Partway through his second inaugural address on January 20, Donald Trump started listing the executive orders he planned to sign that day. Among others, he said he would “declare a national emergency at our southern border,” designate “cartels as foreign terrorist organizations,” put an end to the Green New Deal, start a full “overhaul of our trade system,” set up a “brand-new Department of Government Efficiency,” and reverse “years and years of illegal and unconstitutional federal efforts to restrict free _expression_” by signing an order “to immediately stop all government censorship and bring back free speech to America.”
Listening to that last statement, I was mystified. There have certainly been periods in American history when the federal government made substantial efforts to limit freedom of _expression_. But nothing of the sort had taken place in the years preceding Trump’s election. What could he have been talking about?
The executive order, which Trump signed that afternoon, offered a clue. “Over the last 4 years,” it asserted, “the previous administration trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.” It is a familiar complaint. Right-wing groups have for years been attacking social media companies for their content moderation practices, which are generally intended to limit the dissemination of hate speech and other offensive material, though whether or not the companies in question do so under pressure from the government is debatable.
Now, Trump’s executive order promised, those days were over: the US would “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.” In light of subsequent developments, this line, which suggests that the order applies solely to citizens, seems significant. The First Amendment limits what the government may do regardless of the legal status of the beneficiaries—citizens and non-citizens alike have the right to express themselves freely.
But the order did include a sentence with which I would heartily agree: “Government censorship,” it declared, “is intolerable in a free society.” Trump’s conduct since January 20 with respect to freedom of _expression_ has indeed been intolerable. There has never been an attack on free _expression_ quite like it.
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The unprecedented nature of Trump’s attack on free _expression_ is difficult to understand except in contrast to earlier periods in which the values embodied in the First Amendment have been under assault. Probably the most concerted attack on freedom of speech in American history came in 1917 and 1918 against those who opposed American entry into World War I and conscription for military service. Under President Woodrow Wilson, the federal government enacted the Espionage Act of 1917 and amendments to that law known as the Sedition Act of 1918; state governments adopted local counterparts. Despite the 1917 act’s name, hardly any of the people prosecuted under these laws were accused of spying; they were usually prosecuted for speaking at protests or publishing articles. According to the contemporaneous work of the legal scholar and Harvard Law Professor Zechariah Chafee, about two thousand prosecutions for speech took place during this period, resulting in prison sentences of five or ten or even twenty years. Most of the convictions were upheld unanimously on appeal. There had, at that point, never been a US Supreme Court decision protecting freedom of speech under the First Amendment. As Adam Hochschild has written in his powerful book American Midnight: The Great War, a Violent Peace, and Democracy’s Forgotten Crisis (2022), it was also a period in which organizations like the American Protective League—a group similar to the Ku Klux Klan in its composition and methods—led a great many violent attacks on antiwar activists, even the most horrifying of which almost never resulted in criminal prosecutions.
During the war an organization called the American Union Against Militarism established a Civil Liberties Bureau to bring court challenges against some of the punitive measures that the government had used to target the war’s opponents. That effort was led by a New York lawyer, Crystal Eastman, and a social worker from St. Louis, Roger Baldwin, who himself was sentenced to a year in prison for resisting the draft. The next few years saw the continuation of severe repression, with the Bolshevik revolution in Russia in November 1917 and labor strikes in the US fueling a red scare. The main targets were immigrants ostensibly suspected of involvement in a series of anarchist bombings, thousands of whom were rounded up and detained in the “Palmer Raids.” Many hundreds were summarily deported to what was then known as Soviet Russia; the perpetrators behind the bombings were never identified.
In January 1920 Eastman and Baldwin formed the American Civil Liberties Union (ACLU) as a permanent organization, with Baldwin as its founding director. Among the lawyers active in the newly formed group were Chafee and his Harvard Law School colleague Felix Frankfurter, the future Supreme Court justice. That spring both took part as friends of the Court in a federal case in Boston, Colyer v. Skeffington, challenging the planned deportation of seventeen alleged radicals arrested during the Palmer Raids. “A more lawless proceeding it is hard for anyone to conceive,” Judge George W. Anderson said in handing down his lengthy decision forbidding the deportations on June 23. “I can hardly sit on the bench as an American citizen and restrain my indignation. I view with horror such proceedings as this.” His condemnation helped bring the raids to an end.
Over the next two decades a number of disputes erupted over freedom of speech, including struggles over labor organizing, the teaching of evolution, the distribution of materials dealing with birth control, and the publication of allegedly obscene books like Ulysses. But it was in the second red scare that followed World War II and the onset of the Cold War that free speech in America again came under sustained attack. Many thousands of employees of government agencies and defense industries were purged; college faculty members had to sign loyalty oaths, with some losing their posts; and Senator Joseph McCarthy and others led congressional investigations alleging that their targets had shown disloyalty or associated with allegedly disloyal organizations.
The 1940 Smith Act had made it a crime to “advocate” the violent overthrow of the government—an offense that, in practice, prosecutors often inferred on the basis of the defendant’s organizational affiliations. A series of congressional hearings infamously targeted leading figures in the entertainment industry—including performers such as John Garfield and Paul Robeson and playwrights like Arthur Miller, Lillian Hellman, and Clifford Odets—who were alleged to have affiliations with the Communist Party or communist fronts. Some were prosecuted and imprisoned for refusing to answer questions; a great many more spent years on the blacklist, unable to find employment.
A number of factors contributed to the abatement of these attacks on freedom of _expression_. One was a change in the composition of the Supreme Court. Three appointees of President Dwight D. Eisenhower—Chief Justice Earl Warren, Justice John Marshall Harlan, and Justice William Brennan—joined with long-serving Justices Hugo Black and William O. Douglas as protectors of the First Amendment. In 1957, for instance, Harlan wrote the Court’s decision in Yates v. United States overturning convictions under the Smith Act; that same year Brennan wrote the decision in Keyishian v. Board of Regents striking down the loyalty oaths required of faculty members at the State University of New York.
A few other individuals in this period stand out for their defense of free speech, among them the journalist Edward R. Murrow—whose “See It Now” broadcasts on CBS Television were particularly effective in countering Senator Joseph McCarthy—and the former President of the University of Chicago, Robert M. Hutchins, who led the Fund for the Republic (funded by the Ford Foundation) that strongly defended civil liberties. The ACLU, for its part, had a mixed record during this period. Though its national office, under the direction of Patrick Murphy Malin, who succeeded Baldwin in 1950, did not provide leadership, many of its state affiliates, including in California and New York, led the way in addressing such matters as the blacklist, Congressional investigations, and loyalty oaths.
Many of the most important free speech battles of the late 1950s and early 1960s involved protests against racial segregation. State and local police beat civil rights activists, attacked demonstrators with police dogs and fire hoses, and in some cases murdered peaceful protesters—as in Neshoba County, Mississippi, in 1964, where three civil rights workers were killed by police affiliated with the Ku Klux Klan. The federal government under Presidents John F. Kennedy and Lyndon B. Johnson intervened to demand that local officials in southern states respect the rights of protesters, as did a few federal judges. It was the civil rights struggle in Alabama that became the occasion for New York Times Company v. Sullivan, the 1964 Supreme Court decision establishing that a public official must prove “actual malice” to prevail in a defamation case—one of the most important protections for free speech in American history. That decision may now be under threat: Trump has said in the past that he wants to “open up our libel laws,” as he put it on the campaign trail in 2016, and US Supreme Court Justices Neil Gorsuch and Clarence Thomas have suggested that the Court should revisit the ruling.
Then came the Vietnam War. No other cause has ever brought so many Americans into the streets over a sustained period to object to the policies of their government. Great numbers of protesters were arrested. Some 13,000 arrests occurred on a single day in May 1971, after the Department of Justice took over policing in Washington, D.C., and imposed what William Rehnquist, then an assistant attorney general, called “qualified martial law.” Defended by lawyers for the ACLU of the National Capital Area, virtually all of those demonstrators had their charges dismissed, and some received small payments for unlawful arrest. On the other hand, many young men went to prison when they were denied conscientious objector status, or for such gestures as burning their draft cards—pieces of paper that served no real purpose other than proving that, in most states, they were old enough to drink. Press freedom, too, came under attack, most famously when, in 1971, the federal government attempted to bar The New York Times and The Washington Post from publishing the Pentagon Papers and prosecuted Daniel Ellsberg for leaking them. A divided Supreme Court upheld the newspapers’ right to publish the documents, and Ellsberg went free because of government misconduct in its attempt to convict him.1
These battles left behind a generally favorable system of free speech protection. (The most significant setback was over symbolic speech: in its 1978 decision in United States v. O’Brien, the Supreme Court upheld criminal punishment for destroying a draft card.) In the half century between the end of the Vietnam War and the beginning of Trump’s second term there were many more struggles over the First Amendment, involving such issues as pornography, hate speech, political campaign spending, the right to privacy or to a fair trial, the rights of journalists to protect the confidentiality of their sources, and the regulation of social media. Yet at no point would it have been correct to say that freedom of speech as a whole was under attack. On the contrary, free _expression_—by means of speech, or the press, or by the right to associate or to assemble peaceably—was probably as well protected in the US as in any other country in the world. In the past year all that has changed.
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Trump’s assault on speech has some continuities with the past. His campaign against individual political dissenters, for instance, recalls the attacks on immigrants during the Palmer raids. The arrest, detention, and attempted deportation of international students such as Mahmoud Khalil and Rümeysa Öztürk is the tip of the iceberg: last March Secretary of State Marco Rubio said that he had signed more than three hundred letters revoking the visas of people who had expressed views on foreign policy the Trump administration found unacceptable, signaling to more than a million international students that they can no longer count on having their freedom of speech respected.
But the second Trump administration’s attack on freedom of speech also differs in important ways from earlier attacks. With the exception of certain well-known figures, the great majority of those who suffered during twentieth-century crackdowns on speech were individual antiwar activists, adherents of radical causes, and other political dissenters without substantial resources or stature in American public life. The Trump administration, in contrast, has singled out establishment institutions: elite universities such as Harvard, Columbia, and the University of California; mainstream broadcast media; top law firms that represent the country’s most powerful clients and whose partners earn millions of dollars a year.
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Illustration by Félix Vallotton
It is hard, too, to think of an instance in which the president himself has played such a direct and overt part in an assault on free speech. Even Richard Nixon—who kept an enemies list that included opponents of the war in Vietnam and helped choose the targets for FBI wiretaps without judicial authorization after press reports appeared on America’s “incursion” into Cambodia—undertook such actions covertly. In contrast, Trump personally filed lawsuits against the CBS and ABC television networks and issued executive orders specifying the penalties that he would impose on particular law firms he accused of antagonizing him. Personal animus seems the exclusive basis on which they were selected.
Still more dismayingly, these attacks have been met with strikingly little resistance. The law firms and the broadcast networks that Trump singled out could have readily vindicated their rights in court, yet most chose not to resist. This is less surprising than it might seem. The institutions at the center of Trump’s crackdown are larger and more established than the targets of past attacks on free speech in the US, but that very fact also means that they have large amounts of money at stake. Many—though thankfully not all—seemed to fear putting up a fight because it could cost them dearly. Their failure to resist makes it more likely that Trump will continue on this path.
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An important component of the Trump administration’s attack on freedom of speech has been its attempt to control leading American universities by imposing large monetary penalties and cutting off federal grants and contracts. The right-wing assault on these institutions actually began a little more than a year before Trump’s inauguration. Starting in December 2023, in hearings by the House Committee on Education and the Workforce, Representative Elise Stefanik of New York questioned Liz Magill, president of the University of Pennsylvania; Claudine Gay, president of Harvard; and others about how they had dealt with antisemitism in protests over Israel’s war in Gaza. Those hearings, which led to the resignations of both Magill and Gay, may have helped Trump realize how vulnerable elite universities could be—especially how dependent they were on government grants, how susceptible they were to pressure from wealthy donors, and how many other ways there were to threaten the vast amounts of funding they have become accustomed to receiving.
The administration has made a variety of demands on universities, including increasing “viewpoint diversity” on their faculties and among their students, protecting conservative thought, limiting the number of international students, and ending diversity, equity, and inclusion policies. The Education Department has declared that “academic freedom is not absolute” and has sought to be involved in determining how academic institutions carry out these policies. Yet it is far from clear how a matter such as “viewpoint diversity” would be addressed. Does it require universities to recruit people with diverse views on an academic subject, or diverse political views? If the former, how might that affect hiring in, say, the chemistry department or the mathematics department, where many questions have only one correct answer based on objective evidence? If the latter, would it follow that if most members of a mathematics department are liberals, then only conservatives would be considered for an opening? Would mathematicians have to advertise their political views to secure an appointment?
The administration’s means of securing compliance with these demands has been to threaten federal grants and contracts, which it has done to Harvard, the University of Pennsylvania, the University of Virginia, Cornell, Princeton, Northwestern, and others. Often these are grants and contracts involving medical and other scientific research. American universities have been leaders in these areas, but that may be coming to an end.
And yet giving in is also expensive. Brown University settled with the administration by committing to a payment of $50 million. Columbia University agreed to pay four times as much. For months the government demanded that UCLA not only pay $200 million annually for five years but ensure that international applicants who are “likely to engage in anti-Western, anti-American, or antisemitic disruptions or harassment are not recruited or admitted,” which would require the university to screen potential students politically. The proposed settlement also had provisions intended to bar transgender students and prevent “any applicant reference to racial identity” from being used in the admissions process. In November a district judge temporarily blocked the proposal, and last month the administration withdrew its appeal of the court’s order—then sued the university days later over allegations of antisemitism.
Trump’s executive orders and memoranda against major law firms were even more explicit about using this sort of financial leverage. In a number of cases they directed federal agencies not to do business with those firms, to deny their lawyers security clearances, and even to bar their personnel from entering federal buildings—potentially costing the firms tens of millions of dollars of lost business. The stated rationales for these proscriptions were too far-fetched to take remotely seriously. (Trump accused Perkins Coie, for instance, of “undermining democratic elections, the integrity of our courts, and honest law enforcement,” among other allegations.) Their only plausible basis was Trump’s private grievance.
The firms affected or threatened by these measures would have easily prevailed against the administration in court, and the four that fought back—Perkins Coie, WilmerHale, Jenner & Block, and Susman Godfrey—did indeed get rulings from federal judges in their favor. (Trump’s Justice Department recently asked the US Court of Appeals for the District of Columbia to dismiss the relevant cases—only to reverse course a day later and renew the appeals after all.) Yet most of the firms agreed to settlements in which they collectively pledged to provide about a billion dollars in free legal services on behalf of Trump-supported causes. In all probability, many law firms will now be reluctant to provide legal support for causes that may further antagonize the president.
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The attacks on the media have so far taken the form of personal lawsuits. In March 2024 Trump sued ABC, alleging that George Stephanopoulos had defamed him by saying that he had been found liable for rape in a court case. (The ruling in the E. Jean Carroll case actually found Trump liable for sexual abuse rather than rape.) As a public figure suing for defamation Trump would have to prove not only that ABC was mistaken but that the mistake was made with “actual malice”—that is, with knowledge that it was false or in reckless disregard of whether or not it was false. It seemed highly unlikely that he could prevail. Yet in December, after Trump won the election, the Walt Disney Company, which owns ABC and had important financial interests in matters pending before federal agencies—including a possible FCC investigation into its planned joint streaming service with Fox and Warner Brothers, and a new FTC regulation requiring that streaming services like Disney Plus be made easier to cancel—agreed to pay $15 million toward Trump’s future presidential library to settle the case and another $1 million to his law firm.
The episode seemed to foreshadow the way the company initially dealt with Jimmy Kimmel some months later. In September 2025, Kimmel’s monologue about the assassination of Charlie Kirk elicited an immediate threat from Brendan Carr, the chair of the FCC, who said, “We can do this the easy way or the hard way.” ABC responded by declaring that all broadcasts of Kimmel’s show would be halted “indefinitely.” President Trump made comments backing Carr, but the episode aroused a furor and two Republican Senators, Ted Cruz of Texas and Rand Paul of Kentucky, criticized Carr for interference with free speech. Their intervention may have been crucial. ABC reversed course and restored Kimmel’s show.
Trump’s suit against CBS—initially for $10 billion, which he subsequently raised to $20 billion—was based on a claim that the network had violated a federal statute barring false advertising by editing an interview with Kamala Harris broadcast on 60 Minutes to portray her in a better light. It seemed at least as weak a case as his lawsuit against ABC. But Paramount Global—which owned the network and was seeking FCC approval for its pending sale—settled the case for another $16 million. Bill Owens, the executive producer of 60 Minutes, and Wendy McMahon, the president of CBS News, both resigned before the settlement was announced. Soon thereafter, CBS announced the cancellation of Stephen Colbert’s late-night broadcasts, which have been critical of Trump.
In the aftermath of the settlement with President Trump the chief executive, founder, and principal financier of Paramount Skydance, David Ellison, appointed Bari Weiss as the editor-in-chief of CBS News, which in an earlier era had acquired a reputation for distinguished investigative reporting under the leadership of journalists such as Murrow, Fred Friendly, Eric Sevareid, and Walter Cronkite. Weiss’s lack of any experience in broadcast journalism, her sympathy for many of the policies associated with Trump, and the fact that she reports directly to Ellison suggested that she was appointed in some part to ensure that CBS’s news reporting would not antagonize the administration. Weiss’s last-minute intervention to block a 60 Minutes report on the notorious CECOT Prison in El Salvador, a torture center to which the Trump administration sent some two hundred and fifty Venezuelan detainees, seemed to confirm this assessment. (The episode eventually aired nearly a month later.)
In December Trump filed a lawsuit in Florida against the BBC regarding the network’s editing of a segment dealing with his remarks on January 6, 2021, to demonstrators near the Capitol building. In the weeks prior to Trump’s suit a critical internal review of the broadcast—which aired in the UK but not the US—had been reported in the conservative Daily Telegraph, resulting in the resignations of the director-general and the news chief executive of the BBC and an apology by the network’s chair. Even so, as of this writing the BBC is resisting Trump’s suit in court.
On the whole, Trump so far seems to have less leverage over newspapers. Some newspaper owners have other business interests subject to federal authority, and in certain of those cases Trump’s second coming has indeed had an impact. Most prominent has been the case of The Washington Post. In 2024 Jeff Bezos, the Amazon billionaire who bought the Post in 2013, forbade the paper from endorsing Kamala Harris and ended its practice of endorsing presidential candidates; the following February he decreed that the Post’s opinion columns would be limited to support for “personal liberties and free markets.” Then, last month, Bezos eliminated the jobs of more than three hundred of the Post’s roughly eight hundred journalists. Ostensibly the cut was made for financial reasons. Perhaps. But some critics suggested that Bezos, one of the four or five wealthiest people in the world, could readily afford the losses and that it was another step in diminishing the significance of what had been one of the world’s most important news organizations.
Other papers have thus far borne up under Trump’s pressure, perhaps because they have a stronger tradition of resistance to government pressure, perhaps because some have owners less financially reliant on federal regulatory authority. In December 2024 Trump filed suit against the Des Moines Register—now owned by USA Today, the largest newspaper publisher in the US—alleging fraud and election interference for publishing a poll before the election showing him losing Iowa. (He ended up winning the state by a comfortable margin.) While that lawsuit continues at this writing, it has not had a discernible impact on the newspaper’s reporting. The same is true of a lawsuit Trump filed against The New York Times for $15 billion for its reporting on his business activity and a suit for $10 billion against The Wall Street Journal for its reporting on his alleged birthday greetings to Jeffrey Epstein. Early in his term Trump barred the Associated Press from the White House press pool for declining to follow his executive order renaming the Gulf of Mexico as the Gulf of America; litigation is ongoing as of this writing, but the dispute likewise does not appear to have influenced the AP’s reporting, which tends to be reliable.
And yet it is extremely troubling that newspapers seem to have been the exception rather than the rule. The values set forth in the Declaration of Independence and the Constitution endured through other periods of repression in the country’s history because antiwar activists, civil rights demonstrators, birth control proponents, labor organizers, and political radicals resisted, often at great personal cost, and often with the aid of defenders of free speech. So far many prestigious universities, powerful law firms, and major broadcast media have capitulated to Trump. If more of our institutions do not start fighting for those values, we may not be able to count on their survival.