Trump’s Free Speech Shell Game: Bold Promises, Troubling Actions

Trump promised to "bring back free speech" to America. But what about for his critics?

Image adapted from photo by Gage Skidmore

In his second inaugural address, President Donald Trump pronounced that he would “immediately stop all government censorship and bring back free speech to America.” But, so far, many of the actions of Trump’s new administration indicate a worrying intent to bring back free speech for some while using the power of his office to go after critics.

Mixed Executive Actions

In the first hours of his second term, Trump signed an executive order declaring it the policy of the United States to “secure the right of the American people to engage in constitutionally protected speech” and to “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.”

Such a policy is heartening to First Amendment advocates and signals that the administration will not “jawbone” social media platforms to remove constitutionally protected user speech. The Biden administration was in close contact with social media platforms in 2021 and 2022, often flagging what it viewed as misinformation about topics such as COVID-19. The Supreme Court declined to rule on the merits of a First Amendment challenge to those actions, concluding that the plaintiffs likely lacked standing. So any commitment from the executive branch to stop engaging in such activities is significant progress toward preserving First Amendment rights.

But Trump also states in the executive order that the government must “identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech” and instructs the Justice Department to investigate the government’s activities over the past four years.

While this directive is ostensibly designed to combat censorship, it raises the real possibility of the Justice Department investigating the First Amendment-protected speech of those who have researched misinformation. Misinformation researchers already have faced costly congressional subpoenas and lawsuits, so to the extent that this investigation results in further potential liability, it could have a substantial chilling effect on those who exercise their constitutional rights to criticize what they view as misinformation.

Trump Admin v. The Media

Even more concerning have been the actions of Trump’s Federal Communications Commission Chairman, Brendan Carr. The FCC has launched an investigation into how 60 Minutes edited an interview with then-presidential candidate Kamala Harris. Carr also announced that the Commission is investigating a San Francisco radio station for allegedly disclosing the location of Immigration and Customs Enforcement agents.

While the FCC has the authority to evaluate whether broadcast licenses serve the “public interest,” assessing and attacking the editorial judgments of news organizations raises substantial First Amendment concerns. Carr himself previously argued that a “newsroom’s decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them.”

The FCC’s official actions appear to be just a slice of Trump’s multi-pronged revenge campaign against the press that began last year. In October, he filed a lawsuit against CBS and parent company Paramount over the same 60 Minutes interview with Harris, alleging it was deceptively edited. While that case is currently in settlement talks, in December, Trump sued The Des Moines Register and political pollster J. Ann Selzer. The suit alleged that the pollster engaged in “election interference” after it released a poll finding Harris leading in the state of Iowa, which Trump later won.

The administration and its allies also seem poised to go after the very First Amendment protections that have safeguarded the free press in America for over 60 years. Since his first presidential campaign, Trump has repeatedly discussed the idea of “opening up” libel laws to make it easier to sue the media for defamation.

Last week, former Republican National Committee Finance Chair Steve Wynn submitted a request to the Supreme Court, asking the justices to review the seminal New York Times v. Sullivan ruling in light of his dismissed lawsuit against the Associated Press. The 1964 decision requires public officials to establish that defamation defendants published with “actual malice,” which is knowledge of falsity or reckless disregard of whether the statement was true.

The precedent has allowed U.S. news organizations to avoid liability in defamation lawsuits brought by powerful politicians and business people. Justices Clarence Thomas and Neil Gorsuch already have indicated a willingness to revisit Sullivan; it is unclear whether their colleagues share that desire.

The Musk Question

Finally, the new administration brings a unique new First Amendment question: what happens when a high-profile government official runs a social media platform? Elon Musk, the head of the Department of Government Efficiency (DOGE), also owns X. After some X posters published the names of some DOGE employees that had been reported in Wired Magazine, Musk contended that such identification was illegal.

Setting aside the dispute about the legality of doxxing, Musk’s criticism of the posters raises real concerns about a powerful government official also having the ability to suspend users and remove posts from a popular social media platform. This is particularly true for X, which Musk often uses to announce DOGE-related actions and engage in conversations about his work for the government. To make matters worse, the Trump-appointed U.S. Attorney for the District of Columbia, Edward R. Martin, sent several open letters to Musk on X saying that he would use his office’s resources to go after those who “have broken the law or even acted simply unethically.”

Last year, the Supreme Court in NetChoice v. Moody ruled that social media platforms have a First Amendment right to moderate user content as they see fit. But that case did not involve social media platforms that are owned by powerful government officials. If X suspends or bans users who oppose his political stances, there is a reasonable chance that the courts will be asked to decide how a government official’s ownership of a platform restricts their ability to moderate content.

So far, the warning signs outweigh the positives. If Trump uses his office to silence critics while selectively championing free speech for his allies, his promises to "bring back free speech" will ring hollow. Instead of upholding the First Amendment, his administration risks turning it into a weapon—one that punishes dissent and protects only those who toe the line.

Free speech isn’t a privilege for the powerful or loyal; it’s a right for all. If Trump truly believes in it, his actions need to reflect that.

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Jacob Mchangama is the Executive Director of The Future of Free Speech and a research professor at Vanderbilt University. He is also a senior fellow at The Foundation for Individual Rights and Expression (FIRE) and the author of Free Speech: A History From Socrates to Social Media.