What to watch for: free speech and the free press
Assessing the MAGA threat to the First Amendment
Donald Trump has never had much tolerance for the free press. Throughout his first term he demanded we “open up the libel laws” to make it easier to sue journalists for unflattering coverage — which, more than anything else, reveals that he doesn’t really understand how any of this works.
Even if he were able to persuade some red states to pass libel laws more hostile to the press, and even if he could get the Supreme Court to uphold such laws, few public figures would be hit harder by those laws than Donald Trump, who regularly defames his perceived enemies .
During his first term Trump also threatened to withhold federal contracts and funding, and to revoke tax incentives from his critics. He repeatedly threatened such repercussions against Jeff Bezos and his various businesses because the Washington Post published investigations into Trump’s incompetence, corruption, and abuse of power. Those threats in and of themselves were likely unconstitutional, even if Trump had never followed up on them.
But the threats also had their intended effect. Bezos intervened to stop the paper from endorsing Trump’s opponent last month, and since the election the billionaire has been tripping over himself to heap praise on the incoming president.
Trump has since only doubled down threatening the media. Over the course of his 2024 campaign he threatened to strip legacy broadcasters of their licenses (it’s not clear what that would mean, given that broadcast is all but obsolete), and his surrogates have pushed the absurd idea that unflattering coverage, “biased” debate questions and fact checking, and the edits 60 Minutes made in its interview with Kamala Harris amounted to “illegal in-kind campaign contributions” that could bring criminal liability.
Trump now appears ready to make good on many of his campaign threats. Here’s a quick rundown of what to look for.
Civil actions against journalists
We can start with Brendan Carr, a Project 2025 contributor and Trump’s nominee to head the Federal Communications Commission.
Carr has already suggested that the FCC should investigate CBS over the 60 Minutes interview, as well as NBC’s invitation to Harris for a cameo on Saturday Night Live. Carr also wants to impose a partisan, contradictory regulation regime on social media platforms that would basically make it impossible for those platforms to exclude Nazis and white supremacists, harassment, and other objectionable content. It would basically turn every social media site into the cesspool that is X.
Carr’s censorious blueprint is based on the theory that the owners of social media platforms have no First Amendment right to run their operations in a way that reflects their own beliefs and values. Carr and his ilk argue that social media sites are the “new public square.” But public squares are, well, public. You’re free to stand on your soapbox and pontificate to your heart’s content. Social media sites are companies. They require servers, paid staff, and other expenses. By Carr’s logic, if a private bookstore or coffee shop also became known for hosting political speakers, they’d be required to host and provide a platform for anyone else who wanted to speak, whether or not the owners agreed with that person’s views.
Trump’s plan to make the Department of Justice his personal, publicly-funded law firm will also have First Amendment ramifications. We’ll likely see him use government personnel and public resources to pursue his personal vendettas against media outlets. Don’t be surprised to see the DOJ or White House legal counsel use taxpayer resources to pursue, for example, the accusations against CBS, Washington Post, and New York Times, in which Trump claims to have suffered Dr. Evil-like damages.
Trump will likely look to red states for other ideas. Florida Republicans have tried to follow Trump’s lead by “opening up” the state’s libel laws to make it easier to sue for defamation. Their aim is to provide a vehicle for the Supreme Court to overturn NYT v. Sullivan. So far, they haven’t been able to get those bills passed. But they’re trying. And at least three Supreme Court justices seem open to the idea.
Both Missouri Attorney General Andrew Bailey and Texas Attorney General Ken Paxton have opened investigations into the advocacy group Media Matters over its report about paid ads from mainstream companies appearing next to Nazi content on X. To be clear, the Media Matters report is journalism, full stop, and these attempts to silence them to win favor with Elon Musk ought to be as embarrassing as they are illegal (they’re both).
Even if none of the Trump administration’s retributive civil actions hold up in court, as we’ve seen with Musk’s own absurd lawsuit against Media Matters, Trump-friendly judges can make investigations and lawsuits as cumbersome and costly as possible. The mere threat of retaliation will likely intimidate some outlets from covering Trump critically.
I would hope good journalists and editors would continue to pursue important stories regardless of these threats, but the capitulation we’ve already seen from Bezos, as well as from the corporate owners of Gannet, the L.A. Times, and other papers, bodes ill for the independence of news desks.
Criminalizing journalism
Trump and his allies have made clear that they also plan to target specific journalists.
It was only about a year ago that then-Senator JD Vance sent a letter to the DOJ on official letterhead calling for a criminal investigation of journalist Robert Kagan because of a column Kagan wrote for the Washington Post. Ironically, that column was about Trump’s authoritarianism.
It was arguably the single most censorious act any member of Congress has undertaken in years. The same JD Vance would later deflect Tim Walz’s debate question about January 6th by decrying . . . “censorship.”
We know that the first Trump administration was already targeting journalists who cover immigration and the border. Officials kept lists of reporters who covered Trump’s immigration policy skeptically, and singled them out for “secondary screening” when they left and attempted to reenter the country.
U.S. Customs and Border Protection officials would later say they were considering opening a criminal investigation into some journalists for possible violations of the federal law that makes it illegal to “encourage or induce an alien to enter the United States.” This is the same law under which some immigration activists have been criminally prosecuted for leaving water out to migrants crossing the dessert.
According to internal records released after a subsequent lawsuit and published by Reporters Committee for a Free Press, USCBP agents began surveilling and keeping dossiers on journalists they believed to be hostile, which one agent said in an email would be a “good start toward a case against them hopefully.”
On at least one occasion, an agent attempted to blackmail a journalist by threatening to release personal information unless she revealed the identity of a source.
From those internal communications, it seems safe to say that immigration hard-liners — the people who will be in charge in the next Trump administration — seem to think that critical coverage of Trump’s immigration policy in and of itself may amount to “encouraging” or “inducing” people to cross the border illegally. The Supreme Court has since narrowed the law those officials were relying upon, but that won’t necessarily stop them from targeting journalists again.
The Biden administration made it more difficult for federal law enforcement to seize phone records and other communications of journalists, but Trump is expected to rescind those policies (Project 2025 also calls for them to be rescinded).
In my previous post about how Trump may weaponize the federal government, I wrote that if he attempted to push out Christopher Wray and appoint Kash Patel to lead the FBI, it would be his most dangerous move since the election. He of course since announced that he plans to do exactly that. Patel, who published an actual enemies list in his book, has openly promised to sue or criminally prosecute journalists for “crimes” like fact checking Trump’s lies about the 2020 election.
Even if he doesn’t go so far as to bring criminal charges, Patel could easily direct the FBI to target other journalists covering other issues the way USCBP targeted those who cover immigration. He’s all but promising to do it. And of course a criminal investigation that brings no charges is still disruptive, oppressive, and can be financially devastating.
One of the more foreboding signs that Trump tends to pursue journalists is his effort to defeat the PRESS Act. The long overdue law that would protect journalists in two ways: First, it would bar the federal government from spying on journalists without cause. Second, it would create a federal shield law to protect journalists from being jailed for refusing to reveal their sources.
The House unanimously passed the bill in January, but since the election Trump has been browbeating Senate Republicans to kill it. It is now expected to die in the Senate.
If the courts don’t intervene in these initial efforts to target journalists, expect the administration to get bolder. This is why, as with corporations and business leaders, we’re seeing previously adversarial media personalities grovel before Trump — and even Patel. They’re pretty clearly afraid of them.
I won’t name names.
Protest
Trump has made clear for decades that he has little tolerance for protest.
We know from former aides that during his first term, Trump badly wanted to invoke the Insurrection Act and bring in the military to end the George Floyd demonstrations. We know that on more than one occasion he asked his aides why protesters couldn’t just be shot. We know that he has privately praised dictators in China, Venezuela, and Turkey specifically for their ruthless crackdowns on protest.
Trump was prevented from following through on his worst instincts the first time around by people like former Joint Chiefs Chairman Mark Milley and Defense Secretary Mark Esper. In response, Trump publicly suggested that Milley is a traitor who should be executed.
If we see protests after the inauguration, Trump will quickly bring in the military. How the public reacts to the ensuing violence will probably determine how violent he’ll get going forward. But Trump and the people who will run his second administration have vowed to make sure there are no Milleys or Espers this time around.
Trump has made that clear with his nomination of Pete Hegseth to run the Department of Defense. In one of his books, helpfully titled American Crusade, Hegseth warned that if Joe Biden won the 2020 election, Trump supporters would turn to violence, which he argued would be justified. He then wrote: “The military and police, both bastions of freedom-loving patriots, will be forced to make a choice. It will not be good. Yes, there will be some form of civil war.”
Hegseth’s 2020 book exhorts conservatives to “mock, humiliate, intimidate, and crush our leftist opponents”, to “attack first” in response to a left he identifies with “sedition”, and he writes that the book “lays out the strategy we must employ in order to defeat America’s internal enemies . . .
Elsewhere in American Crusade, he writes: “The hour is late for America. Beyond political success, her fate relies on exorcising the leftist specter dominating education, religion, and culture – a 360-degree holy war for the righteous cause of human freedom.”
This is the man Trump wants to oversee the entire U.S. military. Hegseth’s nomination is now in peril, but because of allegations of sexual misconduct and alcohol abuse. His advocacy for using the military against Trump’s domestic opponents in a “holy war for the righteous cause of human freedom” hasn’t been much discussed.
Russ Vought, Trump’s pick to run the Office of Management and Budget, was also an architect of Project 2025. He’s also an avowed Christian nationalist. The Washington Post reported last year that Vought will advise Trump to invoke the Insurrection Act immediately upon his inauguration and send the military to silence any protests. The paper reported that Vought’s think tank has been drafting the legal language they believe will allow Trump to invoke the law, along with draft executive orders for other unconstitutional policies, from a “back door ban” on pornography to a Christian litmus test for arriving immigrants.
Expect the Trump administration to defend or, with the help of a Republican Congress, even try to federalize some of the anti-protest legislation we’ve seen from red state lawmakers — policies like “buffer zones” in which members of the public are forbidden from recording law enforcement, limiting the criminal and civil liability of people who strike protesters with their cars, and criminalizing consumer boycotts (but only those that legislators find personally objectionable).
I think we’re also likely to see more Republican state legislatures — and possibly Congress — take aim at charitable bail funds. Expect to see federal and state prosecutors go after the people who operate these funds under racketeering and money laundering laws, as we’ve already seen in Georgia. Republicans will claim that these funds are fronts for terrorist groups while also attempting to expand the definition of terrorism to include “antifa,” pro-Palestine organizations, and activist groups like Black Lives Matter.
The Seventh Circuit has already upheld an Indiana law that essentially prohibits charitable bail organizations, on the grounds that posting bail isn’t political speech. Given that these groups’ very existence is a protest against the current system, that’s a risible claim.
Charitable bail funds have a long and inextricable link to protest, dating back to the civil rights movement. As we saw after the pro-Palestine protests, in most jurisdictions a large percentage of those arrested were never charged. Prohibiting charitable groups from posting bail would mean those who are wrongly arrested could spend days or weeks in jail before being released. It imposes a heftier cost on dissent.
It’s worth pointing out here that the Democrats haven’t covered themselves in glory on this front, either. Their bipartisan support for the violent crackdowns on and unlawful prosecutions of pro-Palestine protesters around the country — activists Trump has said he’ll also deport over their beliefs — have set an ominous tone for what may come.
Other threats
After decades of complaining (with some merit!) about leftist hegemony on college campuses, conservative activists and Republican governors have fought back with the brute force of state coercion. Republican legislatures in dozens of states have passed bills restricting academic freedom, from banning entire fields of study at state colleges and universities to prohibiting speakers from discussing certain topics, to even barring certain words and phrases from appearing on school websites. As with every other threat to speech we’ve discussed so far, we’re already seeing too many schools preemptively surrender. Just last month, the University of Alabama threatened a professor with termination for organizing a protest against a particularly censorious bill in the state legislature.
Many of these state laws banning DEI and CRT on campus were modeled after an executive order Trump signed in 2020. There’s ample reason to think the new Trump administration will federalize this right-wing holy war on academic freedom. MAGA figures like JD Vance have cited Hungarian President Victor Orbán’s hollowing out of and taking over academia as inspiration. Project 2025 calls for withholding student loan and federal research funding from colleges and universities unless they adopt policies like eradicating DEI programs and prohibiting gender studies, critical race theory, LGTBQ studies, and other subjects that give polemicists like Chris Rufo the vapors. Same for federal contractors, recipients of federal research grants, and anyone else who gets any sort of federal subsidy.
MAGA also seems ready to embrace the idea of compelled speech. Carr, along with several state governors and AGs want to force social media sites to host content they and their users find objectionable. Texas Attorney General Ken Paxton recently announced he’s opening a separate investigation into companies that don’t want to advertise on racist and far-right social media sites, either. Apparently, it’s a crime to not give Elon Musk your advertising dollars. Republican attorneys general are also using antitrust laws to silence corporate activism on issues like climate change.
Paxton and two dozen other Republican AGs also filed yet another anti-speech lawsuit, this one against against Yelp, for publishing information (that happened to also be true) that he believes to be critical of crisis pregnancy centers. As with the attack on Media Matters, the AGs are trying to silence the site under consumer protection laws. As the Reporters Committee for a Free Press warns, “The application of consumer protection laws in the context of editorial decisions — by any private speaker — is dangerous. And Texas has articulated no limiting principle that would preclude the application of the state’s consumer protection law against members of the press on a similar theory.”
Project 2025 also calls for prohibiting a list of terms and phrases from being published in any federal document. Incredibly, it also calls for retroactively removing those terms from existing documents. In the introduction to the blueprint, former Heritage head Kevin Roberts calls for the elimination of the terms “diversity, equity, and inclusion (“DEI”), gender, gender equality, gender equity, gender awareness, gender-sensitive, abortion, reproductive health, reproductive rights,” and, in a particularly Orwellian twist, “any other term used to deprive Americans of their First Amendment rights.”
It’s striking just how quickly the right shifted from complaining about soft censorship and content moderation on social media sites to sheer joy over the prospect of using state power shutting down dissent and silence critics. After Musk purchased Twitter, he converted the enormously influential platform into a bustling Nazi bar and far-right arm of the Trump campaign. The site is all but unusable now. For all the right’s complaints about throttling and “shadow bans,” Musk’s prioritization of accounts that pay him has effectively shunted anyone who isn’t echoing Musk’s own politics to the margins. It also means the top replies to every post tend to be racist, bigoted, trollish, or grievance-fueled garbage.
More recently, Musk has been joking/not joking about purchasing MSBNC and converting it into yet another right-wing outlet. This — along with the editorial interference of newspapers owners who are worried about government sanctions of their other businesses, is also classic authoritarian maneuvering. In Russia, Putin quickly realized that he could control newspapers and media outlets two ways — by pressuring their owners’ other business interests, and just by having his oligarch cronies simply buy them up and convert them into government mouthpieces. (He soon found it was easier to just arrange for critical journalists to fall out of windows — a habit Trump has had difficulty criticizing.) The same thing is happening in Hungary under Orbán. Setting aside whether or not Musk could actually buy MSNBC, his mere mention of the idea had right-wing personalities salivating at the idea of subverting a leading left-of-center outlet into the right-wing echo chamber.
That glee stems from a belief that conservative voices have been silenced by left-wing control of the media. This is self-evidently false. It is true that those newsrooms that still attempt to be accurate and fair — to deliver “straight news” — are disproportionately left-leaning. But it’s also true that the right has successfully created its own media ecosystem that’s wholly independent of those newsrooms, and can now bypass them entirely to get information to its audience. The sheer giddiness on display from the people about to take over the government at the prospect of snuffing these newsrooms out is alarming.
Adding to the problem, Project 2025 also calls for targeting public broadcasting. That’s a longtime conservative hobbyhorse, but it would do the most harm to local public radio — not the national NPR programs that irk conservatives — and it will hit hardest in areas that lack daily newspapers.
That would leave only local TV to report the news in these areas. And local TV news is quickly being subsumed into the right-wing media bubble. Over the last few years, Elon Musk has repeatedly posted on X a video montage in which dozens of local news anchors use the same exact same wording at about the same time. The clear takeaway is that they were all given a script they were told to read. Musk posts the video as proof that the liberal media are literally all reading from the same script.
But that isn’t what’s happening in the video. Instead, all of the anchors depicted in it work for the local TV mega-corporation Sinclair. It’s is a massive right-wing conglomorate that owns around 200 local TV stations, donates almost exclusively to Republican candidates, and infuses its coverage with conservative (or more accurately, Trumpian) talking points.
In above video Musk keeps posting, the anchors were given a script to read that parroted Donald Trump’s complaints about the "legacy news media.” And it’s far from the only time Sinclair anchors have been caught reading from the same script.
In 2016, the company struck a deal with the Trump campaign — in exchange for exclusive access, it would run interviews with Trump and campaign officials on its stations without any commentary or fact-checking. A couple years later, Sinclair’s chairman met with Trump at the White House in 2018 and told him “We’re here to deliver your message.”
In other words, the video is an example of the right doing precisely what Musk falsely claims it proves the left is doing. It’s a right-wing media conglomerate with enormous reach that forces its local stations to run right-wing programming. Sinclair has made its stations run commentaries by Trump aide Boris Epshteyn, as well as commentary and a special hosted by Sebastian Gorka, who managed to get booted from the first Trump administration for being too extreme (Trump has since announced that Gorka will be a senior “terrorism advisor” in his new administration).
Musk surely knows by now that the video is not what he claims it to be. He keeps lying about it anyway to further his narrative that there’s a left-wing stranglehold on the media, and that only government force — the force of a government he now has enormous influence over — can break it.
Finally, there’s the threat to nonprofits. Here, too, the Democrats have utterly failed to prepare for the gravity of the threat. Last month, 15 House Democrats joined Republicans to pass a bill called the Stop Terror-Financing and Tax Penalties on American Hostages Act. That’s far fewer than originally supported the law, which was introduced to target groups who advocate for Palestine. It was still 15 too many. The sweeping law would give the Treasury Secretary the power to unilaterally declare any nonprofit a “supporter of terrorism.” Trump could effectively shut down nonprofits for the flimsiest of reasons, from the ACLU to Planned Parenthood to ProPublica. Beyond the screaming unconstitutionality and general un-Americanness of it all, it’s just a breathtakingly stupid policy for any Democrat to support, especially just months before a man hellbent on vengeance and retribution takes over the White House.
Here’s some “anecdata” from my own reporting: In recent weeks the heads of two nonprofit organizations have hedged after agreeing to let me interview them for stories I’m working on. These nonprofits are in two very different policy areas. Both said that since the law passed the House, they’ve been advised against speaking out against the new administration to avoid becoming a target.
We hear a lot from the right about “self-censorship” — the idea that people are increasingly afraid to express unpopular views. But in most contexts cited by the right, those consequences people fear are other forms of speech — ridicule, criticism, the loss of customers, alienation of friends, relatives, and coworkers, or being called a bigot.
The self-censorship we need to worry about when the threat of government retaliation prevents people, media outlets, and advocacy organizations from expressing themselves. Trump hasn’t yet taken office, and it’s already happening here.
Given the speed of capitulation so far, the US will be comparable to Singapore by 2026 in terms of political freedom. But with lots more violence from MAGA actors, confident of immunity.
Wouldn’t making it easier to sue for defamation also make it easier to sue Trump and FOX News and Elon Musk and other mendacitators who are frequently engaging in character assassination of their critics with untruths? Of course I am assuming the courts will be engaging in blind justice which is a questionable assumption. I imagine Trumpian judges will be kinder to suits from him and his supporters than to the resistance.