The White House goes all-out against the First Amendment

A 10-part assault on free speech

This weekend, the Trump Administration arrested and detained Mahmoud Khalil, a legal permanent resident of Palestinian descent who helped lead Columbia University’s student protest movement demanding a ceasefire in Gaza.

The Department of Homeland Security initially stated that “Khalil led activities aligned to Hamas” and the White House later added that he had led protests where “pro-Hamas propaganda” was distributed. Khalil has been charged with no crime and a White House official stated that there is no allegation he was breaking the law. Trump confirmed that not only was Khalil targeted for deportation because of his involvement in protest activity, which he characterized as “anti-American,” but that his would be “the first arrest of many to come.”

This is textbook, unabashed retaliation and viewpoint discrimination; while the exact basis the government asserts for the arrest and revocation of Khalil’s legal status remains unclear, the basic First Amendment problem is not. And while a federal judge quickly halted any deportation effort, much of the damage may already be done. For one, as of this publication, Khalil is still detained. And this isn’t just about Khalil: The White House’s broader goal here is to intimidate protestors, particularly immigrant protestors, and chill dissent of all kinds going forward — starting with a viewpoint that it hopes many will see as unworthy of protection.

The day before Khalil’s arrest, the White House announced it was canceling $400 million in federal research grants and contracts to Columbia. And, although it framed the move as a response to Columbia’s failure to prevent anti-Semitism on campus, the government has not made any of the statutorily required determinations that would substantiate that claim.

If you step back, the Trump White House is attacking the First Amendment on at least 10 different fronts. This is an attempt, functionally, to destroy freedom of speech before the American people even notice that their rights are under attack, kneecapping the opposition in the process. And unless all of us push back forcefully and with a united front, this effort could very well succeed.

A 10-part attack on the First Amendment

Beyond using federal law enforcement to target student protestors and federal funding to target universities that saw student protests, the Trump Administration is right now using the full force of the federal government to go after viewpoints he dislikes in at least nine other ways:

1. Instituted strict speech codes across federal workforce and programs — Under the guise of attempting to end “DEI” and “gender ideology,” the White House has implemented strict restrictions on specific words like “gender” and “inclusion.”

2. Defunded artists, writers, and scientists whose work might challenge its agenda — The White House has shut down the projects of academic researchers studying issues connected to race and gender, and the National Endowment for the Arts will use those vague speech codes in deciding which arts institutions and theater companies to fund.

3. Attempted to ban disfavored speech by private companies — In seeking to extend the so-called “DEI-ban” on things like workforce diversity training programs to all government contractors, the White House is attempting to police private speech at private companies. (We recently won a major First Amendment victory on this topic.)

4. Retaliated against individual media outlets for disfavored coverage — Trump has attempted to make an example of the Associated Press by curtailing its White House access over declining to use the “Gulf of America” language. The White House has also announced a plan to tightly control which outlets get access going forward, and the Pentagon has removed mainstream media from office space in favor of pro-Trump outlets. (Kenneth Parreno and Janine Lopez explain Trump’s longstanding attempts at press censorship dating back to his first term.)

5. Excluded employees of organizations that engage in disfavored advocacy from Public Service Loan Forgiveness — Trump signed an executive order attempting to exclude employees of nonprofit groups deemed to have “an illegal purpose” from the popular public interest loan forgiveness program, including, apparently, those who work with unauthorized immigrants and transgender youth.

6. Used bad-faith lawsuits against the media for coercive purposes — As a private citizen, Donald Trump has sued media organizations like ABC, the Des Moines Register, and CBS (the latter for $20 billion dollars!). While the legal merits of these cases are laughable, the practical effect of a presidential shakedown is anything but.

7. Used the Federal Communications Commission to launch investigations into outlets and platforms for unfavorable coverage — FCC Chair Brendan Carr has launched investigations into news outlets like CBS (for the same broadcast Trump sued on), NPR, and PBS, and KCBS radio, all for content decisions that the White House disagrees with. These investigations are clearly intended to chill speech and media freedoms.

8. Attempted to use government hiring to force a law school to change its curriculum — Interim US attorney in DC Ed Martin has attempted to use the threat of not hiring graduates to try to compel changes to university curriculum.

9. Attacked law firms for representing political opponents — In a pair of executive orders, Trump has gone after two different law firms that have, currently or in the past, represented his political enemies, attempting to cancel contracts and stripping their attorneys of security clearances. (In addition to the First Amendment violations, this is a full-frontal attack on the constitutional right to legal counsel.)

A true free speech crisis

All together, this amounts to the greatest crisis for the First Amendment since at least the McCarthy era.

Especially alarming is how rapidly this is happening. Trump is quickly eroding the civic space for dissent, free expression, and a free press. Plus, this all-out assault is likely to only accelerate in the months ahead as the Administration sees the success of growing protest movements. We can expect Donald Trump to continue to respond with ever-greater attempts at repression, censorship, and retaliation to mute the small-d democratic response to his administration’s actions.

As we wrote last October: Peaceful protest is a bulwark for democracy.

When other channels of democratic engagement feel closed off or fruitless, people can take to the streets to change policy or bring attention to an issue or movement. That’s been the case here in the U.S., where our political tradition has invited a broad range of political protest, from the Tea Party (both the one in Boston and the more recent iterations) to the Civil Rights era to, among recent examples, protests against COVID-era restrictions, or the Gaza anti-war protests. And with more and more of the public feeling like our political system doesn’t fully represent them, the availability of protest becomes all the more important.

Research and analysis around the world emphasize that creating open space for political expression is a core pillar of a democratic society. Nearly every contemporary metric of democratic health recognizes the importance of political expression, including the Freedom House Index, the Economist Intelligence Unit’s Democracy Index, and the V-Dem Index.

Read the whole piece.

That space may be closing faster than almost anyone realizes.

The only solution: resolute and united pushback

The only way our democracy can endure this growing First Amendment crisis flowing from the White House is if its targets refuse to bow to the attempts at intimidation and coercion. After all, the goal of these attacks on free speech is largely to get Americans to self-censor. If we collectively refuse to do so, then these attacks on the First Amendment will fail.

What does fighting for the marketplace of ideas look like, in this particular moment?

• Dissenters and their movements continuing to speak and advocate in the face of retaliation and repression (like the attempt to deport Khalil), evolving where necessary to protect noncitizens.

• Litigators and courts holding the First Amendment line, even on behalf of perspectives they personally disagree with.

• The press aggressively and accurately covering the Trump administration even when doing so raises the ire of the White House (especially then), and responding jointly and in solidarity when individual outlets (like the AP) are singled out for retaliation.

• Universities banding together to defend free speech and academic freedom in the face of funding threats, using all possible lawful tools including litigation.

• Private companies refusing to let business decisions be driven by White House speech codes.

There’s a theme here, and that theme is collective action. The authoritarian faction seeks to pick off dissenting voices one at a time, and cross-sector solidarity is the only bulwark against that tactic. The less popular the dissenter, the better fuel for the repression to come, especially early on. That’s why civil society actors must unite to protect freedom of speech — even when they disagree with the viewpoint being expressed.

The First Amendment is not self-enforcing. Its promise is only real — free speech is only real — if Americans, collectively, continue to stand against repression and censorship.