Falling Far and Fast

I have been studying and teaching First Amendment law for more than forty years, and in all that time I have been more or less confident that basic minima of freedom of speech would remain unscathed in the United States. It was the one constitutional right that inspired widespread allegiance and agreement. But this week, for the first time, I have become frightened that freedom of speech in America might actually be endangered. Authoritarianism, with its trademark suppression of free political discussion, looms on our horizon.

Wheel of power

Since the 1930s, when the Supreme Court first began to protect First Amendment rights, it has safeguarded freedom of speech because “the maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.” For all its many failings and lapses, the American Court has largely defended the First Amendment “as the guardian of our democracy,” seeking to construct a system in which “authority . . . is to be controlled by public opinion, not public opin­ion by authority.”

The First Amendment embodies the basic Aristotelian principle of democracy: citizens must agree to take turns ruling and being ruled. Those out of power can make their case in the public sphere to alter public opinion and take control of government in the next election. Free speech ensures that those who are ruled will have the opportunity to persuade others to invest them with the authority to rule in the future. Free speech turns the wheel of power. To suppress speech is to freeze that wheel. It is to choke off pathways of change and hence, as Louis Brandeis pointed out long ago, “to discourage thought, hope and imagination” by stoking the “hate” of the repressed, which constitutes a “menace” to “stable government.”

Stopping the Wheel

In previous decades American conservatives have completely understood this. Until a few years ago, claiming that they were a repressed minority unfairly excluded from power, American conservatives have repeatedly stressed their commitment to freedom of speech. They have claimed that conservative speech was unfairly repressed. President Trump issued executive orders, red states passed legislation, Republican legislators held hearings, all designed to force the toleration of conservative views. Even as late as this last spring Republican Congresspersons were presiding over investigations of the “censorship industrial complex” supposedly practiced by liberals.

Once Trump swept into the presidency in 2024 at the head of a Republican Senate and a Republican House, however, there were disconcerting intimations that there would be no further taking of turns. The populist conservative coalition led by Trump had no intention of yielding its precious gains. With a kind of malignant narcissism, Trump hinted that he might seek an unconstitutional third term as President. He urged questionable gerrymanders that would entrench his congressional majority. His administration “vowed to dismantle” liberal NGOs. It set about systematically intimidating competing centers of power, like universities and law firms.

During this past week, Trump unveiled his true pièce de la résistance. Using the excuse of Charlie Kirk’s assassination, and reversing his prior loud affirmation of freedom of expression, Trump announced that “critical coverage of him is ‘really illegal.’” Trump candidly expressed his intention to crush the speech of those who opposed him. By forcing ABC to cancel the popular show of late-night comedian Jimmy Kimmel, Trump put on a display of strength meant to intimidate business executives in the entertainment business.

Trump’s hand-picked chair of the Federal Communications Commission, Brendan Carr, an “attack dog” for conservative causes, publicly affirmed that “we’re not done yet” with changing “the media ecosystem.” So that no one would miss the point, Trump explicitly threatened to pull the broadcast licenses of offending TV stations. The turnabout of attitudes toward free speech was so violent and so obviously unconstitutional that even far right-wing Texas Senator Ted Cruz, supported by North Carolina Republican Senator Thom Tillis, was moved to declare Trump’s efforts “dangerous as hell.” What will happen to us, they asked, if Democrats could come to control these same levers of power?

The Trump administration’s astonishing action is of course right out of the standard authoritarian playbook. These days dictators like Orban assume power through ordinary democratic processes but subsequently intimidate all sources of effective opposition, including and most especially those expressing opposition in the “media ecosystem.” They seek to stop the wheel of power in its tracks, so that it will never turn again. They strive to entrench authoritarian control and to unstring democracy.

Free Speech and the Unitary Executive

There is no question but that the events of this week are unconstitutional under current law. The Court has recently and forcefully held that executive actions designed to impose “‘legal sanctions and other means of coercion . . . to achieve the suppression’ of disfavored speech” violate the First Amendment. But of course the Court announced this principle in the context of a liberal Superintendent of the New York Department of Financial Services allegedly speaking in ways that a conservative National Rifle Association found intimidating. The real rub is that no one can now say with confidence that this Supreme Court, which has been such a lickspittle to Donald Trump, will reach the same conclusion when the shoe is on the other foot, when a conservative executive seeks blatantly to sanction and suppress liberal speech.

To comprehend the true crisis of freedom of speech in the United States, one must appreciate the extent to which our current Supreme Court, to which Trump has contributed three appointments, has bolstered Trump’s megalomaniacal ambitions by thoughtlessly endorsing vast extensions of the so-called unitary executive theory. The Court has taken the position that the President is “the only person who alone composes a branch of government.” By concentrating all the “unrivaled gravity and breadth” of Article II power in a single individual, the Court has in essence collapsed all the many agencies of the federal government into the will of Donald Trump.

The Court has glorified political power and radically diminished the rule of law. It has encouraged Trump to fire prosecutors who refuse to bring baseless prosecutions designed to punish his enemies. It is surely no coincidence that a highly conservative court has sought exponentially to magnify the personal power of a highly conservative president.

It is fair to say that before the Roberts Court undertook the restructuring of the federal bureaucracy, it is highly unlikely any FCC Chair would have dared publicly to express the patently unconstitutional sentiments of Brendan Carr. Previous chairs, selected for their expertise instead of their blind loyalty, would have been constrained by their independent view of the law, if not by their professional expertise. But in the official view of the Roberts Court, Carr is simply the personal extension of Donald Trump, and it should come as no surprise that Carr has acted in precisely that role.

The Roberts Court has created a Frankenstein, an unabashed authoritarian who has been encouraged to assume full personal control of the immense instrumentalities of federal power. We have federal soldiers patrolling the streets of our cities, stopping and interrogating people of color at will, and now, in a perfectly predictable extension, we have federal bureaucrats threatening to yank the broadcast licenses of those who dare to question Donald Trump.

The Court’s unitary executive theory has reached the readily predictable consequence of radically undermining the rule of law. Trump has felt free to take manifestly unconstitutional actions against law firms and universities and to dare the federal courts to stop him. Lower courts have been valiant, but in its infatuation with the personal will of this president, the Supreme Court has done its best to facilitate Trump’s lawlessness.

Falling far and fast

And now, this week, the Trump Administration has taken direct aim at the First Amendment, the foundation stone of our democracy. Following conservative policy in the first two decades of the 21^st century, the Roberts Court has to date been extraordinarily solicitous of First Amendment rights. The question facing the nation is whether the Roberts Court, like the conservative movement in this country, will turn on a dime and adopt the new authoritarian attitude toward free speech. Will it suddenly authorize the repression of speech so that its favored party can remain entrenched in power? Will it expand the doctrines of presidential immunity that it was so anxious to articulate in United States v. Trump so that courts will find it impossible to control a President bent on silencing and intimidating its enemies? Will it seek to protect Donald Trump’s thin skin by reversing Hustler Magazine v. Falwell and holding that satirists with wicked tongues can be regulated by the state and the FCC?

My country waits apprehensively to learn whether the pinnacle of its federal judiciary will remain loyal to its heretofore unfailing conservative activism, or whether it will somehow remember its obligation to the rule of law and the Constitution. That this should even be a question illustrates how far and how fast we have fallen.