The Trump administration’s attacks on constitutional rights include those on free speech, freedom of the press, and freedom of assembly that are protected by the First Amendment. Recent incidents illustrate the breadth of these actions. Last month, peaceful protestors, including a U.S. senator, were tear-gassed outside Delaney Hall, an ICE detention facility in Newark, New Jersey, that he and others have criticized for inhumane conditions. In April, FBI Director Kash Patel sued The Atlantic over reporting on behavior he exhibited that multiple colleagues deemed a threat to national security, and the FBI began investigating the reporter. Last week, ICE agents served a Syracuse poll worker a formal complaint for a social media post she made last January criticizing the ICE agent responsible for killing Reneé Good, which is protected free speech. These threats come at a time when the United States is undergoing the most pronounced democratic decline in its history, according to the Varieties of Democracy Institute (V-Dem).
At the same time, that very overreach by the Trump administration has inspired the emergence of a broad front defending free expression, one reaching across partisan and sectoral lines. These otherwise “unlikely allies” may strongly disagree on policy but recognize shared threats to constitutional freedoms. Republican Governors Phil Scott and Kevin Stitt in January shared with Democrats an abhorrence of the shooting of Alex Pretti in Minneapolis and expressed opposition to uncontrolled federal ICE and DHS deployments against immigrants. Businesses are viewing crackdowns on immigration and on peaceful protesters as disruptions to the economy. Libertarians and free speech absolutists share with left-leaning immigration activists a revulsion to masked federal officers detaining the administration’s critics. Even conservative outlets like Fox News and Newsmax refused to sign the Pentagon’s new restrictions on journalists covering the Defense Department.
As the November midterm elections approach, pressures on the First Amendment risk distorting coverage of the administration’s abuses and weakening democratic accountability. Ongoing attacks on civil society and media organizations underscore these risks. Last month, the Department of Justice brought an unprecedented criminal indictment against the Southern Poverty Law Center, a nonprofit that campaigns against hate and has long exposed right-wing extremism and criticized the Trump administration’s policies and practices. The Guardian newspaper’s general counsel recently lamented that “the question [is] no longer what ma[kes] for better journalism, but what minimize[s] legal exposure,” warning that “editorial judgment itself is being treated as a liability.”
An unlikely alliance of free speech defenders has emerged not only out of principle but also out of self-interest. Indeed, people taking a stand have different and oftentimes personal goals — political autonomy, unfettered markets, constitutional consistency, dignity for immigrants — all of which are under threat. This burgeoning network highlights the power and potential of large, diverse groups of individuals who come together to reject unconstitutional abuses of power. It is also a hopeful sign of a coalescing of forces that will be necessary to turn the authoritarian tide.
Attacks on First Amendment Rights Backfire
Attacks on free expression have weakened the Trump administration in multiple ways, not only mobilizing its opponents but also exposing growing fractures within the MAGA coalition. Federal forces withdrew from Minneapolis largely due to the cross-partisan outrage generated by their actions against peaceful protesters. This was evident, for example, in Republican lawyer Chris Madel of Minneapolis ending his gubernatorial bid in response to “the national Republicans’ stated retribution on the citizens of our state.” Or, after Alex Pretti’s killing, state Representative Jeremy Faison, a Tennessee Republican, expressed that “Showing up at a protest is very American. Showing up with a weapon is very American.” The Minnesota Gun Owners Caucus said, “Every peaceable Minnesotan has the right to keep and bear arms – including while attending protests, acting as observers, or exercising their First Amendment rights.” While the topic of armed protestors is controversial, the broad opposition to governmental violations of assembly rights is noteworthy.
Apart from threats to lawful protest, criticism from across the ideological spectrum is intensifying as Federal Communications Commission (FCC) Chair Brendan Carr continues to use his office to target Trump’s opponents. After Jimmy Kimmel made a joke about Melania Trump, the FCC moved to review ABC’s broadcast licenses, which prompted U.S. Senator Ted Cruz, a Texas Republican, to complain that the FCC was “operat[ing] as speech police.” Similarly, and in response to Carr warning broadcasters about their Iran War coverage earlier this year, Republican U.S. Senator Ron Johnson of Wisconsin expressed his dislike of “the heavy hand of government, no matter who’s wielding it.” These emerging fractures coincide with cases of judges appointed by Republican presidents such as Ronald Reagan rebuking the administration for violating First Amendment rights.
Meanwhile, and for all the pessimism about “capitulation” by public and private institutions, the Trump administration’s actions have provoked divergent responses. Although several elite law firms caved to demands to provide large amounts of free legal work (and suffered financially for their decisions), others did not (and profited from holding fast). Their resistance had clear First Amendment implications, as the administration has retaliated against firms for exercising their right to freely represent clients and advocate for legal causes. These acts of noncooperation help explain the DoJ’s recent decision to walk back its efforts to compel further compliance from major law firms.
One obvious consequence of attacks on free expression — which is seemingly not lost on recent conservative detractors, as U.S. Senator Johnson indicated above — is that they can set a dangerous precedent. In other words, the normalization of attacks on Trump’s opponents can empower future Democratic administrations to do the same.
A Page Out of the Authoritarian Playbook
The Trump administration’s actions mirror similar efforts by left- and right-wing autocrats around the world. According to V-Dem, free expression has declined more than any other democracy indicator worldwide. Similarly, ARTICLE 19 found that more than 5.6 billion people have experienced declines in their freedom of expression during the last decade. In the United States, levels of free expression have not been so low since 1945, according to V-Dem. This mirrors recent findings from Pew and YouGov, which showed that majorities of Americans were concerned about restrictions on freedom of speech and press.
Autocrats restrict the public sphere so they can dominate the public narrative, “chilling” and discouraging resistance. The Trump administration has reinforced this dynamic through the use of ICE and DHS tip lines, encouraging people to report on their neighbors. Speech restrictions and the self-censorship that these generate make it difficult for people to coordinate their actions, as they become unable to discern whether others support or oppose the autocrat.
Attacks on free expression are often justified based on national security risks, both real and invented. In this sense, actions such as the FCC threats against factual reporting on the Iran war mirror tactics by autocrats such as recently ousted Hungarian Prime Minister Viktor Orbán, whose 16-year-long crackdown on Hungarian universities, NGOs, and independent media was predicated on the claim that these are agents of malign European Union influence. The United States, too, is no stranger to this phenomenon — think of the Red Scare inflaming fear of communist and other left-leaning influence in the 1940s and 1950s.
Of course, the authoritarian playbook is just that — a set of strategies that can be countered by anti-authoritarian tactics. There has been no shortage of such actions in recent months. After the Department of Defense rescinded longstanding protections for the editorial autonomy of Stars and Stripes, two Pulitzer Prize-winning members of the publisher’s advisory board sued the administration, arguing that it had “ignor[ed] its own regulations and the First Amendment.” The head of OpenAI’s robotics and hardware division resigned in opposition to the company allowing its technology to be used by the Defense Department without sufficient guardrails against potential surveillance of Americans, which of course could have a chilling effect on free expression and assembly. And 41 retired, high-ranking military leaders filed an amicus brief defending U.S. Senator Mark Kelly’s right to speak in a video in which he and fellow lawmakers sought to educate members of the U.S. military about their rights and obligations to disobey unlawful orders.
Capitalizing on Unlikely Alliances
A broad, bipartisan coalition will be critical to strengthening American democracy and halting unconstitutional federal actions. This includes not only those groups fighting for free elections in the face of voter suppression or for due process in the face of ICE detentions, but also those defending lawful protest and other First Amendment freedoms. The broader the coalition and the greater its willingness to act, the more costly the administration’s attacks on free speech will become, and the less leeway there will be to disregard judicial rulings, whether on First Amendment issues or otherwise.
As observers of Trump’s second term have learned, capitulating to repression often backfires, signaling weakness and emboldening authorities to crack down even harder. Autocrats invariably isolate their targets — be they individual protest campaigns, law firms, or media networks — in order to undermine their capacity for collective action. These tactics will be more difficult for the Trump administration to sustain in the face of consistent public pressure. Coordinated action by diverse communities has historically made repression and abuses of power backfire, weakening the hand of autocrats.
As the U.S. celebrates its 250th anniversary, and six months out from the midterm elections, a broad First Amendment coalition — with supporters ranging from Hollywood actors who are part of the Committee for the First Amendment to conservative faith leaders who voted for Trump and media pundits of the right — will be necessary to keep the democratic experiment going.
