Almost 250 years after the Declaration of Independence, the United States still is striving to meet the promises of its founding — liberty and equality. The path to a “more perfect union” stretches behind us, past landmarks of a bloody Civil War, the 19th Amendment, the Civil Rights Movement, the women’s rights movement, the legal fight for same-sex marriage and many more. The path to a better union stretches out in front of us to the horizon. Today’s differences about how to protect liberty and equality show how much work remains.
250 years ago, the battles of Lexington and Concord and Bunker Hill had already occurred. The Second Continental Congress was meeting in the lead up to the Declaration of Independence. Yet today, the Declaration’s promises are under attack and the debate about what they mean is sharp and divisive.
President Donald Trump, who made free speech a leading issue in his election campaign has ended up generating an unprecedented wave of government actions to punish the free expression of universities, law firms, media organizations and libraries and has slammed the brakes on important scientific research.
Greg Lukianoff, president and CEO of The Foundation for Individual Rights and Expression, a libertarian free speech group, had actively opposed “cancel culture” on campus that punished conservative speech that offended liberal sensibilities. He warned there would be a backlash and it has arrived.
He put it this way on a recent Zoom call: “I’ve been warning that if you don’t fix the speech issue on campus, there will be a right-wing backlash.” Part of the backlash was the election of Trump and his executive actions over the past 11 months.
Trump’s second term attack on free speech has combined the hammer of federal funding, Trump’s transactional method of governance and his unapologetic modus operandi of ignoring ethical standards while accumulating power.
The weak-kneed willingness of top media, law firms and university officials to cave into Trump’s pressure — even when Trump’s legal claims are extraordinarily weak — also contributed to Trump’s success.
Big media and social media companies have paid Trump and his organizations about $90 million and nine big law firms have made deals with him for $940 million in pro bono work for a man who doesn’t need a free lawyer.
By making multi-million dollar deals with Trump, they have surrendered First Amendment rights that they could have vindicated in court.
Liberals and conservatives alike are astounded at how rapidly Trump has exerted powers that many people thought were beyond the control of the president.
A spike of attacks on speech after Kirk assassination
That onslaught on free speech has accelerated since the September assassination of conservative influencer and free speech advocate Charlie Kirk.
FIRE’S Lukianoff said, “The opportunistic backlash to Charlie Kirk led to an enormous spike in people on campus” who were canceled for liberal speech. “There was a massive national backlash but it is an ugly sign of free speech nationally.”
FIRE found that the government acts to punish scholars, universities and students had grown rapidly this fall. FIRE:
- “Documented 80 campaigns to sanction scholars — 40 of which resulted in penalties, including 18 terminations. Many of these cancellation campaigns were led by prominent conservative influencers on social media and/or by elected officials at the state and federal levels.
- “Recorded 25 campaigns targeting individual students or student groups for speech regarding Kirk and/or his assassination, and an additional five against campus chapters of Turning Point USA, the organization Kirk founded.”
- Found that University of Florida system Chancellor Ray Rodrigues ordered punishments for faculty and students who celebrate or excuse Charlie Kirk’s assassination.
Lukianoff also reported this month on the 37 days in jail spent by Larry Bushart, a 61-year-old retired police officer living in Lexington, Tenn. Bushart had posted a meme on Facebook after Kirk’s assassination showing a picture of Trump along with Trump’s comment in response to a school shooting at Perry High School in Iowa in 2024: “We have to get over it.” The meme was headed by the caption, “This seems relevant today.”
After Bushart shared the meme on a Facebook thread about a vigil for Kirk in nearby Perry County, Tenn., the Perry County Sheriff’s Office obtained a warrant for Bushart’s arrest, claiming the post was a threat of “mass violence” at a school. Bushart couldn’t make the extraordinary $2 million bail and spent 37 days in jail before prosecutors dropped the charge.
Said FIRE’s Lukianoff, “In my 25 years working as a lawyer on free-speech cases, I have seen a lot of overreach. I have never seen anything quite like this.”
Trump won on free speech
Trump won the 2024 election partly because he championed free speech, opposed “Woke” sensibilities, wanted to end “cancel culture,” and blasted tech executives for “censoring” conservative speech online — including his own false claims about having won the 2020 election.
A poll by FIRE found in the days leading up to the 2024 election the second most important issue to voters was free speech, right behind inflation and ahead of health care.
In one of his first acts as president, Trump issued an executive order, “RESTORING FREEDOM OF SPEECH AND ENDING FEDERAL CENSORSHIP.” The order maintained that the Biden administration had ‘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. Under the guise of combatting ‘misinformation,’ ‘disinformation,’ and ‘malinformation,’ the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate. Government censorship of speech is intolerable in a free society.”
In a speech a few days later in January, Trump said:”No longer will our government label the speech of our own citizens as misinformation or disinformation, which are the favorite words of censors and those who wish to stop the free exchange of ideas and, frankly, progress.”
One legal problem with Trump’s executive order is that the U.S. Supreme had ruled in 2024, in a case brought by then Missouri Attorney General Andrew Bailey, that there was no evidence that the Biden administration did anything more than jawbone social media to take down false and dangerous posts. There is nothing wrong with jawboning, the justices said. There is only a violation of free speech if the government coerces a social media platform to take down a post and there was no evidence of coercion. Social media companies are private and for that reason are not covered by the First Amendment unless the government coerces them to act.
In fact, the Trump executive order “restoring free speech” violated the free speech of social media companies to edit their sites, legal experts say.
Even though the social media companies had won the argument in the Supreme Court, they agreed to pay Trump millions after he was elected in what FIRE and other free speech organizations called “capitulation”.
In September, YouTube/Google agreed to pay $24.5 million to Trump and several others, to settle a lawsuit over YouTube’s suspension of their accounts after the Jan. 6 riot at the Capitol. In June, Meta settled for $25 million, followed by X, which agreed to a $10 million settlement.
“This is straight influence-peddling,” said Eric Goldman, a law professor at Santa Clara University and an expert on internet speech. “This YouTube settlement is not a sign of any legal merit.”
FIRE had a harsher criticism, putting the internet deals in the broader context of earlier media settlements. “Unfortunately, this is in addition to media companies like Paramount Global, who bent the knee to Trump for $16 million this past July, and ABC News, who settled for $15 million late last year… If you care about free speech, this should really pi–– you off. These companies and institutions traded principle — and, most importantly, the opportunity to stand on their First Amendment rights — for profit and short-term peace of mind.”
A kicker to the YouTube deal is that the settlement documents direct that “$22 million paid to Trump will be contributed, on his behalf, to the Trust for the National Mall, a 501(c)(3) tax-exempt entity dedicated to restoring, preserving, and elevating the National Mall, to support the construction of the White House State Ballroom” to replace the now demolished East Wing.
Meanwhile, Jeff Bezos, Amazon CEO and publisher of the Washington Post, not only blocked the Post’s endorsement of Kamala Harris, altered the Post’s editorial policy and contributed to the Trump inauguration, but also paid $40 million for Melania Trump’s documentary and has paid for the rights to stream Trump’s old Apprentice shows, even though there doesn’t appear to have been much bidding for them.
Not all media cave
Some Media have fought back in court against some of Trump’s direct attacks on media organizations.
_ The Associated Press won a partial victory when Trump banned AP reporters from presidential press pools for refusing to call the Gulf of Mexico the Gulf of America.
_ Trump and Congress defunded public media for being too “biased,” but those efforts are tied up in court because of arguments that the government can’t censor organizations because of their viewpoint.
_ Trump is trying to end the Voice of America, but a federal judge ordered earlier this year that its operations resume. At the end of November Kari Lake, the election denier from Arizona who was Trump’s pick as director, closed overseas marketing offices in Jakarta, Indonesia; Islamabad, Pakistan; Nairobi, Kenya; and Prague, Czech Republic. This came at a time when Democratic and some Republican members of Congress are expressing concern that the loss of VOA means surrendering the information war with Russia over Ukraine.
_ The New York Times accused the Pentagon in a lawsuit in December of infringing on the constitutional rights of journalists by imposing a set of new restrictions on reporting about the military.
The suit says the new press policy at the Pentagon violates the First Amendment because it “seeks to restrict journalists’ ability to do what journalists have always done — ask questions of government employees and gather information to report stories that take the public beyond official pronouncements.” Reporters lose their press pass if they publish a story without Pentagon approval.
Veteran Pentagon reporters refused to sign the agreement and were replaced more conservative influencers, including Laura Loomer, who has claimed 9/11 was an inside job by the U.S., the former House member Matt Gaetz and the Gateway Pundit, the St. Louis based originator of false stories about the 2020 election being stolen by Atlanta poll workers stuffing ballot boxes.
Will Creeley, legal director of FIRE, said this month, “What happened with the Pentagon Press rules is ridiculous. Those rules really require the press to self-censor, to serve as patsies.”
Department of Education investigations on diversity and antisemitism
Two of the most powerful federal levers of power are civil rights investigations into claims that universities have failed to protect Jewish students from pro-Palestinian protesters and that university programs and documents using the word “diversity” are signs of illegal educational programs favoring minorities over whites.
Washington University in St. Louis is one of the colleges that scrubbed the word “diversity” from websites. Chancellor Andrew Martin said he didn’t know what the word meant.
There is nothing wrong or unconstitutional about a university or other organization using diversity or equity as a goal as long as it does not discriminate against any students.
But many universities have reacted defensively to avoid Trump administration ire and threatened budget cuts.
- This month at the University of Alabama Vice President for Student Life met with staff of student-run outlets Alice Magazine and Nineteen Fifty-Six, and told them the magazines were permanently suspended. The university claimed it was basing its decision on a July 29, 2025, non-binding legal memo from U.S. Attorney General Pam Bondi, which warned against the use of “unlawful proxies” of race, such as diversity. FIRE wrote back, “As a public university bound by the First Amendment. UA may not retaliate against an editorially independent student publication based on its content or viewpoint… There is no proof Alice Magazine or Nineteen Fifty-Six used any unlawful proxies in their recruitment efforts. The only “problems” to which UA has pointed is the content and viewpoints of these publications, which are safeguarded by the First Amendment. Simply put, no federal antidiscrimination law authorizes the university to silence student media it dislikes… UA’s suspension of these magazines is a brazen attack on the student press.”
- The University of Virginia forced out its president Jim Ryan under pressure from the Justice Department. Ryan wrote this fall that he was “stunned and angry” over the university board’s lack of honesty in the face of pressure from the federal government to force him out for not dismantling DEI initiatives.
- In California, UC Berkeley, facing a Trump administration demand for a $1 billion payment, complied with a demand by the Department of Education’s Office of Civil Rights and turned over the names of 160 students, faculty, and staff for “potential connection to reports of alleged antisemitism.” Feminist philosopher Judith Butler, one of the professors named in the file, compared the situation to the 1950s McCarthy era and said the university’s compliance “represents a breathtaking breach of trust, ethics, and justice.”
U.S. District Judge Rita F. Lin ruled in November that the administration was forbidden “from seeking payments” from the University of California university system in connection with civil rights investigations. In particular, she said the administration could not “restrict its curriculum, scholarship or research based on the defendants’ preferred viewpoints,” nor could it connect funding to a requirement to “screen international students based on ‘anti-Western’ or ‘anti-American’ views’.” These actions, she said, would violate the First Amendment.
The pro-Palestinian rallies on many college campuses that began in 2023 after the Oct. 7 terrorist attack by Hamas on Israelis have led to numerous free speech controversies that pit the First Amendment right to speech against anti-discrimination protections in civil rights laws designed to protect equality. In other words, there can be a direct conflict between liberty and equality, the nation’s two central founding values.
The Supreme Court’s interpretation of the First Amendment protects hate speech, even if some of our politicians seem not to know that. Both Minnesota Gov. Tim Walz and Attorney General Pam Bondi claimed incorrectly this fall that the Constitution does not protect hate speech. Actually, the court found in a case involving Clarence Brandenburg’s KKK rally with a Nazi goosestepper in an Ohio farm field that hate speech is protected unless violence is imminent.
Title VI of the Civil Rights Act of 1964 bars discrimination based on race, color or national origin, which includes “shared ethnic ancestry.” Both Muslims and Jews can claim this shared ancestry protection and the legal right to be protected from a hostile educational environment that prevents them from receiving an education.
FIRE’s Creeley said the speech must be “objectively offensive and must demonstratively prevent a student from getting education or make a student fear for his safety. Criticism of Israel war policy in Gaza is not enough. Nor is the ‘river to the sea’ rhetoric or calls to “globalize the intifada.”
Creeley said speech alone is not enough. There has to be more such as “cornering someone, refusing to let them leave or taking over a building where it is not just expression but conduct. Those are things the university must protect.”
Adds Lukianoff, the First Amendment “has the widest tolerance for opinions and least tolerance for violence. Our Constitution stands against Oceania’s Ministry of Truth.” — a reference to George Orwell’s ministry in “1984” that peddled lies as truth.
Freest on earth
We don’t live in Oceania, although some days it may seem like it.
We have lived through times that were much more divided than now, times when the First Amendment was little more than nice words on parchment.
There was Nixon’s enemies list of journalist enemies. The culture war between Hippies and Hardhats and the Chicago police and protesters at the 1968 Democratic National Convention. Radical bombings of the 60s and 70s, including a bombing of the Capitol. Sen. Joseph McCarthy’s Red Scare of the 1950s when it was a crime to be an officer of the Communist Party. FDR’s interment of American citizens of Japanese descent during World War II. Justice Oliver Wendell Holmes’ approval of forced sterilization laws with the pithy remark, “Three generations of imbeciles are enough.” The Palmer raids of leftists, union leaders and anarchists after someone bombed the attorney general’s house in Chevy Chase.
244 years of slavery were followed by almost 90 years of segregation by law. A Missouri couple, Dred and Harriet Scott, was told by the Supreme Court that Black people had “no rights which the white man was bound to respect.” The House of Representatives passed a gag rule in1836 barring virtually any mention of abolition or limiting slavery. The following year, Missouri banned abolitionist speech altogether, followed by most of the Southern states. Also in 1837 a mob murdered editor Elijah Lovejoy in Alton destroying his press on the banks of the Mississippi. More than 100 mobs attacked presses in the run-up to the Civil War. Lincoln and Douglas criss-crossed Illinois in 1858 debating Dred Scott and slavery, but even Lincoln wouldn’t go so far as to advocate abolition.
After half a million men died in the Civil War, the 14th Amendment finally added equality to the Constitution in 1868 – 92 years after Jefferson had electrified the world with “all men are created equal.” But the 14th Amendment didn’t protect women. The Supreme Court made that clear to Virigina Minor of Missouri when she wanted to vote and to Myra Bradwell when she wanted to be a lawyer in Illinois. The Declaration of Independence was 144 years old before women got the right to vote and almost two centuries old before women got equal protection of the law.
All of these battles for freedom and equality were way stations on the road to a more perfect union. We the people can say they have made this the freest nation on earth.
William H. Freivogel is the publisher of GJR, the only journalism review left in the country that still produces a quarterly print magazine.
