects based on the association’s viewpoints.

• A district court invalidated the administration’s “ideological deportation policy,” which resulted in the arrest and confinement of a group of targeted international students. (Each of the detainees also successfully challenged their confinement.)

• Harvard University successfully challenged the administration’s effort to terminate hundreds of billions of dollars in research funding in retaliation for its expression and to prevent it from enrolling international students for the same reason.

• The American Association of University Professors obtained an injunction against what the court referred to as “a concerted campaign to purge “woke,” “left,” and “socialist” viewpoints from the University of California.

• A court enjoined the Federal Trade Commission from retaliating against Media Matters based on its protected expression.

• Scientists have successfully enjoined termination of research projects and deplatforming papers based on forbidden “gender ideology” and “diversity, equity, and inclusion” content.

• American citizens who assist prosecutors in the International Criminal Court have obtained an injunction forbidding the administration to punish them based on their work.

• A district court ruled that the administration’s decision to terminate funding for PBS and NPR was in retaliation for the stations’ expression.

• Several courts have invalidated provisions in Executive Orders that call for terminating federal funding if contractors and other funding recipients support or participate in “diversity, equity, and inclusion” activities.

• A court granted summary judgment to The New York Times in its challenge to new Pentagon restrictions on publication of non-classified information.

• A court granted an injunction prohibiting the Defense Department from reducing the rank and pay of Senator Mark Kelly in retaliation for his protected expression.

• An instructor at West Point obtained an injunction against restrictions on his teaching and public appearances.

• A district court enjoined the Defense Department from removing books from schools under its jurisdiction based on the ideas and viewpoints contained in the materials (you guessed it - mostly books addressing gender and race).

• Courts enjoined enforcement of an Education Department policy that prohibited teaching about certain forbidden topics or ideas including structural racism.

• A court ruled that ICE violated the First Amendment when it detained individuals without providing notice of their whereabouts, which prevented them from speaking to counsel.

• A court enjoined the federal government from declaring that Anthropic was a “supply chain risk” in retaliation for its public criticism of the administration.

• A court invalidated a Department of Justice stop work order that affected advocacy on behalf of undocumented persons.

• A district court granted summary judgment to federal employees who were compelled by federal agencies to use partisan out-of-office messages.

• Several lower courts have issued injunctions against the use of force by masked and militarized Immigration and Customs Enforcement (ICE) agents during anti-ICE protests.

• The Supreme Court held that the president lacked the legal authority to federalize Illinois National Guard troops to respond to protest-related unrest in Los Angeles.

I have calculated that the Trump Administration has prevailed in less than 10% of the cases filed against it so far. Again, some of the district court decisions are being appealed and the administration may have more success in federal appellate course. But so far, its record in First Amendment cases is extraordinarily bad. In many cases, that is in part owing to the fact that the administration has violated fundamental First Amendment principles - including the requirement that it not target speech based on its content, retaliate against speakers based on protected expression, or coerce speakers and speech intermediaries in ways that censor expression.

The “Worst President For Free Speech”?

When it comes to freedom of speech and press, some past presidents stand out as being particularly awful. For example, John Adams had his political opponents jailed for sedition. Richard Nixon compiled an “enemies list” and wanted to use the powers of his office to target opponents based on their expression. During World War I, Woodrow Wilson set up a propaganda committee to suppress anti-war dissent and, far worse, used the Espionage Act of 1917 and Sedition Act of 1917 to arrest, prosecute, and deport thousands of individuals who dared utter or print ideas that criticized the war effort or the administration.

It may be premature to ask where President Trump stands in historical terms when it comes to freedom of expression. However, a recent essay published by the Foundation for Individual Rights and Expression (FIRE) claimed that Woodrow Wilson is “America’s worst president for free speech.” That prompted me to offer some tentative thoughts on whether Trump may yet surpass Wilson for this dishonor.

It is difficult to decide on a metric or set of criteria for deciding which president has been “the worst” in terms of free speech.

Certainly if we consider the number of individuals jailed and deported for their beliefs during Wilson’s presidency, a strong claim can be made on his behalf. However, the current administration has also jailed speakers solely based on their beliefs or viewpoints. The Trump Administration arrested and confined (sometimes in places far from where their arrests occurred) international students based on their pro-Palestine campus speech. At this moment, Trump is pressing a compliant Justice Department to jail his critics. To be sure, President Trump is not likely to jail as many individuals as did the Wilson Administration. But if imprisoning dissenters is a benchmark for “worst,” his hands are not entirely clean either.

Should the duration of the threat to free speech and press count? Wilson’s campaign against antiwar dissent was serious but relatively short-lived. President Trump has been threatening free speech and press rights for an entire decade. Based on what has occurred so far, we can expect more actions against speakers and institutions based on their expression of disfavored ideas and views.

Should we also consider the scope of the threats? President Wilson focused primarily on wartime dissent. Like President Adams, Wilson believed this speech undermined the war effort. By contrast, as the earlier description shows, Trump’s actions have covered a variety of substantive areas and have impacted speech across boardrooms, laboratories, libraries, museums, broadcass, universities, K-12 schools, international courts, social media, and other contexts. He has used executive orders, executive powers, and termination of federal spending to regulate expression in ways no president ever has.

What about understandings of freedom of speech at the time presidential actions occurred? When President Wilson acted, it was not clear the government was prohibited from punishing sedition and speech that had a tendency to interfere with wartime execution. These were the open issues the Supreme Court addressed in its very first decisions on free speech in 1919. That does not excuse Wilson’s aggressive actions. But understandings of the scope of free speech during World War I were far narrower than under modern doctrine, which did not take shape until the 1950s and 1960s. By contrast, President Trump’s actions have occurred in the face of settled First Amendment doctrines that protect robust criticism of government, prohibit officials from discriminating against speakers based on the content of their expression, ban retaliation against critics, and ban government from using threats and intimidation to coerce speakers. Trump has targeted law firms, universities, and many others despite these settled doctrines. Do his basic disregard and disrespect for First Amendment rights render Trump’s actions “worse” than Wilson’s, at least on that score?

Perhaps it is best to leave such rankings to historians, who can apply their expertise to the context and criteria that might determine who is the “worst president for free speech.” And perhaps, no matter who is doing the ranking, the jury is still out on the Trump presidencies. But I would urge anyone thinking about ranking presidents to consider their entire body of work. On that score, Trump has already made a case for himself. And he still has thirty additional months during which to add to his legacy as possibly the “worst president for free speech.”

The First Amendment and Governmental Proceedings: The “Experience and Logic” Test

A couple of points by way of general background before addressing specific questions about the right to attend public proceedings.

First, despite the fact that the First Amendment contains a Press Clause, the Supreme Court has never developed an independent press doctrine (or assembly or petition doctrines, either, even though the First Amendment also has an Assembly Clause and a Petition Clause). For reasons that I will not go into, the Court has not recognized any rights that the “institutional press” specially possess. Rather, when it has dealt with rights asserted by the media, it has treated such rights as coextensive with the rights of the public at large. In other words, the public and the press enjoy the same rights under the First Amendment.

Second, one of the rights the public and the press do enjoy is the right to gather and disseminate newsworthy information. However, the Court has not developed clear doctrines or boundaries relating to this “newsgathering” right. Like other rights, the Court has said the newsgathering right not absolute. Thus, it does not protect a right to obtain any information that might be of interest to the public. Nor does the right entail access to any and all public buildings or institutions. Governments are entitled to maintain the secrecy and confidentiality of some information, and to restrict access to public institutions when necessary to serve their interests in managing and operating them.

One thing the Supreme Court has recognized as part of this "newsgathering” right is the right to attend certain public proceedings. In a series of cases, the Court has upheld the right of the public and the press to attend criminal trials and related proceedings (e.g., jury selection, pretrial motions hearings). If that right is substantially burdened, the government must justify limiting public attendance by identifying a compelling reason and showing that the restriction is narrowly tailored to further it.

When it recognized the right to attend criminal trials in Richmond Newspapers, Inc. v. Virginia (1980), the Supreme Court observed that such proceedings had been historically open to the public and attended by it and that attendance at criminal trials facilitates “freedom of communication on matters relating to the functioning of government.” There was, the Court said, an “unbroken and uncontradicted history” of public attendance at criminal trials. And attendance by the public - and the press as part of the public or as its surrogate - served to inform the public about matters pertaining to government and to check abuses by litigants and courts.

Owing to these rationales, the doctrine relating to the right to attend public proceedings has been referred to as an “experience and logic” test or sometimes as a “history and function” test. The first part of the test examines the history of public access and the second part considers whether and how press and public access would further the purpose of informing the public about how the government functions and perhaps improve the functioning of the proceeding.

Although the Supreme Court has never applied the test to proceedings other than those relating to criminal trials, lower courts have held that the test supports access to other proceedings including, for example, civil trials and immigration proceedings.

Is There a First Amendment Right to Attend Executions?

In Neal, the Associated Press and other media organizations unsuccessfully challenged an Indiana law that allows only the following people to attend executions: (1) the state prison warden; (2) those assisting in the execution; (3) the prison physician; (4) one other physician; (5) the inmate’s spiritual advisor; (6) the prison chaplain; (7) up to five people invited by the inmate to attend; and (8) up to eight of the victim’s immediate adult family members. Under the law, the only way members of the public or the press can attend an Indiana execution is if the condemned inmate invites them. The media plaintiffs claimed that this restriction violated the First Amendment right of the public to attend executions (it also claimed that the law singled out the press for unfavorable treatment, but this post will focus solely on the right to attend claim.)

Two members of the Seventh Circuit panel ruled against the media plaintiffs on their First Amendment access claim. The majority was not convinced that the Supreme Court’s precedents concerning the public’s right to attend criminal trials extended beyond judicial proceedings. Regarding the “experience and logic” test, it reasoned: “We doubt this framework applies to executions. The Supreme Court has only ever used it to assess whether the public has a right of access to traditional aspects of criminal proceedings.” The majority also noted that its own precedents have only recognized a qualified First Amendment right to access judicial proceedings and related documents. Executions, it reasoned, were different:

An execution does not resemble a court proceeding. It occurs outside the adjudicative process, after the factfinder has determined guilt and the trial court has imposed a sentence and terminated the case. Nor does more open public scrutiny of an execution provide a check on the activities of judges and litigants or foster more accurate fact finding.

In the alternative, even if the “experience and logic” test applied, the majority concluded that it did not justify recognizing a right to attend executions.

Although executions were public proceedings at the Founding, the majority observed, beginning in the 1830s states began to execute prisoners in government buildings such as jails and prisons before small numbers of witnesses rather than in settings where the general public attended. Thus, the majority concluded, history (“experience”) demonstrates a longstanding trend away from executions being open to the general public.

As for “logic,” the majority concluded that press and public attendance at executions would not clearly play a positive role in the functioning of the process. Although the judges conceded that the media plaintiffs made a “compelling point that increased scrutiny may lead to more humane and competently administered executions,” it also agreed with Indiana that “allowing uninvited strangers with no immediate connection to the underlying crime to watch a prisoner die risks offending the dignity of their final moments.” Noting that it “need not reach a firm conclusion on this second consideration” since the plaintiffs had not demonstrated the “experience” prong was satisfied, the majority said no more.

Judge Candace Jackson-Akiwumi dissented. She first concluded that the Supreme Court’s access precedents extended beyond judicial proceedings. Indeed, all federal appeals courts to have addressed the issue have come to that conclusion.

Judge Jackson-Akiwumi also would have held that the media plaintiffs’ access claim was supported by both history and logic.

Regarding history or experience, she observed that even after states moved executions inside prisons and other government buildings, they still allowed both the press and members of the public to attend. Indeed, “the vast majority of the executions conducted in modern times have been witnessed by members of the public or the press.” (Only Indiana and a couple of other states bar the media and public from attending unless the condemned invites them.) The fact that only a few individuals attended, as surrogates for the public at large, did not undermine the claim that there has been a history of public access. (This is essentially the reasoning the Ninth Circuit has applied in recognizing an execution access claim.) Thus, Judge Jackson-Akiwumi concluded, whether one assesses the history of executions at the Founding or during the nineteenth century, there has been an unbroken tradition of public access.

As far as “logic” or the functioning of the process, Judge Jackson-Akiwumi concluded:

Public access to executions promotes accuracy and government accountability. The presence of live, neutral witnesses serves as a check and balance on the government as it ends a person’s life. It helps incentivize government officials to adhere to standards of decency and reveal any issues that occur during an execution. Indeed, without public oversight, states would have little incentive to reveal flaws in the process. Thus, just as the right to access criminal proceedings safeguards a defendant’s right to a fair trial, access to executions protects a condemned person’s right not to be subjected to cruel and unusual punishment.

Relatedly, Judge Jackson-Akiwumi observed, “public access enhances public confidence in the legitimacy of the execution process. Citizens are less likely to harbor distrust and skepticism of a transparent process.”

Indiana justified its practice of limiting access as necessary for the dignity of condemned inmates. State state invoked the Eighth Amendment, which bans “cruel and unusual” punishments. Judge Jackson-Akiwumi countered that the Eighth Amendment does not mandate secrecy during executions. In fact, she wrote, several examples of botched executions “provide support for the Media Coalition's opposite contention: public access is necessary to ensure compliance with the Eighth Amendment's “evolving standards of decency.” The examples, which the judge described in detail over several pages, demonstrate the need to have “neutral observers” attending executions rather than rely on the government’s account or those who happen to be invited by the prisoner or the victim’s family. Judge Jackson-Akiwumi pointed out that it is only because media and the public attend executions in nearly all states that reporters have been able to provide eyewitness accounts of failed attempts to put individuals to death.

WWTSCD?

I always hesitate to predict or, more accurately, guess how the Supreme Court might revolve cases. I will, however, offer the following general observations:

1. The Supreme Court has not been a friend of the press in recent decades. As mentioned, the Court has not developed any specific Press Clause doctrines. Further, as two preeminent press scholars observed in a recent article, “Our data show that the Justices are now less likely to talk about the press than they were in the past, and that, when they do, it is more often in a negative light.” To be sure, the access cases involve not the rights of the institutional media alone but of the press and the public. Still, one must consider that the press, which has the motive and means to challenge laws like Indian’s, has not achieved much success in the Supreme Court. It may be fighting an uphill battle.

2. The Supreme Court’s access-to-government-proceedings precedents are hardly a model of clarity. True, they have recognized the public’s right to attend criminal trials and related proceedings. But the Court has said nothing about proceedings beyond that realm. It has also upheld limits on the press’s and the public’s right to gather information inside prisons, which the majority in Neal thought undermined the plaintiffs’ access claim. While I agree with the dissent in Neal that the rationale for allowing access to criminal trials extends to other proceedings, a conservative Court may be disinclined to rule that states or the federal government must allow for some access to executions. The Court might be concerned that if it recognizes an access right, it will have to decide access claims in the context of many other types of governmental proceedings (and perhaps also claims concerning access to information about lethal injection protocols). As other cases suggest, the Court might also be inclined to defer to governmental authorities regarding appropriate prison policy for executions.

3. Assuming it does apply the “experience and logic” test, the Court would face difficult questions regarding the nature of “history” or “experience” that will suffice to trigger a First Amendment claim. As the Court has noted, access to criminal trials was supported by “an unbroken, uncontradicted history.” That might mean only a comparable history of public access would suffice. Does the mere fact that executions were removed from the public square during the Nineteenth Century upset or break the historical tradition? Or is it enough that states still allowed some members of the press and public to attend? If the Court is going to parse historical eras, it may need to decide whether the most relevant history is that of the Founding Era (in which case public access to executions was common) or the history closer to the ratification of the Fourteenth Amendment (the vehicle for applying the First Amendment to the states). As in other areas, including the Second Amendment, historical analysis may turn out to be key to any decision. And as in other areas, it is not clear what the Court will do with the history it examines.

4. The “logic” of allowing at least some public access seems to favor press and public attendance at executions. Even if the Court were to make it this far, however, it may agree with the majority in Neal that public access may undermine the process, or at least that a state could so conclude. Transparency and accountability are important interests, the Court might reason, but those interests can be adequately served by relying on the other witnesses to the execution.

What was the offending material? Behold the following pyramid:

As indicated, the pyramid plots various material (slogans, statements, symbols, etc.) on a pyramid based on where they might fall in terms of “overt white supremacy” and “covert white supremacy.” “Make America Great Again” appears on the left hand side, near the top of the line denoting “covert” white supremacy. It appears outside the pyramid near entries for “Confederate Flags,” “School-to-Prison Pipeline,” “Denial of White Privilege,” and “Denial of Racism.” Within the pyramid are entries like “Hiring Discrimination” and “Police Brutality.” (The instructor has said the items do not appear hierarchically).

According to public reports, “A student complained in September to [Republican State Senator Jim Banks], who then told the university that the student was uncomfortable in the graduate-level course.” Hmm. So here we have not some lefty “snowflake” but apparently a conservative student who objected to how a political movement/party was characterized or discussed in a university classroom. As is becoming a pattern in such cases, (1) a student contacted a state elected official rather than the administration, (2) the politician jawboned the university to get rid of the instructor, and (3) the university terminated the instructor after a “careful review” of her work.

According to The New York Times:

Ms. Adams was investigated under a controversial law passed in Indiana meant to further “intellectual diversity” and prevent students from being subjected to political views unrelated to the course. Professors and academic freedom groups have decried the law, saying it chills free-flowing conversations in classrooms and amounts to state-sponsored censorship.

The Indiana law referred to requires faculty at state colleges and universities to “foster a culture of free inquiry, free expression and intellectual diversity” and to expose students to “a variety of political or ideological frameworks” to qualify for tenure or promotion. It also requires that universities review tenured faculty every five years and take disciplinary action against them, including potential termination, if they are deemed unlikely to encourage intellectual diversity and expose students to opposing viewpoints.

So, just to keep the thread straight here:

A university instructor was “investigated” pursuant to a state law that purports to further “intellectual diversity” after she displayed a pyramid on which “MAGA” appeared in materials identifying the difference between “covert” and “overt” forms of racism, in a course (that the complaining student registered for) that was entitled, “Diversity, Human Rights and Social Justice.”

According to Ms. Adams, she has been regularly teaching the same material since she joined the School of Social Work as an instructor in 2020. She told the N.Y. Times that the topic of racism frequently surfaces in social work.

The Indiana law, as enforced in this case and others, opens a Pandora’s box that threatens academic freedom and freedom of speech in the classroom. Indeed, it is difficult to imagine a system that would chill classroom instruction to a greater degree than one in which state law mandates a form of “intellectual diversity” in classroom materials and instruction and backs it up with loss of tenure and other sanctions for supposed violations of this edict.

• Who will dare discuss controversial topics, including ones relating to politics and policy (maybe even including the Indiana law itself) if their supposed lack of “balance” in the presentation could get them fired?

• How, exactly, do laws and policies that permit discussion of some ideas and not others foster a free exchange of ideas and free debate?

Further, no one is precluded by mere exposure to the idea that MAGA just might be or allow for covert racism from objecting to that characterization and providing evidence or arguments to teh contrary. Presumably, the point of presenting the pyramid is to generate some discussion and debate. Are students, who are intrepid enough to reach out to state senators, unable to participate in that process? If I teach in my constitutional law course that the Supreme Court’s broad grant of legal immunity to ex-presidents is a “step toward tyranny,” can I not reasonably expect students to argue to the contrary that presidents need such immunity to perform their constitutional duties? Must I present both arguments or stand accused of not fostering “intellectual diversity”? Who determines whether my “bias” is a fireable offense, and how?

Conservative officials purport to be facilitating intellectual diversity. But that principle cannot mean suppressing speech they do not like or that offends some students or state officials. Unfortunately, this has become the new normal on many university campuses. Combing through course syllabi or enlisting watchdog groups to do so, terminating instructors for teaching disfavored materials, and firing professors for expressive their political and other views is not a plan for creating a space for discussion across intellectual differences. What it is creating instead is a reticence to touch certain sensitive topics or teach in ways that might offend student sensibilities. It has also created a danger that the censor will investigate and disciple faculty only when they cross certain ideological lines.

Academic freedom and the First Amendment are not absolutes. They do not authorize faculty to discuss material that is not germane to their course, for example, or protect faculty who routinely use the classroom as a political soapbox. But presenting theories and ideas about racism in a diversity and social justice course, including the uncomfortable idea that a dominant political movement (or part of it) is or may be infected with covert racism, falls squarely within these protections.

According to PEN America, “Since 2021, at least 23 states have enacted at least one bill or policy that censors classroom teaching at colleges — with these laws impacting more than 50% of U.S. students, the organization stated.” The politicians currently imposing a new wave of classroom and other ideological litmus tests either do not understand the conditions necessary for free academic inquiry, or care only about suppressing ideas they do not like. They have a duty to educate themselves about and preserve the former, and are prohibited by the First Amendment from doing the latter. MAGA does not get a pass in classrooms, which the Supreme Court has described as “peculiarly the marketplace of ideas.”

One final point. There is a common trope used in discussion of this new trend of censorship by the right. It goes something like, “past censorship does not justify future censorship.” The statement suffers from a false equivalency problem. “Past censorship” in this context often refers to students shouting down speakers, for example, or their “intolerance” for racist, homophobic, and other speech. But that is a far cry, in First Amendment and academic freedom terms, from a state legislature controlling curricular and classroom content and requiring universities to subject faculty to post-tenure termination if they fail to meet some vague notion of “balance” or “intellectual diversity.” We should be intellectually honest about what “censorship” means in these debates. The First Amendment’s principal concern is with the exercise of state power to stifle free debate.

“Jawboning”

Most speech restrictions and suppression occur as a result of formal lawmaking, regulation, or policymaking. These formal speech restrictions are the product of legislative and other processes that constrain government’s power to censor. As Professor Genevieve Lakier noted in a recently published article:

When government officials act formally . . . they are ordinarily subject to all kinds of transparency mandates. Laws need to be published; regulations are subject to extensive notice and comment requirements under the Administrative Procedure Act; trials are required by the Constitution to be open to public view.”

Jawboning is different. It occupies a space outside the formal system of speech regulation. Unlike the earlier FCC example, jawboning typically occurs behind the scenes, for example through phone calls, letters, and notices. As a result, jawboning lacks the transparency and democratic accountability of formal speech regulation.

Informal pressure campaigns are often successful, particularly when they target speech distributors or intermediaries like social media platforms or broadcast companies. These intermediaries (and many speakers) have financial, regulatory, and other incentives to capitulate to governmental pressure. Thus, jawboning may occur without the speaker whose post or other expression is being suppressed even knowing about it. If it is called out, the intermediary will often assert that they removed the speech for reasons unrelated to governmental coercion. Officials who engage in jawboning may leave little evidence behind, making informal censorship more difficult to detect. All of this complicates efforts to prevent jawboning campaigns or obtain remedies for First Amendment violations.

From the government’s perspective, these are all advantages of using informal pressure tactics outside formal regulatory processes. Not surprisingly, jawboning has been around for a long time. Governments at all levels, whether controlled by Democrats or Republicans, have used it to informally coerce speakers. However, concerns about informal coercion have recently increased. This is partly the result of the growing influence of social media platforms on access to information. Aggressive uses of executive power to pressure speakers during the second Trump presidency have also highlighted problems relating to informal censorship.

More than sixty years ago, in Bantam Books. Inc. v. Sullivan (1963), the Supreme Court condemned jawboning as an “informal system of censorship” that violates the First Amendment. It held that a state government commission violated the First Amendment when it pressured bookstores to remove material by blacklisting it and implying that legal action would follow if they did not comply. The Court concluded that when government officials intentionally use their power to indirectly censor expression, their actions violate the First Amendment. Not every communication by a government official to a speaker or speech distributor violates the rule. Governments can communicate their views and may seek to persuade speakers and businesses. However, Bantam Books held that when government efforts to persuade cross the line into coercion they violate the First Amendment.

In National Rifle Association of America v. Vullo (2023), the Court unanimously reaffirmed that informal censorship campaigns violate the First Amendment. This time it was New York state financial regulators who pressured insurance companies to cut ties with the National Rifle Association. The Court held that held that New York officials violated the First Amendment when they intentionally used the threat of regulatory sanctions to pressure the insurance companies to break ties with the NRA. It affirmed “that a government official cannot do indirectly what she is barred from doing directly.”

Bantam Books and Vullo establish a strong prophylactic rule against certain kinds of informal censorship. However, application of the rule depends on the facts in each case. Only pressure that amounts to coercion is prohibited. Whether that line has been crossed depends in part on who is doing the cajoling and what kinds of implied threats they are making. The question is whether the target of the entreaties would reasonably conclude sanctions will follow a decision not to capitulate.

The JAWBONE Act

The JAWBONE Act aims to facilitate enforcement of the anti-jawboning rule adopted in Bantam Books and Vullo. It does so in two primary ways:

1. Reporting and Transparency. The Act requires federal agencies to submit certain communications with social media companies, AI companies, and broadcasters to a designated portal. These reports will consist of detailed public summaries of the interactions between agency officials and social media companies, broadcasters, and AI platforms. Congress will have full access to the reports in the portal.

2. Cause of Action/Remedy. The JAWBONE Act creates a cause of action against any government agency or employee that jawbones companies involved in social media, AI, or broadcasting, regardless of whether the jawboning succeeds. The Act also allows plaintiffs to obtain money damages and reasonable attorney fees.

The Act’s provisions are a welcome, if limited, response to the problem of informal censorship. They respond to aforementioned difficulties related to proving that jawboning occurred. Informal coercion is often done behind closed doors and cloaked in secrecy. The Act imposes reporting requirements that shine some needed sunlight on what are often informal pressure campaigns. This will provide speakers with important information about why their expression was removed or suppressed. Information concerning the substance and nature of the communications between government agencies and private businesses will help litigants and courts enforce the anti-jawboning rule.

The Act also helps solve a remedial problem. Absent a cause of action for damages, plaintiffs in jawboning cases are limited to seeking injunctive relied. Even if they are successful convincing a court to enjoin agency officials from continuing to jawbone, the injunction will only apply to current officials. Creating a cause of action for damages helps keep viable jawboning cases alive. (As I have argued elsewhere, Congress can and should create similar causes of action against federal officials that violate First Amendment rights in other contexts.)

The JAWBONE Act is not a panacea. It applies only to federal officials and agencies. State executive and legislative officials, who also engage in jawboning campaigns, are not covered. The Act does not impose any reporting requirements on private businesses. If agencies do not report their communications, there will be no evidence in the portal that they occurred. The Act should impose reporting requirements on the targets of jawboning as well. This would lead to greater transparency and check agency compliance with the reporting requirement. The Act might also have included restrictions on agencies’ discretionary authority, which is often the source of their power to threaten and cajole speakers and speech distributors.

The fact that a bipartisan proposal to curtail informal censorship is on the table is a positive development. The JAWBONE Act will not address all pernicious forms of governmental coercion that results in censorship. However, it limits a form of censorship that far too often evades legal and constitutional limits.

“True Threats” - Again

Alas, last week a federal judge enjoined the National Park Service from taking action against a protest group that has engaged in a longstanding demonstration urging that President Trump be impeached and removed based on its display of a flag with the legend “8647.” If those numbers seem familiar, that’s because prosecutors in North Carolina are pursuing criminal charges against former FBI Director James Comey for posting a picture of seashells (!) with the same numbers. As I explained in a prior post, that case is about as weak as they come. “True threats” are not protected speech, but Comey’s post does not come close to reckless communication of a “serious” threat to end the president’s life.

If possible, the recent Park Service demand that protesters remove their 8647 sign rests on even weaker ground. The demand occurred after Secret Service officers arrived on site, claiming they were responding to a complaint about the content of the flag. At one point, a Secret Service Officer read a protest volunteer her Miranda rights - even though she was not under arrest or in custody. Sending a not-so-subtle message, the Secret Service then opened an investigation into the volunteer on the ground she was a “potential threat.”

Two weeks later, after the Secret Service shared with the Park Service that it had opened an investigation of the protest volunteer, four Park Service cars arrived at the protest site. The show of force occurred after plaintiffs had filed suit to enjoin NPS from revoking or denying a protest permit based on the flag (and other displays, as discussed below). After citing the wrong provision of federal law (which does prohibit making threats against the president), the officers ordered that the 8647 flag be taken down. They also promised to return if the flag was displayed again.

The district court had little trouble concluding that the 8647 flag was not a “true threat.” As for the legend on the flag, here is how the court described its meaning:

The Court starts with the premise that the word “86” is a slang term with no single meaning. According to Merriam-Webster, “Eighty-six is slang meaning ‘to throw out,’ ‘to get 12 rid of,’ or ‘to refuse service to.’” The phrase “comes from 1930s soda-counter slang meaning that an item was sold out[,]” and may have been used because it rhymes with “nix.” It was first used as a noun to refer “to an item . . . that had been sold out,” but by the 1950s, the term was used as a verb, at first meaning “‘to refuse to serve a customer,’ . . . later meaning “‘to get rid of; to throw out,’” and still later coming to mean “‘shut out’ or ‘rejected.’” Merriam-Webster further notes that a recent extension of these meanings has included “‘to kill,’” although the dictionary declines to endorse that meaning “due to its relative recency and sparseness of use.” According to Merriam-Webster, “[t]he most common meaning of eighty-six encountered today is the one that is closer to its service industry roots.”

As the court also noted, whether a message is a true threat depends to a significant degree on the context in which it is communicated. The court addressed the context in which the flag was displayed:

To start, the flag itself contains no symbols of violence; it is red, white, and blue, and is simply adorned with white stars. It contains no knives, skulls, nooses, or other threatening symbols. Even more to the point, the flag was displayed outside the courthouse, as part of an ongoing demonstration seeking President Trump’s impeachment and removal from office. In a video submitted by Plaintiff, the flag can be seen hanging from one side of Plaintiff’s tent, surrounded by not one, but four signs that read “IMPEACH. CONVICT. REMOVE.” Yet another sign merely reads: “IMPEACH.” Id. In short, the surrounding signage urged Congress “to throw out” the President.

In the specific context of a 24/7 permitted protest calling for the impeachment and removal of a sitting president, 8647 is obviously core political speech. Its only plausible meaning in that context is that the president should be removed from office, not killed. At worst, the flag was a form of political hyperbole. But political rhetoric of this kind is protected speech. As the unfortunate protest volunteer who found herself in the middle of this tempest said to the Secret Service Officers, “I want Trump to live forever,” adding that she also wanted him to “rot in jail.”

The court’s conclusion that the message on the flag is not a “true threat” does not minimize or deny the problem of politically motivated violence. But as the judge observed, “the enormity of that problem does not change the meaning of Plaintiff’s speech, which by any reasonable measure merely advocated for the President’s impeachment and removal from office—that is, “to throw [him] out.”

Incitement

In response to the plaintiffs’ motion for a preliminary injunction, government lawyers asserted that the 8647 flag constitutes unprotected “incitement.” As the Supreme Court has defined that category or class of unprotected speech, it is narrowly limited to communications that the speaker intends to incite others to commit imminent unlawful action when that action is likely to occur.

That alternative theory fared no better than the “true threats” argument. As the court noted, there was no evidence the protesters intended to encourage anyone to commit unlawful acts or that, even if they had, those acts would occur imminently (if likely to occur at all). The Secret Service knew the flag’s content but “allowed” it to remain for two weeks before demanding it be taken down. That makes no sense if it was indeed an intentional call to imminently murder President Trump. Given its common meaning, the incitement theory does not scan.

Obscenity

But wait, there’s more. Although the district court’s decision only addressed the 8647 flag, the Park Service took issue with other signs:

On February 24, 2026, in response to reporting “that the Justice Department was withholding more than 50 pages of FBI interviews with a woman who had accused Donald Trump of sexually abusing her when she was a minor,” Plaintiff began to display two new signs at the demonstration. One sign read: “TRUMP RAPED LITTLE GIRLS.” The other read: “KIDS, IF YOUR PARENTS ARE MAGA, THEY LOVE CHILD RAPISTS.”

An NPS official sent protest organizers the following email:

Based on the photographic evidence from earlier today, the [Plaintiff’s] first amendment permit is displaying unprotected obscenity in signs or media. This is not protected by the first amendment and is therefore prohibited and a violation of law.

When the protest organizers inquired about the agency’s obscenity determination, NPS supervisors doubled down:

To clarify, the material displayed under your permit has been evaluated under all appropriate standards and tests and is deemed unprotected obscenity, which the Court has established is not protected by the First Amendment. This determination is supported by federal law which prohibits obscene material on federal property.

Obscenity, like true threats and incitement, is not protected by the First Amendment. But under the prevailing standard in Miller v. California (1973), which the agency obviously did not apply, material is obscene only if it meets the following standard:

1. Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);

2. Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and

3. Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.

NPS will ultimately lost this battle as well. In general, obscene materials consist of hard core pornography. As Miller states, they must be erotic and appeal to a “prurient” interest in sex. They must depict or describe sexual conduct in specific terms. And they must have no political or other value. None of that is true of the content NPS determined was “obscene.”

******

During the second Trump presidency, NPS has a poor recent track record in terms of regulating political protests and other expression in places it operates and manages. The agency summarily revoked a permit for and dismantled a Lafayette Park Peace Vigil which had existed for more than four decades. The day after it had been erected pursuant to a valid permit, a statue that depicted President Trump and Jeffrey Epstein holding hands and appearing to be dancing with each other, titled “Best Friends Forever,” was knocked down and damaged by Park Police personnel.

This is unacceptable for the steward of vitally important protest venues. One problem may be that the agency has put political appointees in charge of the United States Park Police. Another is an apparent lack of knowledge of, or appreciation for, the nation’s commitment to “uninhibited, robust, and wide open” public discourse (except, of course, when it is the president or his allies who engage in vituperative attacks or communicate veiled threats of violence). It certainly does not appear from the agency’s correspondence with protesters or its actions that the agency understands basic First Amendment doctrines and principles. The rising influence of political appointees at the agency, along with the administration’s loss of competent counsel, is having a serious impact on the right to engage in political protests.

The Trump Administration has proposed that federal agencies be able to require public employees to sign nondisclosure agreements (NDAs). Given the content of current federal laws pertaining to disclosure of confidential information, this is a solution in search of a problem. If adopted, the proposal will chill valuable expression about the operations of government - indeed, that would appear to be the point. As has been typical of Trump Administration initiatives affecting speech and the flow of information, the breadth of the proposed agreement suggests that its actual purpose is to chill reporting that is critical of the administration and suppress information that exposes official wrongdoing.

The Proposed NDA

According to reporting in The New York Times:

The Trump administration wants to roll out a uniform nondisclosure agreement across the federal government that would bar employees from sharing internal government information, citing the need to stop leaks to media organizations.

Th proposal purports to leave to each agency the decision whether to use the NDA. However, based on what we’ve seen so far from executive agencies during the second Trump presidency, there is no reason to expect any agency to decline to do so.

As the proposal states, “Federal employees are subject to longstanding legal requirements to safeguard nonpublic information obtained through their official duties.” Indeed, federal laws including the Public Records Act and the Privacy Act apply to and limit disclosure of confidential, proprietary, and other information by agency employees.

Nevertheless, the Office of Personnel Management (OPM), which has proposed the NDA, claims that “internal government materials not intended for public release, such as pre-decisional documents and interagency comments exchanged during internal coordination processes,” have been disclosed without authorization. It asserts that these disclosures, which pertained to policies regarding federal workers, the Venezuela operation that ended in the capture of Maduro, and ICE agents, “risk chilling candid interagency feedback, disrupting orderly decision-making, and weakening trust within and among Federal agencies.”

OPM wants to define “Confidential Government Information” subject to the terms of the NDA as:

all non-public, confidential, or proprietary information, to include, but not be limited to, information relating to internal agency operations, personnel matters, procurement processes, or any sensitive, pre-decisional or deliberative material that is not currently publicly available and should not be disclosed under applicable law.

The proposal acknowledges that the NDA cannot restrict employees’ speech beyond the limits already codified in federal laws. The proposed rule emphasizes that “the proposed NDA does not create new substantive restrictions on employee speech or disclosure rights.” Which leads one to wonder what the administration intends to gain by having employees sign an NDA. Presumably, public employees who work with confidential, secret, classified, and proprietary information are aware of their obligations under federal law. And any sanctions for violations of these legal obligations would result from the laws themselves and not the NDA.

The second Trump presidency has been defined, in part, by the administration’s war on the federal workforce. This campaign started with DOGE and has continued unabated well after Elon Musk departed Washington. Simply put, the administration has made federal service as unattractive as humanly possible. Apparently still clinging to the conspiratorial view that federal employees are part of some “deep state” conspiracy, or are by definition disloyal to the president, the administration wants to intimidate them into silence. That is how citizen Trump used NDAs: to suppress unflattering or compromising information.

One might ask what harm there is in imposing a redundant NDA on federal employees. Beyond striking yet another blow to their low morale, actual whistleblowers in possession of “non-public” information, including information relating to government mismanagement or (wait for it) waste, fraud and abuse, may think twice before disclosing or discussion it - even if disclosure was not a violation of federal laws. The proposed NDA warns that breaking the agreement could result in discipline, firing, and unspecified “civil or criminal penalties.” But there is no general criminal prohibition against sharing unclassified information.

The First Amendment and Public Employee Speech

As I’ve explained, government employees do not sign away their First Amendment rights by virtue of their service. Communications made “pursuant to official duties” receive no protection. However, the executive branch cannot impose a blanket ban on the sharing of unclassified or “non-public” information. Employees retain a First Amendment right to speak out, as citizens, on matters of public concern. The proposed NDA even purports to bing employees even after the exit federal service. That is a blatant First Amendment violation. Governments cannot enforce gag orders against former employees.

Perhaps this is a result of sloppy drafting. Or perhaps it does not matter to the administration that the terms violate the First Amendment. Even a blatantly invalid NDA will serve the purpose of chilling what would otherwise be protected disclosures. If no one challenges the NDA, it will remain in effect. And if there are challenges, they will take months or years for courts to adjudicate. Based on how the administration (including the lawyers representing it) has operated to this point, either explanation is plausible.

It is important to understand that the proposed NDA strikes at the heart of expression that is vitally important to self-government. The Supreme Court has consistently stated that public employees occupy a unique position to expose government misconduct and that their speech has “special value.” This is part of the basis for the aforementioned First Amendment protections afforded to public employee speech.

As the Court has explained:

Speech by citizens on matters of public concern lies at the heart of the First Amendment, which was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This remains true when speech concerns information related to or learned through public employment. After all, public employees do not renounce their citizenship when they accept employment, and this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights. There is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees. For government employees are often in the best position to know what ails the agencies for which they work. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.

In other words, the speech that may be chilled by OPM’s proposed NDA is essential to informed public debate and government accountability. For similar reasons, Congress and the Supreme Court have generally taken an expansive view of protections afforded to public employee whistleblowers.

It is not surprising that an administration that rejects the notion it should be held accountable to the public, or ought to operate with transparency, would seek to suppress the disclosure of “non-public” information. If nothing else, it has been consistent - and consistently wrong - about the values of free speech.

Comments on the NDA proposal will soon be open. Here’s hoping OPM abandons this awful idea.

Censoring Academic Expression

In Bakken v. U.S Military Academy (SDNY, May 26, 2026), a federal district court enjoined two West Point (the Academy) policies restricting the expression of civilian faculty. According to his lawsuit against the Academy and several of its administrators, Professor Tim Bakken is the longest-serving law professor in the military academy’s history. Bakken has taught at West Point since 2000. He also happens to be the author of a 2020 book, “The Cost of Loyalty: Dishonesty, Hubris and Failure in the U.S. Military.” Professor Bakken sued the Academy, saying that two of its policies violate the First Amendment. He also seeks to litigate on behalf of a class of civilian professors subject to the policies.

The policies, which I describe below, are rooted in an Executive Order signed by President Trump early in his second term. The Order prohibits the Academy and other military academic institutions from “promoting, advancing, or otherwise inculcating” certain “un-American, divisive, discriminatory, radical, extremist, and irrational theories,” including “that America’s founding documents are racist or sexist,” and required them “to teach that America and its founding documents remain the most powerful force for good in human history.” How’s that for being open to different points of view?

Bakken challenged two policies adopted by the Academy to implement the Executive Order. The district court granted Bakken’s motion for a preliminary injunction with regard to both.

Academic Engagement Policy

Under the Academic Engagement Policy, Bakken and other military academy faculty must obtain approval from department heads “for engagements with any audience external to USMA that are within faculty members’ disciplinary areas of expertise while on duty or when using any USMA affiliation or branding.” The policy states that examples of such engagements “include (but are not limited to) journal publications, conference presentations, media interviews, podcasts, opinion editorials, blog posts, social media posts, etc.” The policy requires that faculty seek and obtain approval for such engagements in advance.

Professor Bakken alleged that owing to the Academic Engagement Policy, he refrained from speaking and writing, either independently or as part of his job, on issues he otherwise would have pursued, including the state of academic freedom, prosecutorial ethics, and the legality of U.S. attacks on boats allegedly transporting drugs.

Public employees do not lose their First Amendment rights by virtue of their employment. That is true even if they are civilian faculty at military academies. When they speak as citizens on matters of public concern, an employer can only sanction their speech if it interferes with the the efficient delivery of services.

The district court held that Bakken’s restricted or restrained speech by a citizen that “addresses matters of public concern.” Conducting the necessary balancing of interests, the court rejected the Academy’s argument that courts must defer to military judgments and concerns:

Plaintiff’s challenge to [The Academic Engagement Policy] is different from the typical cases where deference has been afforded because it does not turn on military judgment. [The policy] is an academic policy that applies to military and civilian professors alike and regardless of whether the affected speech concerns subjects such as military history or warfare tactics, or English or mathematics. And Plaintiff seeks to enjoin enforcement against only himself and other civilian faculty members, not active-duty faculty. Additionally, [the policy] cannot seriously be said to influence actual military operations in the field or even the training for military operations that might occur at West Point. The connection between the speech of educators of cadets and any effect on military operations is far more attenuated than in the contexts where great deference has been shown to military judgments.

Indeed, the court concluded that the purported benefits of the policy “appear to be a pretext.” The court concluded the policy was “an effort to channel speech to conform to the President’s liking and to prevent dissenting views from entering the marketplace of ideas”:

At worst, the Academic Engagement Policy reflects an effort to control the content of USMA professors’ speech in a way that censors their academic writing and research where the Government disagrees with its message and seeks to align their scholarship with the preferred views of the current administration. The First Amendment does not tolerate restrictions where the government is regulating speech because of its own hostility toward the targeted messages. If the First Amendment prohibits anything, it is the official suppression of ideas.

Classroom Directive

Another policy, the Classroom Directive, instructed faculty not to share their personal opinions with cadets. An administrators stated that while faculty are teaching cadets in the classroom, if they “start to feel that perhaps maybe you’re starting to advocate for a particular position or ideology,” or “when you’re taking a position where you’re like why we believe this so I’ll help the Cadets believe this way,” then the faculty are “wrong” because “[t]hat’s not what we do. [Cadets] don’t need to know what I believe.

Professor Bakken understood the Classroom Directive to be a direct order from a superior and a ban on expressing his personal opinions or views while instructing students on legal issues, such as sharing “whether a particular majority or dissenting opinion is persuasive and why.” He also understood guidance from another administrator to be a “prohibition on my giving my ‘opinions.’”

Bakken alleged that before the issuance of the Classroom Directive, he routinely shared his views on the topics that he taught in class, calling such speech “essential to the educational process in the university setting in that it prompts further discussion and debate, fosters critical thinking skills, and teaches respect for differing viewpoints.” He no longer shares his opinion or views on legal topics, including when asked directly by students.

The district court agreed that the policy violated the First Amendment rights of civilian faculty at the Acdemy:

Like scholarly research, a professor’s speech in class is speech on a matter of public concern, and Plaintiff’s interest in being able to express an opinion while instructing students, as well as the students’ interest in engaging with that opinion, is therefore great. A blanket ban on professors’ sharing of their views on the subjects of instruction is a blunt force instrument that cannot be said to implicate the prima business of armies and navies to fight or be ready to fight wars should the occasion arise. . . . [T]he Classroom Directive runs afoul of the First Amendment’s guarantee to tolerate neither laws nor other means of coercion, persuasion or intimidation that cast a pall of orthodoxy over the free exchange of ideas in the classroom.

Responding indirectly to President Trump’s Executive Order, which animated the policy, the court observed:

For genuine strength and leadership to result, cadets must be exposed to a variety of viewpoints and trained to think critically about them. West Point cadets are already, by definition, smart, tough and patriotic. They are not snowflakes who will somehow be harmed by learning about controversial issues or competing viewpoints. They will not somehow be weakened in their future defense of our country if their classroom discussions are robust and open.

Grant Funding and Viewpoint Discrimination

In the second case, Thakur v. Trump (9th Cir., May 26, 2026), six University of California researchers who applied for and received multi-year research grants from three federal agencies, challenged decisions by those agencies to cancel their funding.

The form letters terminating funding stated generally that that each terminated grant award “no longer effectuates the program goals or agency priorities” and that the “objectives of the award are no longer consistent with EPA funding priorities.” Plaintiffs alleged that these terminations resulted from the agencies’ implementation of at least eight Executive Orders the President issued in January and February of 2025. In general, the Orders direct agencies to eliminate diversity, equity, and inclusion (DEI) and diversity, equity, inclusion, and accessibility (DEIA) policies and initiatives from all aspects of the federal government. The Orders singled out DEI, DEIA, and “environmental justice” programs, services, or activities. One of the Orders also directed that “[f]ederal funds shall not be used to promote gender ideology.”

A panel of judges on the Ninth Circuit held that the scholar plaintiffs and the class they seek to represent are likely to succeed on the merits of their First Amendment claim.

As the court observed, “the First Amendment prohibits the government from using its power “to punish or suppress disfavored expression.” Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 188 (2024) (citing Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 830 (1995)).” Because viewpoint discrimination is uniquely harmful to a free and democratic society, the court observed, the government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale.

When it provides federal funding, the government can define the scope of a subsidy program. The government argued that termination of research grants reflects its decision to stop funding “DEI programs.” Plaintiffs respond that “the government has not merely exercised its power to choose the programs it funds but has instead terminated individual grants in existing programs based on the perceived viewpoints of individual speakers.”

The court agreed with Plaintiffs:

As an initial matter, the government does not dispute that the agencies terminated the grants at issue because of the recipients’ perceived expression of DEI, DEIA, or environmental justice viewpoints. Nor could it. First, the terms DEI, DEIA, and environmental justice are inherently directional; they reflect perspectives, rather than neutral topics. They convey the viewpoint that the exclusion of historically disadvantaged groups is undesirable. Second, the district court expressly found that the purpose of the grant terminations was to suppress the particular point of view the grant recipients promoted.

As the court observed, the federal government cannot “leverage its power to award subsidies . . . into a penalty on disfavored viewpoints.” Indeed, the Supreme Court has repeatedly affirmed “the requirement of viewpoint neutrality in the Government’s provision of financial benefits.”

Basic Principles and Doctrines

Like may others, the two recent court decisions invalidate policies originating in Executive Orders that discriminate against or seek to suppress certain ideas or viewpoints. It is First Amendment bedrock that these efforts are invalid attempts to impose governmental orthodoxies regarding race, gender, and other issues.

The Trump Administration may win some of these cases in appellate courts on technical grounds - for example, that the plaintiffs lacked standing to sue or the courts do not have jurisdiction to hear the matter. But on the merits, these are easy cases. President Trump’s Executive Orders are not subtle about their purpose to punish or chill disfavored ideas. The First Amendment forbids precisely that kind of governmental action.

As I’ve written before, it seems implausible the government does not understand basic free speech doctrine (that Trump himself does not is less implausible). The administration will continue to defend presidential edicts and policies arising from them. But “ending censorship” is clearly not the goal. Rather, the purpose seems to be to see how far the government can go in terms of obtaining compliance with clearly unlawful edicts. When and if an interested party sues, powerful - and fundamental - First Amendment doctrines and principles support their challenges.