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Could Donald Trump’s administration be a double-edged sword for free speech?
The second Donald Trump administration isn’t even a month old, and yet it seems as though the divisive president has already produced enough headlines to get us to the next election. With sweeping executive orders, massive cuts to federal departments and sights set on the contentious purchase of foreign lands, it’s hard to currently decipher the impact of his decisions and statements on the American people, and globally.
This is particularly true when it comes to one of the foundations of the USA’s Bill of Rights – the right to free speech.
Since his inauguration, there have been accusations of censorship and free speech violations levelled at Trump and his office. His threat to deport students with VISAs who display pro-Palestine views has rung alarm bells, and after the 47th President was credited with the reinstatement of social media platform TikTok in the USA, there were user reports of censorship around criticism of Trump, or pro-Palestine sentiment. There have also been major causes for concern among the LGBTQ+ community as one of Trump’s new executive orders threatens the self determination and self expression of trans people.
But is it all bad news when it comes to free speech? The USA-based non-profit organisation Foundation for Individual Rights and Expression (FIRE) keeps a close watch on how each president upholds freedom of speech according to the First Amendment of the US Constitution. Speaking to Index, members of FIRE’s legislative team explained how Trump’s first few weeks in office have impacted free speech in the USA, for better and worse.
Tyler Coward, lead counsel in higher education related government affairs at FIRE, has concerns about Trump’s threat against pro-Palestine foreign students. “There are mixed signals from some courts about what speech rights people have when they’re here on a temporary status, such as [on] visas, but FIRE’s position is that it’s a bad idea to create two classes of students on campus, some that can participate fully in campus advocacy or campus protests, and those who risk fear of deportation,” he said.
“There are students that can or have engaged in actual unlawful activity, including violence against other students, engaging in sanctionable civil disobedience, actual discrimination or intimidation, things that are generally not protected by the First Amendment,” he continued. “But we think it’s a bad idea to create a system where speech that would be protected for an American student, wouldn’t be for a student on a student visa.”
However, Coward believes that if Trump abides by the precedent set in his first term, the impact on free speech could be varied. “His (first) administration did some things on the campus side, some which were helpful, some which were not. First off, on the helpful side is that we in the United States have an anti-discrimination statute called Title IX, which prohibits discrimination on the basis of sex, in education, in any entity that receives federal education dollars.
“The Federal Department of Education was interpreting that statute in ways that threatened free expression, particularly free speech, on sex and gender issues, and the first Trump administration passed rules that were very speech protective to allow for broader discussion and debate about these issues on campus… the Obama administration and the Biden administration both adopted rules that were harmful to free speech on those issues.”
But other executive orders implemented during Trump’s first term, and being continued into this administration, could have stretching powers that impact people’s right to protest and express views freely, Coward added.
For instance, Title VI of the 1964 Civil Rights Act – which bans discrimination based on race, colour, or national origin in organisations that receive federal funding, such as universities – has now been extended to include anti-Semitism. While hate speech should rightly be tackled, the concern is that the order could be expanded beyond hate speech and used in such a way that stifles the free speech of those who oppose Israel’s policies.
“I suspect we’ll see a lot more enforcement and a lot of speech that is protected by the First Amendment, including criticisms of Israel, that will pressure educational institutions that receive federal dollars,” said Coward. “The institutions will be cracking down on this speech in ways that threaten free expression, and then the education department itself will start investigating institutions for failure to censor that speech.”
Carolyn Iodice, legislative and policy director at FIRE, also told Index about the threats that journalism in the USA could face as a result of Trump’s attitude to the media. The president has sued several media outlets and social media firms because of the way they have reported news about him, represented his opponents or moderated his speech, Iodice said.
“We would have normally expected that the entities – like CBS News, Facebook and ABC News – would fight that kind of lawsuit; because for one [Facebook], there’s no legal claim to be had against them, and two, with CBS and ABC, if you don’t defend your journalists it creates this chill about what they can and can’t say about the president.”
Meta, the owner of Facebook and Instagram, is due to pay $25 million to Trump in a settlement, after Trump sued the Big Tech firm and its chief executive Mark Zuckerberg in 2021 over the suspension of his accounts following the 6 January 2021 Capitol riots. ABC has settled its defamation case for $16 million. CBS is also reportedly considering settling over a case involving an interview with former Vice President Kamala Harris, where Trump alleged that CBS had edited the show to unfairly cast Harris in a more favourable light.
“The concern there is that you now have, by virtue of these lawsuits, a multi-billion dollar incentive for companies to have their journalists shape their coverage in ways that won’t get them brought back to court by the president again and again,” Iodice said.
Regarding social media, despite anecdotal user reports of censorship on TikTok when it was first reintroduced in the USA, FIRE are generally positive about the steps Trump has taken towards reducing censorship on these platforms.
“The most promising thing so far,” Iodice said, “is that he issued an executive order that talked about, and was critical of, the practice of the government leaning on social media companies to coerce them to [censor] speech in ways the government couldn’t directly require them to do, because of the First Amendment. And we think that’s a very good thing, regardless of who does it.”
The second Trump Administration outwardly champions free speech for Americans, but the first weeks of government have not always represented this ethos. Those of us working against censorship around the world have looked on with trepidation at this new government, which looks set to overturn the applecart in all facets of government. One can only hope that the First Amendment isn’t flung to the wayside.
How might Donald Trump’s executive orders impact free speech?
The start of Donald Trump’s second term of office as US president was marked with a flurry of executive orders – directives given by the president directly to the federal government without the need for approval by Congress.
Ever since George Washington, US presidents have had the power to issue such orders as stated within Article 2 of the Constitution (“the executive power shall be vested in a president”). This article justifies presidents’ interventions, and allows them to enact their own policy vision or agenda.
Washington issued eight. Of the more than 14,000 executive orders issued since, Franklin D Roosevelt has been their biggest user, issuing 3,721 during his more than 12 years in office. Joe Biden issued 162 orders during his time in office.
While in principle they seem to allow the president to change the law on a whim, executive orders are subject to judicial review and can be overturned if they conflict with the law or the constitution. Indeed, many believe that Trump’s new orders could be “tied up in courts or legislatures for years”.
As an example, the American Civil Liberties Union has announced it is challenging a new order that seeks to end birthright citizenship of all children born in the United States regardless of race, colour, or ancestry.
The flurry of new orders marks a turnaround for Trump. In March 2016, he criticised Barack Obama for their use:
“Executive orders sort of came about more recently. Nobody ever heard of an executive order, then all of a sudden Obama — because he couldn’t get anybody to agree with him — he starts signing them like they’re butter, so I want to do away with executive orders for the most part.”
Trump’s enthusiasm for new executive orders, plus the revocation of many of those issued by his predecessor, have implications for freedom of expression.
Revocation of Biden executive orders
One of Trump’s first tasks was to revoke 78 of President Biden’s orders and Presidential Memoranda, including several measures supporting diversity and tackling discrimination.
Explaining this decision, President Trump wrote: “The previous administration has embedded deeply unpopular, inflationary, illegal, and radical practices within every agency and office of the Federal Government.
“The injection of ‘diversity, equity, and inclusion’ into our institutions has corrupted them by replacing hard work, merit, and equality with a divisive and dangerous preferential hierarchy. Orders to open the borders have endangered the American people and dissolved Federal, State, and local resources that should be used to benefit the American people. Climate extremism has exploded inflation and overburdened businesses with regulation.”
The orders that Trump has proposed to revoke include those which: prevent discrimination towards transgender and gay people; support educational opportunities for people from ethnic minority backgrounds; promote access to cultural and learning services, such as libraries; and encourage regulation around the use of AI (artificial intelligence).
New executive orders
Trump has introduced a raft of new executive orders.
Free speech
For Index, one of Trump’s most eye-catching orders is one for “restoring freedom of speech and ending federal censorship”.
President Trump acknowledges “the right of the American people to speak freely in the public square without government interference”, as enshrined in the First Amendment to the US Constitution. He then says that “the previous administration trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the federal government did not approve”.
He adds: “Under the guise of combating ‘misinformation’ ‘disinformation’ and ‘malinformation’ the federal government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the government’s preferred narrative about significant matters of public debate. Government censorship of speech is intolerable in a free society.”
The order requires the US Attorney to investigate the government’s activities over the past four years to decide whether any remedial actions need to be taken.
Trump fails to address some of the nuances when it comes to online content moderation. We outlined these when we responded to the changes at Meta earlier this month. Whilst we have reservations about moderation, we also have reservations about a complete lack of moderation. An unfiltered world of lies and hate speech can, and does, impact many people’s freedom of expression. A delicate balance must be sought but the new president doesn’t appear interested in striking this balance.
His move to “protect” free speech has also drawn much criticism and allegations of hypocrisy, given his penchant for threatening and suing journalists and political opponents. He famously referred to journalists as the “enemy of the people” and has sued five media companies, with some lawsuits still ongoing. His lawsuit against former political opponent Hillary Clinton was also dismissed as “frivolous, both factually and legally” by a federal judge, and Trump and his attorney were ordered to pay nearly $1 million in penalties.
Gender identity
As well as revoking a number of Biden-era orders, President Trump has made a new order aimed at “defending women from gender ideology extremism and restoring biological truth”.
In the order, he says: “Efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and wellbeing. The erasure of sex in language and policy has a corrosive impact not just on women but on the validity of the entire American system.”
At Index, we have charted how discussions around gender have become toxic and how voices on both sides have been silenced. But once again Trump fails to acknowledge any nuance here and his own personal prejudices come out. This is not about allowing a plurality of voices and opinions – it is about prioritising one voice over another.
The order has drawn serious concerns for the free expression of transgender people, as it attempts to erase non-binary and transgender identities. For example, the order directs that passports, visas and other government documents must reflect male and female as the only two sexes, and government agencies will be banned from promoting gender transition. “As of today, it will henceforth be the official policy of the United States government that there are only two genders, male and female,” said Trump during his inaugural speech on Monday.
Stopping diversity, equity and inclusion
In an order titled Ending Radical and Wasteful Government DEI Programs and Preferencing, Trump vowed to halt diversity, equity and inclusion programmes within the federal government, which he described as generating “immense public waste and shameful discrimination”.
This is an incredibly knotty issue. Susie Linfield, professor of journalism at New York University, raised her concerns about DEI programmes in this thoughtful piece for Index when she talked about a culture of coercion that has been created on US campuses.
But to end these programmes rather than improve them could see fewer opportunities for, and the further discrimination and silencing of, ethnic minority voices and people of colour in government bodies and agencies. The private sector also appears to be following suit. According to Forbes, several high-profile companies appear to be either ending or altering their US DEI programmes, including Amazon, Meta and McDonald’s.
Pardons for 6 January rioters
As expected, President Trump has pardoned or commuted the sentences of all those involved in the US Capitol riots of 6 January 2021, saying it puts an end to “a grave national injustice”. The move involves more than 1,500 people, including 14 members of the far-right groups the Proud Boys and Oath Keepers. More than 600 were charged with assaulting, resisting or obstructing law enforcement, using a deadly or dangerous weapon or causing serious bodily injury to a police officer.
Such an order muddies the waters legally of what constitutes “peaceful protest”, confusing the right to object to political decisions with the right to be violent. It also potentially emboldens those looking to enact the latter. It’s also worth noting that this violence was a response to an election that was won fairly. What could happen in four years time if people decide they don’t like the election outcome?
U-turns on social media bans
Having previously backed a TikTok ban during his first term in office, Trump has since changed his position on this.
Last year, a law was passed in Congress under Biden, which required the Chinese technology company that owns TikTok – Bytedance – to either find a US buyer for the US version of the app, or face a complete ban in the USA. The law gave ByteDance until 19 January 2025 to sell in order to avoid a ban. But Trump has just signed an executive order which suspends the sale or ban by granting the company a 75-day extension.
National security concerns have been cited for the need to ban the platform, by both Biden’s and Trump’s former governments, including that the Chinese government could use TikTok for potential spying or data collection on American citizens. But there seems to be little-to-no evidence that supports these concerns. This is not to say that it isn’t happening, but that currently the threshold for a ban has not been met. The ban therefore posed concerns for free speech and access to information, given that more than 170 million Americans use TikTok, many of whom (particularly younger people) use it for news.
However, this u-turn seems less about Trump being a guardian of free expression, and more about pursuing his own marketing agenda. The president has gained huge popularity on the platform, with 15 million followers, and some of his videos have amassed more than 60 million views. He used it extensively during last year’s presidential campaign.
Risks to impartial information and journalism
On top of Trump’s disparaging remarks made about journalists, several executive orders have been signed which are cause for concern for citizens’ access to impartial and truthful information. This includes the creation of a Department of Government Efficiency, which will be headed up by X owner Elon Musk. The new advisory body will aim to cut government spending.
With Musk at its helm, critics are concerned about the implications for a free press, given the tech giant’s attitudes towards the media, having previously called for the defunding of American public broadcasters such as NPR. Policy decisions taken at X also indicate that Musk would not be a purveyor of a free press – a recent change to the social media platform’s blocking policy means that accounts can now view who has blocked them, which is expected to increase the rate of harassment towards journalists, particularly women and people of colour.
The president’s attitude towards the spread of false information online also indicates that it may become harder for Americans to discern between truth and falsehood. Trump has previously referred to efforts to tackle political mis- and disinformation as “the censorship cartel”, and several new executive orders imply a worrying approach to authoritative, and expert-led, global perspectives on issues such as climate change and pandemics. This includes an order withdrawing the US from the World Health Organization, and another withdrawing it from the Paris Climate Agreement, showing even more movement away from the general consensus on public health and climate crises.
Donald Trump’s re-election is disastrous for free speech
Waking up to today’s news that Donald Trump has been re-elected as president of the USA is deeply troubling. Despite what he claims, Trump is no poster boy for free speech. We at Index have many grave concerns about what another four years under him could mean for the USA and the world.
The first of these concerns is media freedom. His record on this is worrying. During his last term as president, Trump constantly appeared on our website and in our magazine. David E. McCraw, the New York Times deputy general counsel, spoke to us about the physical violence journalists were facing in the USA as a result of Trump; the great-granddaughter of Soviet leader Nikita Khrushchev, Nina Khrushcheva, wrote about his lashing out at various mainstream media with labels like “enemy of the people” and even said life in the Soviet Union was better in this regard:
“Once a Soviet citizen, I’ve been checking my surroundings. Am I living in cosmopolitan New York? Am I back in a homogeneous Moscow reading the Pravda headlines about the drummed-up victories of the communist state and the denunciations of the enemies who plot to take it down? In fact, when I was growing up in the 1970s, not even Pravda used such ominous language for Kremlin critics.”
Alas if Trump is to be taken at his word, his first four years in power were simply the dress rehearsal before the real show. Project 25, the Republican Party’s 900-page policy wish-list, includes plans to seize journalists’ emails and phones, while campaign-trail Trump frequently railed against the media, threatening to arrest those who disparage him and to strip television networks of their broadcast licenses. This might partly explain why Jeff Bezos crushed the Washington Post’s endorsement of Kamala Harris. Self-censorship is after all self-preservation.
This Sunday Trump said he wouldn’t have minded if journalists had been shot during his assassination attempt.
Such language incites. Reporters have spoken about feeling very unsafe at Trump rallies. Such language is also not limited to the media. His desire to throw people in jail extends to his detractors more broadly and is often personal. His campaign team claims his “firing squad” comment towards former US Republican lawmaker Liz Cheney has been taken out of context. Perhaps. Still there is no denying that he launched a vicious attack, solely because she was on Team Kamala.
This leads onto our broader concerns for freedom of expression in the USA. Minority voices will be further marginalised. So too will the voices of those who simply wish to criticise Trump or pull up his administration when it falls short. Even the best administrations fall short. Never mind ones staffed with conspiracists and liars. The implications are terrifying.
All the while Trump’s particular style of “noisy” leadership feels structurally built to erode USA democracy. In Umberto Eco’s essay Censorship and Silence, the Italian twentieth century scholar argued that too much information was an intentional tactic. Noise becomes an instrument of censorship and a tool of totalitarianism. It drowns out what we should be hearing. Trump likely knows this; his constant chatter is, many believe, done on purpose, the chaos it creates aimed at frustrating and distracting the public.
This does not just concern people in the USA. It concerns all of us, especially anyone living under dictatorships. Autocrats benefit from our distraction. Is it any surprise that, with our attention fixed on Israel-Palestine and indeed the USA, Saudi Arabia has carried out the highest number of executions this year since 1990 and that few have spoken about this?
Moving forward our fears deepen for those who live in totalitarian states and we fear too for people in Ukraine, the Baltics and in the Middle East given Trump’s allegiances in those regions.
Trump was voted in – but concerns have been raised about how fair the election was, starting with accusations once again of Russian meddling, the fact that one of Trump’s biggest supporters (Elon Musk) runs a highly influential social media platform and offered money to people voting in swing states, and stories of ballot boxes being set on fire. But in the grand scheme of elections, where countries like North Korea don’t hold any, it is undeniable that the USA’s 2024 ones were closer to free and fair.
That his election was democratic provides no solace, however. The world is not short on examples of autocrats who received a popular vote at the start. Victor Orban. Narendra Modi. Recep Tayyip Erdoğan. A vote is only one function of a democratic system and it is all too often imperfect.
As newspaper columnists address what led to this moment we pledge to work tirelessly to hold Trump to account on free speech.
When Index was launched in the early 1970s our mission was always to look at censorship everywhere and to not assume that we in the so-called West will have freedoms tomorrow just because we have them today. In the decades since we have tirelessly reported on and promoted free expression. We’ve successfully campaigned to change laws, to free prisoners of conscience, to get people off death row. We will continue to work in this way and we will report on every violation to free speech that Donald Trump and those in his government make. We will do our best to ensure the right to free expression does not bear the brunt of his presidency.
We know we need to make the case for free speech even stronger too. It is simply not good enough that the loudest voices talking about free speech are the very voices that want to dismantle it.
Today is a day of despair. It is also a day for collective action, for those of us who genuinely care about free speech to come together to protect and promote it. Please join us.
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