If Trump Blows It on Speech, the World is Screwed
China guarantees free speech, unless it undermines “the interests of the state.” You can be fined 14.7 million yuan for comparing the army to a squirrel. In Russia jails are filling with regime critics, while papers like Novaya Gazeta are forced to suspend publication until after the Ukraine war. British police routinely conduct speech raids against offenders across the spectrum, Germany boasts about its thought cops on 60 Minutes, and the EU’s vast censorship law, the Digital Services Act, just played a role in helping overturn an election result in Romania. Around the world, from Ukraine to Australia to Israel to India, free expression is in full retreat.
That leaves America, where the First Amendment is the last obstacle to a global movement toward bureaucratization of speech. In last year’s campaign Donald Trump and J.D. Vance rightly ran against the speech excesses of the Democratic Party, with Vance saying views on censorship constituted the “biggest difference” between Trump and Kamala Harris, and Trump upon inauguration naming censored figures like Robert F. Kennedy, Jr., Tulsi Gabbard, and Dr. Jay Bhattacharya to high office. The administration initially acted like it understood the gravity of the situation, with Vance confronting Europe over its civil liberties crackdowns. They seemed to know what they wanted to achieve on this issue.
That operation is now hanging by a thread. Trump is suddenly blowing it on speech in a big way, with two big categories of screw-ups: pandering to Israel, and reaching into the same emergency-power cookie jar that foreign counterpart-jackasses like Keir Starmer and Olaf Scholz and Thierry Breton have recently raided, in efforts to suppress populist movements like Trump’s own. Once he jumps on this bandwagon, we’re all screwed, because there’s nowhere left to run.
This week, I spoke with a half-dozen speech advocates and First Amendment lawyers, many of whom just spent five or more years in an exhausting battle against a long list of mostly “progressive” civil liberties violations, from bans on church attendance during the pandemic to efforts to block J6 defendants from using GoFundMe to raise money for their own defenses, to digital censorship. You can read my interview with FIRE lead government counsel Tyler Coward to get a full sense of one of these conversations, but all of these people expressed a significant level of concern (“I’m probably at a seven. No, an eight,” sighed one Midwestern lawyer).
A lot of hay is being made about the Saturday detention by Department of Homeland Security agents of Mahmoud Khalil, a Palestinian activist. As is the case with most political issues in the United States the story is packaged as a partisan catnip, with mainstream audiences reading about a noble dissident with a green card deported for anti-Israeli views, and conservative media reading about a burdensome foreigner who disrupts classes and hands out fliers with the Hamas logo, whose presence would “compromise a compelling U.S. foreign policy interest,” as Secretary of State Marco Rubio put it.
Forget Khalil. He’s not the issue. The problem is Trump officials pledging to throw masses of people out of the country for offenses not yet committed and on vague pretexts like being “aligned with Hamas.” As Coward put it (see accompanying interview), “What does that mean?” Similarly, what does it mean to be a “Hamas sympathizer,” and what constitutes “aiding and abetting violations [of] immigration laws,” a standard Trump just decided to employ to deny relief to some federal student loan holders?
This use of vague language mixed with speech-code concepts is similar to the techniques employed by the politicians Trump and Vance ran against or criticized last year, like Kamala Harris and Tim Walz, Britain’s Keir Starmer or the censorship zealots at the Barack Obama-created Global Engagement Center. The cultural targets are different, but both sides would be embarrassed to realize how nearly identical their arguments justifying their crackdowns are.
Take the new administration’s “Catch-and-Deport” program, which among other things will use AI to analyze social media accounts in a “whole of government” effort to locate and kick out aliens for Minority Report violations, i.e. because they “intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes.”
Weren’t conservatives outraged last August when Starmer pledged to use “shared intelligence” and “facial recognition technology” to capture alleged speech criminals “before they even board a train”? Didn’t Elon Musk ask, “Is this Britain or the Soviet Union?” And if Trump planned on turning around and immediately deploying the State Department and the DHS to use computerized scanning of social media as a punishment mechanism, why were we supposed to care about State Department funded blacklists, the DHS’s moronic Disinformation Governance Board, or suppression of figures like Bhattacharya or Tucker Carlson?
The worst thing is what a tremendous self-own this is. After Britain passed its hideous Online Safety Act and began railing against “illegal content,” American speech advocates laughed out loud at the Orwellian absurdity of that term. Now Trump is threatening to cut school funding over “illegal protest”? Did he get the idea from Starmer?
Republicans trashed Tim Walz all summer for not knowing that hate speech is protected in this country, and Vance correctly upbraided Europeans in Munich for using “hateful content” as an excuse to clamp down on dissent. Now Vance’s team is going to deport people for “hateful ideology”? Finally, shouldn’t the Trump State Department be embarrassed to be promising a “whole of government” approach to stopping extremism, when Obama promised the same “whole of government” concept in founding the infamous Global Engagement Center censorship operation in his State Department? Is it possible the two ideas came from the same State Department lifers?
Finally, Trump named Gabbard Director of National Intelligence in part to stick a thumb in the eye of those who put her on a “Quiet Skies” terror list, which became infamous among other things for conducting surveillance of people not even suspected of crimes. Now he’s making a celebrity of Khalil, who’s similarly being punished for something he didn’t even do yet; an unnamed administration official just told the Free Press, “The allegation here is not that he was breaking the law.” Then why bother?
Supporters of the move point out the state does have authority to toss out even green card holders (maybe so, but more on that below), but those people usually follow up by saying how Khalil mobilized support for Hamas, or subverted American policy, or was himself an annoyance who disrespected the First Amendment. This is the same “He’s just a shitty person” argument we just spent years fighting against, from the American campus speaker bans to the removal of Trump himself from social media to Sunday’s yanking of Calin Georgescu from the ballot in Romania.
As is standard in any story relating to Trump, a lot of the press hysteria about these stories ignores key angles. Both the crusade against DEI and Trump’s Hannibal-esque assault on Columbia University at least in theory could be looked at as anti-discriminatory moves, designed to get the government out of the business of sponsoring racist/stupid policies ranging from segregated graduation ceremonies (“Multicultural Celebrations,” in Columbia parlance) to segregated dorms (“Special Interest Communities,” in Columbia terms) to the forced diversity statements which have been an affront to the First Amendment for a while. Even harsh punishment of schools like Columbia for failing to enforce Title VI responsibilities with regard to pro-Palestine protests could have been okay, if the administration had stuck to demanding that schools halt genuinely discriminatory practices like blocking movement using human chains or barring “Zionists” from entering certain areas.
Instead, Trump mangled the whole effort by bending all the way over for Israel and Bibi Netanyahu through a series of asinine moves, beginning with his 2019 Executive Order on Combating Anti-Semitism. That enshrined the concept of using the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, which includes clearly legal speech like “denying the Jewish people their right to self-determination… by claiming that the existence of a State of Israel is a racist endeavor,” or “mendacious, dehumanizing, demonizing, or stereotypical allegations about… the power of Jews as collective.” We just lived through nearly a decade without comedy and now Donald Trump, basically the political version of Don Rickles, wants to make stereotypes illegal? Forget that this and subsequent moves like his updated antisemitism order from this year openly conflict with the First Amendment, under which hate speech is protected. The broader stupidity is agreeing to the premise that we’re undergoing such an “unprecedented wave of vile anti-Semitic discrimination” that we need to punch a hole in the Constitution to fix it.
This is the exact same concept, and maybe dumber, than the post-George-Floyd rushes to declare racism a “public health crisis” of such virulence that it superseded the other speech-crushing state of emergency of that period, the Covid lockdowns. If Trump is half the negotiator he says he is, he’ll tell Israel and AIPAC they can have their Gaza Riviera or whatever else he’s promising in the way of support, but they can keep their hands off the Bill of Rights, thank you very much. Hell, even the man who wrote the IHCR definition, Kenneth Stern, said it was never intended to be used as a speech code (see FIRE interview). Trump and Vance last week seemed to have no problem standing up to Volodymr Zelensky, and by extension Europe, to protect American interests. They should be willing to do the same to save the Bill of Rights from a handful of lobbyists, unless they really are Israel’s bitches.
Trump never talked like a civil libertarian, which is fine. His schtick was always to play the opposite, coming off as a parody mix of Mobutu and Dirty Harry, like that time he told a crowd of police: “Please don’t be too nice” to suspects. But despite some unnerving episodes and 400+ actions filed against him by the ACLU, first-term Trump wasn’t the civil liberties disaster TV said he was. He spent most of that first four years as a high-profile stand-in for more commonplace victims of national policing authority, as Democrat opponents deployed everything, including digital censorship, political spying, sixties-style FBI leaks and “disruption,” and extravagant use of laws like the Espionage and KKK Acts to go after him. Trump said crazy things, but it was his lawyer’s office getting tossed. He was on the receiving end of the bigger civil liberties overreaches.
Now, Trump is falling into the same trap his opponents did, seemingly assuming he might as well break every rule, since they’ll be broken against him. “There are so many different issues going on,” said Nadine Strossen, former president of the ACLU. “It’s hard to track.”
Strossen this morning read up on the legal authority the Department of Homeland Security is invoking to sanctify its mass deportation policies, an obscure provision of the Immigration and Nationality Act, which the Knight Institute dug up through a FOIA request. “It was created as part of the Patriot Act,” she says. “I hadn’t realized that the statute is quite young.”
Yes, it’s there in black and white, a law that says you can remove an alien who “endorses or espouses terrorist activity.” This may apply to some of the people who will be rounded up after the administration’s AI-enhanced analysis, but it’s hard to imagine it will describe all of them. Even if this law were to survive a high court challenge, it wouldn’t matter. What Madison called “paper guarantees” won’t stop politicians from walking over civil liberties, especially in a post-9/11 America whose books are full of rules that encourage executives to cancel civil liberties on a whim. Even some of our older laws encourage this, like the statutes giving those governors authority to stop church services in a pandemic, or the 1904 Turner v. Williams case against “undesirable additions to our population” that a National Jewish Advocacy Center spokesperson just cited to justify the deportations in the Free Press.
As Strossen points out, though, there are also cases on the books like Bridges v. Wixon, in which Supreme Court Judge Francis Murphy pointed out that while foreigners don’t have the same rights as Americans on the way in, “once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.” People can argue about the law all day long. The bigger issue is, why do it? The state already has virtually undisputed power to remove people who are in the country illegally, and that operation is proceeding at an unprecedented pace. Going after people who have the right papers based on a dystopian pre-crime concept, or a vague standard of “hateful” beliefs, is the same thing every other country in the world is already doing.
As noted above, most of the developed world now has one or the other version of the same emergency provisions on the books, whether it’s the DSA in Europe, China’s National Security Law, Russia’s ban on “unreliable” speech, or Britain’s moronic “illegal content” statute. Now, Donald Trump gets to join that illustrious club, at a time when the one thing the world badly needs him to do is not that. Doesn’t he want to be different?