The Trump Attack on Free Speech

While the Trump Administration’s brazen disregard for due process rights—evidenced by the actions taken against immigrants universities and law firms— has garnered the most attention, there is another theme of Trump Administration actions: it is attempting to use the full power of the executive branch to retaliate against people and institutions that have expressed particular views. It is also attempting to use its power to impose government supervision over what is taught or said.

These efforts are a clear violation of the First Amendment.

The examples are numerous:

• Trump issued five Executive Orders targeting law firms for representing clients and causes the President dislikes. Fortunately, the four firms that fought the Executive Order successfully won Temporary Restraining Orders, and Perkins Coie has successfully obtain a permanent injunction.

• Trump has gone after Universities in several ways. It has issued Executive Orders that bar institutions that have DEI policies and practices from receiving federal funds. It has suspended billions of dollars in federal grants from Harvard University and Columbia—and has threatened to do the same to other Universities as well—unless they agree to subject their curriculum, faculty hiring, and admission selections to government supervision designed to ensure “viewpoint” diversity. As Harvard’s President explained “No government—regardless of which party is in power—should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue.”

• Trump has cancelled the student visas and permanent resident status for hundreds of foreign students, whose only issue has been their activism that the government dislikes. One student's only offense seems to have been co-authoring an opinion in a student publication urging Tuft University to divest from Israel. The authority asserted for this is a Cold War statute that gives the Secretary of State the power to deport non-citizens “whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States.” This is a statute, and like all statutes is subject the constitutional limitations. Where, as here, the statute is being done to punish speech, it violates the First Amendment. And, as noted Immigration law scholars Peter Margulies and David Martin have argued, the statute cannot be read to authorize the attempted deportations here. Indeed, as they note, “the Conference Report on the Immigration Act of 1990—far-reaching legislation that included the foreign policy provision—stated that the authority Congress granted could “‘not be based merely on … the possible content of an alien’s speech.’”

• Trump—in what appears to be a clear violation of a criminal statute (26 USC 7217 makes it illegal for the President to “request, directly or indirectly, any officer or employee of the Internal Revenue service” to conduct an audit or other investigation of any particular taxpayer—has stated that the IRS will revoke the tax exempt status of Harvard. Edward R. Martin Jr., the Interim U.S. Attorney in Washington, D.C. wrote to the non-profit that runs Wikipedia, alleging that Wikipedia “is allowing foreign actors to manipulate information and spread propaganda to the American public [and] permitting information manipulation on its platform”, and questioning its tax-exempt status. And there are reports that future the IRS is targeting the tax exempt status of numerous other tax exempt organizations that the Trump Administration views as too “left.” This might include changing the rules that govern nonprofits to make this attack more viable. It is important to note that while non-profits are not allowed to participate in partisan politics and are subject to limits on lobbying activity, they are allowed to advocate to the public about issues important to their mission, and there is no requirement that they be viewpoint neutral.

• Edward R. Martin Jr. has even written a written a threatening letter to Georgetown Law School, because of what it teaches: “It has come to my attention reliably that Georgetown Law School continues to teach and promote DEI. This is unacceptable.” Martin noted that continuing to teach DEI will have consequences for Georgetown’s students: “no applicant for our fellows program, our summer internship, or employment in our office who is a student or affiliated with a law school or university that continues to teach and utilize DEI will be considered.”

• Edward R. Martin Jr. appears to be a one-man First Amendment violation machine. In the most bizarre action, he has even threatened the tax exempt and postal rate status of medical journals—yes, professional medical journals—if they don’t meet Martin’s standards for viewpoint diversity. As Eric Reinhardt wrote in Scientific American, ”We don’t know Martin’s, Kennedy’s or Trump’s specific motivations in sending a letter to CHEST, but it is clear that Martin’s threat to journals is not a one-off stunt. Like Trump’s actions that cut off or threaten federal research funding at Columbia, Harvard and other universities, it appears to be part of a calculated strategy to identify, isolate and intimidate researchers who, and institutions that, acknowledge realities like inequality, social differences and structural violence.”

• The Trump Administration has even attempted to punish K-12 schools who don’t toe its ideological line. In an Executive Order, K-12 schools can be barred from federal funding to schools that don’t adhere to a bar on “gender ideology and discriminatory equity ideology.”

• The new Chairman of the Federal Communications Commission has made numerous threats against broadcast media. He has threatened to deny approval of a pending sale of CBS’s parent based on Trump’s displeasure with CBS’s 60 Minutes program. He has also initiated enforcement actions against PBS and NPR. While the pretext of this investigation was the use of promotional statements by local affiliates of NPR and PBS—a practice that has existed for over a decade—it is apparent that they are being targeted because Trump doesn’t like their news coverage. And, of course, Trump is also attempting to completely defund NPS and PBS solely because of their news coverage.

So how do we stop this? In a word, we fight.

Sadly, as we saw with the capitulating Big Law firms eager to make deals with the Trump Administration, many are already choosing to comply with the ideological controls. Companies and law firms are gutting their DEI programs—even programs that clearly do not violate the law. The nation’s largest and most profitable law firms are striking deals with the White House. ABC settled a libel case that most experts said it would win to avoid being in the crosshairs of the FCC. And the resignation of the head of CBS’s 60 Minutes Program—and reports that CBS and Trump are engaged in a mediation of Trump’s legal claims against the network—suggest that CBS will soon cave as well.

But others are fighting —and, so far, are winning. The Perkins Coie victory this week is likely to be followed by decisions in favor of the other three law firms that decided to fight as well. I am positive that history will treat the firms and other institutions that decided to fight as heroes, and the firms and institutions that caved will be shamed. The bottom line, however, is simple: if we don’t fight—even at great cost and risk—we lose our First Amendment freedoms.

Those of us that are not yet in the crosshairs of the Trump Administration’s ideological crusade also need to speak out. I was proud that my form signed on to the amicus briefs supporting the targeted law firms, but was disturbed that most large law firms stayed silent. And this support can’t just be adding our names to amicus briefs. We need to help financially as well. Harvard and the big law firms have the resources to fight this fight. Many of the students facing deportation do not. We need to find ways to support these students—through pro bono assistance, Gofundme appeals, and support of organizations that are providing assistance.

Despite the stunning silence among Republican politicians, this is not just an issue for Democrats, liberals and progressives. It should matter to conservatives as well. As George Will explained to his fellow conservatives last week about the Trump assaults on Free Speech in the name of viewpoint diversity, “ Such statism will extinguish the core conservative aspiration: a civil society in constant creative ferment because intermediary institutions — schools, businesses, religious and civic organizations — are given breathing room, and are free to flourish or fail without supervision from above by a minatory central authority.”

So we fight.