Media, universities and law groups forgo legal challenges as Trump reshapes Washington and curtails free-speech protections
Many powerful law firms, media conglomerates and elite universities have surrendered their First Amendment rights to President Donald Trump without going to court.
As a result, President Trump has been able to use the cudgel of federal power to quickly win far-reaching victories over intellectual and cultural elites. This is particularly true when seen in the larger context of the defunding of public media, the imposition of Trump-approved ideology at the Smithsonian Institution, Trump’s takeover of the Kennedy Center and the loss of thousands of international students and hundreds of millions in cuts in the NIH funding at universities.
Taken together, Trump’s exercise of raw power has prevailed over many institutions whose purpose is the acquisition and spread of knowledge.
The change he has wrought in the first months of his second term have been consequential and may be seen by historians to be as far-reaching as the changes of the Ronald Reagan and Franklin D. Roosevelt presidencies. The changes accomplished in the name of ending “Woke” abuses to the free expression have done serious damage to free expression and the unfettered pursuit of knowledge.
The checks and balances of the Constitution have done little to slow the changes. The Republican controlled Congress has approved almost all of them and the U.S. Supreme Court has not significantly pushed back. Instead it has allowed the changes to go into effect before it could even consider the merits of legal challenges. The late August decision allowing massive, $783 million cuts to NIH grants tied to diversity was almost entirely consumed by arguments over procedure. Justice Ketanji Brown Jackson wrote it was the latest in a line of “Calvinball jurisprudence” – a reference to a Calvin and Hobbes cartoon – “with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.”
The changes have come with an ironic twist in that the federal power and civil rights laws wielded by Democratic presidents in the 1960s to be equal rights to Blacks have been used by Trump to undo programs favoring diversity.
Big media caves
CBS, ABC, Columbia University and some of Washington D.C.’s most well-connected law firms have paid the Trump administration hundreds of millions of dollars instead of defending fundamental First Amendment rights that have been hard won over the past century and that courts would almost certainly uphold, say First Amendment experts of different political stripes.
CBS’s editing of the 60 Minutes 2024 interview with Kamala Harris and George Stephanopoulos’ characterization of the $5 million jury judgment against Trump for sexually abusing E. Jean Carroll were entirely defensible in court, media lawyers agree. But the corporate owners of those storied news organizations chose to pay tens of millions in settlements and attorney’s fees rather than to contest Trump’s extremely weak claims in court.
Trump’s executive orders against big national law firms who had sued him and employed his critics were also meritless, as numerous federal courts have found when firms have taken them to court.
The executive orders removed legal opponents’ security clearances, denied them access to federal court buildings and threatened to cut off federal contracts. Some of the big firms – first Skadden and Paul Weiss and then Willkie Farr, Milbank, Kirkland & Ellis, Latham & Watkins, A & O Shearman and Simpson, Thacher & Bartlett – capitulated and agreed to provide $100-$120 million in pro bono legal services to the White House. Pro bono legal services are supposed to be for people who are poor.
Paul Weiss said publicly that its work for the Trump administration would be limited “to assist our nation’s veterans, to combat anti-Semitism, and to promote the fairness of the justice system.” Now it turns out the firm and Kirkland & Ellis are defending the Commerce Department for free.
Meanwhile, Ivy League universities such as Columbia University, Brown College and the University of Pennsylvania have bargained away important elements of their academic autonomy, Columbia paid $200 million, eliminated DEI programs, agreed to review curricula and personnel in Middle Eastern studies department, among other concessions that included no masks for demonstrators and a definition of anti-Semitism much broader than set in law.
Brown University is paying $50 million for Rhode Island state workforce initiatives and agreed to abide by Trump policies against trans athletes. The University of Pennsylvania reversed policies on trans athletes. The University of Virginia showed President James E. Ryan the door because the Justice Department criticized him for not making significant enough changes in DEI programs.
Harvard University is fighting in court and won a First Amendment victory in the lower court. But the university is reported to be in talks with the Trump administration on a possible settlement. The New York Times reported in recent days that Harvard took down websites for its Foundation for Intercultural and Race relations and websites for gay and female students, merging them into one. It has removed two leaders for the Center for Middle Eastern Studies after Jewish alums complained of antisemitic programming. Harbard also suspended the relationship with a top Palestinian university after Trump administration complaints and set up new partnerships with institutions in Israel.
WashU Chancellor Martin splits from most universities
In an effort led by Chancellor Andrew Martin of Washington University, a new group of universities has formed to take a compromise approach, maintaining that higher education has lost the confidence of the American people and needs reforms that ensure neutrality.
Washington University has scrubbed DEI from web sites, cracked down on pro-Palestinian demonstrations and closed the transgender clinic at Barnes Hospital after political pressure.
WashU Chancellor Martin has joined with Vanderbilt’s president Daniel Diermeier in taking out a full-page ad in the Wall Street Journal calling for universities to reform themselves. The ad said, “Ideological forces in and outside of campuses have pulled too many universities away from the core purpose, principles and values that made them America’s great engines of learning, innovation and discovery, and the envy of the world.”
The two chancellors formed an invitation only group called the Universities for America’s Future.
Martin explained this way in an interview this month with the Chronicle on Higher Education: “The reason why we’re doing this is because we believe that the future of American higher education is at risk and that it is important for us to engage across the political spectrum, to listen and to understand what the criticisms are, to internalize those criticisms, and then work to improve so we can ultimately regain the trust of the American people.”
As for the university retreat on DEI, Martin said after his State of the University speech in February, “I don’t actually know what DEI is, and, in fact, I think that most people who are out in the world talking about ‘DEI this, DEI that’ don’t have a precise definition of what DEI is.” In May, the university appointed a committee to recommend changes in diversity education.
Princeton University president Christopher Eisgruber suggested at an April meeting of the Association of American Universities, which he chairs, that Martin and Diermeier were playing into Trump’s hands.
As the Atlantic’s Rose Horowitch put it: “(Princeton’s) Eisgruber argued that higher education was facing a politically motivated attack, and that the two men were inadvertently making matters worse by agreeing with President Donald Trump, against the evidence, that the sector had grown illiberal and out of touch with mainstream America. The chancellors, taken aback by the public confrontation, countered that the struggles of a handful of Ivy League schools were dragging down the reputation of America’s heavyweight research institutions. Perhaps, they suggested, it was time for the Ivies’ leaders to step back and let new figures—such as themselves—represent the country’s top universities.”
Martin refused to sign an April letter, now endorsed by 661 university presidents and developed by the American Association of Colleges and Universities (AAC&U) and the American Academy of Arts & Sciences. The letter said, “As leaders of America’s colleges, universities, and scholarly societies, we speak with one voice against the unprecedented government overreach and political interference now endangering American higher education. We are open to constructive reform and do not oppose legitimate government oversight. However, we must oppose undue government intrusion in the lives of those who learn, live, and work on our campuses. We will always seek effective and fair financial practices, but we must reject the coercive use of public research funding.”
Washington University’s student newspaper, Student Life, criticized Martin’s failure to sign the letter, editorializing, “The Trump administration’s attacks on both higher education and freedom of speech are part of a broader attempt to suppress knowledge, civil discourse, and the pursuit of truth. Universities have historically been key sites for activism and resistance — and WashU is no exception.” Saint Louis University was one of the universities that signed.
In addition, almost 800 alums, faculty, staff, students and donors urged Martin to sign the strong letter.
Martin, in his responses to criticism, has said he has long supported university neutrality, which is required for free academic pursuits and adherence to First Amendment values.
Big media
Disney’s ABC agreed to give $15 million to Trump’s library and apologize for George Stephanopoulos’ use of the word “rape” to refer to what Trump did to E. Jean Carroll in a New York department store in the mid 1990s. During a 2024 interview with Rep. Nancy Mace (R-SC), the “This Week” host said that Trump was “liable for rape”
A jury had found in 2023 that Trump had ”sexually abused” her but she had failed to prove he raped her.
Carroll reiterated after the verdict that Trump had “raped” her, and Trump countersued for defamation. Federal Judge Lewis Kaplan threw out Trump’s countersuit saying that Carroll’s rape allegation was “substantially true.”
By responding no to the question of whether Trump raped her, the jury indicated they weren’t convinced Trump had penetrated her with his penis, as is required under New York criminal law, the judge said.
But Kaplan concluded that the jury was convinced that Trump penetrated her with his finger. “It accordingly is the ‘truth,’ as relevant here, that Mr. Trump digitally raped Ms. Carroll,” Kaplan said. Trump denied any sexual encounter ever occurred.
Walt Disney CEO Bob Iger was reported in a leaked comment to be concerned that ABC could lose the case and weaken press protections by allowing an opening for the Supreme Court to overturn the landmark 1964 decision of New York Times v Sullivan. But First Amendment experts say ABC/Disney would have won the case in the Supreme Court and that it was Iger’s surrender that undermined the decision.
The New York Times v. Sullivan standard is that a public official has to prove “actual malice,” meaning reckless disregard for the truth, in order to win a libel case. Kaplan’s dismissal of Trump’s countersuit against Carroll and the judge’s use of the word “rape” to describe Trump’s actions, shows the weakness of the Trump case, lawyers say.
The New York Times decision in 1964 at the height of the Civil Rights Movement is a cornerstone of media protection in that it blocked the legal attempts of segregationist southern politicians to use libel cases to bankrupt national media and keep their cameras away from the brutality unleashed against civil rights protesters by southern sheriffs.
Paramount’s settlement of Trump’s $10 billion lawsuit against “60 Minutes” also resulted from bottom line corporate considerations.
Former 60 Minutes Executive Producer Bill Owens said he wouldn’t apologize for the editing of the Harris answer in a question about the Middle East from Bill Whitaker. Harris gave a long answer, part of which 60 Minutes used during its show and a different part of which was aired the day before as a preview of the show – a standard editing procedure.
In one clip of the interview released by CBS, Harris responded: “Well, Bill, the work that we have done has resulted in a number of movements in that region by Israel that were very much prompted by, or a result of, many things, including our advocacy for what needs to happen in the region.”
In the fuller version of the interview, Harris said: “We are not gonna stop pursuing what is necessary for the United States to be clear about where we stand on the need for this war to end.”
“Face the Nation,” broadcast an excerpt from Harris’s interview “that used a longer section of her answer than that on 60 Minutes,” said the network. “Same question. Same answer. But a different portion of the response,” it said, adding that it aired Harris’s shorter answer because it “was more succinct.”
The Center for American Rights filed a complaint with the FCC last fall saying this was a “deliberate news distortion.” The FCC dismissed the complaint in early January, but Trump’s new FCC chair, Brendan Carr, reopened the case and demanded CBS turn over the full transcript. CBS published the transcript of the interview earlier this year.
Trump – who refused to be interviewed by 60 Minutes at the time it interviewed Harris – sued Paramount for $10 billion for the “news distortion.”
Shari Redstone, Paramount’s controlling shareholder, approved a settlement because she could clear billions of dollars on the sale of Paramount in a deal with Skydance, backed by the billionaire Larry Ellison.
Redstone told The New York Times she was upset by CBS’s coverage of Gaza, which she thought was too critical of Israel. To get the settlement, Paramount paid $16 million toward Trump’s eventual presidential library and covered his legal costs. Fox News reported later that there was also a “side deal” worth upward of $20 million in free advertising, public service announcements or other programming friendly to Trump.
The New York Times editorialized as the settlement was taking shape: “A settlement would be an extraordinary concession by a major U.S. media company to a sitting president, especially in a case in which there is no evidence that the network got facts wrong or damaged the plaintiff’s reputation.”
Mark Sableman, a top media lawyer and partner at Thompson Coburn in St. Louis, explained how the media’s refusal to settle meritless defamation cases – even at great cost – had shown journalists that worthy reporting would be supported. He wrote in an email:
“For many years, most major news organizations vigorously defended meritless cases, even when the costs of defense were greater than settlement costs. They did so believing that this was the best strategy in the long run. I believe this strategy worked well.”
Ironically, even as Redstone was negotiating away CBS’s legal defense, “Good Night and Good Luck” was playing on Broadway. It dramatizes Edward R. Murrow’s courageous confrontation of Sen. Joseph McCarthy during the Red Scare of the 1950s.
Big law
This past spring Trump issued executive orders directed at New York and Washington law firms he considered unfriendly. Those employing people such as special counsels Jack Smith and Robert Mueller were targeted.
A March executive order, entitled “Preventing Abuses of the Legal System and the Federal Court”, targeted lawyers and law firms who had filed “frivolous, unreasonable, and vexatious litigation” against the administration, as judged by the attorney general. The memo and executive orders against individual law firms included revocation of security clearances and preventing any company that uses such a firm from getting federal contracts.
Nine big law firms – mostly from New York – settled with Trump and are providing a total of almost $1 billion in pro bono work. Above the Law, a legal publication, refers to them as the Surrendergate Nine. Four firms – including Perkins Jenner and Wilmer – have contested Trump’s order and all four have won in court so far, although the White House is appealing.
Meanwhile the American Bar Association urged everyone in the legal profession to stand up against the Trump’s “efforts to undermine the courts and the legal profession” and deans of about 80 law schools signed a joint letter condemning Trump’s actions. They said, “Punishing lawyers for their representation and advocacy violates the First Amendment and undermines the Sixth Amendment.”
WilmerHale, one of the law firms that challenged the executive orders issued by Trump hired a leading conservative lawyer, Paul Clement, to represent them. Clement said that this case was “absolutely critical to vindicating the First Amendment, our adversarial system of justice, and the rule of law.”
In response to the lawsuit, U.S. District Judge Richard Leon issued a temporary restraining order blocking parts of the executive order stating in his opinion that “[t]here is no doubt this retaliatory action chills speech and legal advocacy, or that it qualifies as a constitutional harm.”
Big education
Elite universities aren’t arguing that WashU and Vanderbilt are guilty of surrender in their formation of the Universities for America’s Future. But they do suggest they are giving comfort to the Trump administration’s attack on universities where he has used the levers of presidential power to force the payment of huge fines, cut off federal funding and sharply reduce the flow of international students who make up a large part of graduate student bodies.
Gregory P. Magarian, a First Amendment expert and professor on the law faculty with which Martin still is affiliated, would like to see Martin clarify what he means by university neutrality. He thinks the term is empty.
“I understand that universities don’t have the same missions as political parties or activist groups,” he wrote in an email. “Universities generally avoid wading into partisan politics, among other controversies, and that’s appropriate. But the mission of a university entails confronting all sorts of controversies.”
Many universities, for example, divested from South African investments during Apartheid, for example. 155 universities had divested from South African companies by 1985 and by 1990, 200 American companies had stopped doing business there – actions that contributed to the fall of Apartheid.
Magarian also says that Martin has enforced a Palestine exception to free speech.
“What we’ve observed with these Palestine protests measured against any norm of free speech — in the case of public universities, the actual First Amendment — is something that I’ve rarely seen before,” Magarian said last year during congressional hearings on pro-Palestinian protests.
“You’ve got congressional committees browbeating and driving out of their jobs university presidents for the sin of not punishing students who say things like ‘from the river to the sea Palestine will be free.’ The notion that that slogan is outside the First Amendment’s protection, or outside ordinary norms of free speech, is a completely crazy notion that is textbook day one, free speech stuff. If someone is out on the street yelling ‘Kill all the Jews,’ that’s a different conversation.”
This exception is creating a new wave of McCarthyism as too many people are deliberately attempting to weaponize false connections between dissent and terrorism, he said. In addition to the term terrorist and instead of the label of communist, critics are calling pro-Palestine speech and criticism of Israel antisemitic.
“There’s a lot of rhetoric from a certain segment of people who support Israel saying, ‘If you’re participating in these protests, you are a terrorist, or you are a supporter of terrorists,’” he said. “That is functionally identical to […] being in the 1950s and saying [if you are] expressing commitments to any kind of social or economic egalitarianism, you’re a communist.”
