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Trump鈥檚 stated promise: 鈥楽top all government censorship鈥 and his free speech Executive Order 鈥斅燜irst Amendment News 454

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Unprecedented.

Let鈥檚 begin with President Donald Trump鈥檚  (Jan. 20), if only to contrast it with last week鈥檚 condemnation of his lawsuit against J. Ann Selzer, the Des Moines Register, and its parent company Gannett (see also FAN 451449 and 436). 

Ready? Here it goes: 

After years and years of illegal and unconstitutional federal efforts to restrict free expression, I will also sign an executive order to immediately stop all government censorship and bring back free speech to America.

Never again will the immense power of the state be weaponized to persecute political opponents, something I know something about. We will not allow that to happen. It will not happen again. Under my leadership, we will restore fair, equal, and impartial justice under the constitutional rule of law.

Never againIt will not happen againStop all government censorship

And there鈥檚 more: When it comes to free speech, all views will be treated with 鈥渋mpartial justice.鈥 Against that promissory note, let us turn to his unprecedented executive order as discussed below.

Executive Order: Jan. 20, 2025

Screenshot of Trump executive order on free speech and government censorship

By the authority vested in me as President by the Constitution and the laws of the United States of America, and , it is hereby ordered as follows:

What follows is a brief description of the  along with some preliminary comments.

Section 1. Purpose

This section opens with an attack on the Biden administration鈥檚 alleged 鈥渢rampl[ing of] free speech rights鈥 when it comes to 鈥渙nline platforms.鈥 Such abridgments, it is asserted, were done in the name of combating 鈥渕isinformation,鈥 鈥渄isinformation,鈥 and 鈥渕alinformation鈥 in order to advance the Biden administration鈥檚 鈥減referred narrative.鈥&苍产蝉辫;

Note at the outset that this section is primarily addressed to reversing the Biden administration鈥檚 apparent censorship of online expression. Even so, there is a generalized statement: 鈥淕overnment censorship of speech is intolerable in a free society.鈥

Keep that in mind when it comes to what is set out in Section 4 below.

Section 2. Policy

This section focuses on four commitments: (i) securing free speech rights of all 鈥淎merican[s]鈥; (ii) mandating that 鈥渘o [federal] agent engages in or facilitates鈥 abridgments of free speech; (iii) ensuring that no 鈥渢axpayer resources鈥 are used to abridge free speech; and (iv) identify and correct any past federal abridgments of free speech.

Unlike Section 1, the explicit focus of this section is not confined to any free speech abridgments committed by the previous administration. The focus is on securing free speech rights of 鈥渃itizens.鈥 Hence, the policy is directed to an affirmative obligation of the Executive branch to protect free speech rights. The operative action words are 鈥渟ecur[ing],鈥 鈥渆nsur[ing],鈥 and 鈥渋诲别苍迟颈蹿测摆颈苍驳闭.鈥

Thus, there is a duty to ensure that no federal officers are used or taxpayer dollars expended in violation of the Speech Clause of the First Amendment. Also, unlike Section 1, much of Section 2 applies to all free speech rights and not those confined to social media. There is also a promise to investigate for any and all existing abridgments of free speech committed by 鈥減ast misconduct by the Federal Government.鈥

Section 3. Ending Censorship of Protected Speech

Like Section 1, this section focuses on the actions of the past administration (i.e., abridgments committed 鈥渙ver the past four years鈥). This section, unlike section 2, explicitly applies to federal departments and agencies, though it also applies to federal officers, agents and employees. Such agencies and departments must comply with the requirements of Section 2.

The second portion of this section deals with the investigative powers of the attorney general working 鈥渋n consultation with the heads of executive departments and agencies.鈥 Again, this investigation is confined to wrongs committed by the past administration. Following such investigations, a 鈥渞eport鈥 shall be submitted to the President suggesting 鈥渞emedial actions.鈥

Much of this section seems repetitive of what is set out in Section 2, save for the references to federal departments and agencies and the need for investigation followed by a report to the President. Note that under Section 3, remedial action is suggested, whereas under Section 4, per this Executive Order, remedial action against the United States and its officers is prohibited.

Section 4. General Provisions

In order to appreciate the import of this clause, it is best to quote the final provision (sub-section (c) it in its entirety (with emphasis added):

This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The opening provisions of this Section refer to authorizations of grants of executive power. The Order is to be implemented consistent with the 鈥渁pplicable law and subject to the availability of appropriations.鈥

Importantly, While the First Amendment is a prohibition against the federal government and all its officers, this Executive Order:

  1. applies to free speech wrongs committed during 鈥渢he last 4 years鈥 or 鈥減ast misconduct by the Federal Government鈥 or abridgments occurring 鈥渙ver the last 4 years,鈥 though there is a passing mention of securing the free speech rights of all 鈥淎merican[s].鈥&苍产蝉辫;
  2. Yet even as against such past alleged free speech wrongs, the sole remedy is by way of corrective action taken by the Executive Branch. 
  3. If such corrective action, or any other actions taken by Executive officials in pursuance of this Executive Order, themselves abridge First Amendment rights, there is no independent remedy secured by the Order.

Related

  • Alex Abdo, 鈥,鈥 Just Security (Jan. 21)
  • Eugene Volokh, 鈥溾 The Volokh Conspiracy (Jan. 21)
  • Josh Blackman, 鈥,鈥 The Volokh Conspiracy (Jan. 21)
  • 鈥溾 First Amendment Watch (Jan. 21)
  • 鈥,鈥 First Amendment Watch (Jan. 21)
  • 鈥,鈥 First Amendment Watch (Jan. 15)
  • Nikki McCann Ramirez, 鈥,鈥 Rolling Stone (Aug. 26)
  • George Freeman, 鈥,鈥 Media Law Resource Center (August 2024)
  • 鈥,鈥 ACLU (July 11)

FIRE weighs in with its own free speech recommendations to the President

Below are the four general categories of recommendations made (see link above for specifics):

  1. Support the Respecting the First Amendment on Campus Act
  2. Address the abuse of campus anti-harassment policies
  3. Rein in government jawboning
  4. Protect First Amendment rights when it comes to AI

鈥淎s president, Trump inherits the privilege and the obligation to defend the First Amendment rights of all Americans, regardless of their viewpoint 鈥 and FIREstands ready to help in that effort.鈥

Justice Ketanji Brown Jackson in free expression mode at the Inauguration?

Justice Ketanji Brown Jackson at Trump Inauguration in 2024 wearing a distinctive collar adorned with cowrie shells, which are believed to offer protection from evil.
Justice Ketanji Brown Jackson at the inauguration of Donald Trump on Jan. 20, 2024. (Imagn Images)

According to , such 鈥渁 distinctive collar adorned with cowrie shells . . . are believed to offer protection from evil in African traditions.鈥 (See also, Josh Blackman, 鈥,鈥 The Volokh Conspiracy (Jan. 21))

Excerpts from Virginia Court of Appeals decision in Patel v. CNN, Inc.

Kash Patel at the 2023 Conservative Political Action Conference
Kash Patel, seen here at the 2023 Conservative Political Action Conference, is President Donald Trump's nominee to head the FBI. (Consolidated News Photos / Shutterstock.com)
  • Eugene Volokh, 鈥,鈥 The Volokh Conspiracy (Jan. 21)

An excerpt from today's Virginia Court of Appeals decision in , decided by Judge Rosemarie Annunziata, joined by Judge Vernida Chaney (the opinions weigh in at over 12,000 words, so I only excerpt some key passages).

Abortion picketing case lingers on docket

The cert. petition in the abortion picketing case, with  as lead counsel, has been on the  since July 16 of last year. It has been distributed for conferences seven times, the last being Jan. 21. In his petition, Mr. Clement (joined by ) explicitly called on the Court to 鈥渙verrule Hill v. Colorado.鈥&苍产蝉辫;(See FAN 433, July 31, 2024))

Paul Clements and Erin Murphy
Paul Clements and Erin Murphy

More in the News

  • 鈥,鈥 Institute for Free Speech (Jan. 21)
  • Josh Blackman, 鈥溾 The Volokh Conspiracy (Jan. 21)
  • Eugene Volokh, 鈥,鈥 The Volokh Conspiracy (Jan. 21)
  • 鈥,鈥 The Boston Globe (Jan. 20)
  • Jaclyn Diaz, 鈥,鈥 NPR (Jan. 15)

2024-2025 SCOTUS term: Free expression and related cases

Cases decided 

  •  (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
  •  (鈥淭he petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).鈥)
  • (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners鈥 First Amendment rights.)

Review granted

  • (argued Jan. 15)

Pending petitions

Petitions denied

Last scheduled FAN

FAN 453: 鈥鈥楾he lawsuit is the punishment鈥: Reflections on Trump v. Selzer

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIREas part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article鈥檚 author(s) and may not reflect the opinions of FIREor Mr. Collins.

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