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Unprecedented.

Let’s begin with President Donald Trump’s  (Jan. 20), if only to contrast it with last week’s condemnation of his lawsuit against J. Ann Selzer, the Des Moines Register, and its parent company Gannett (see also FAN 451, 449 and 436). 

Ready? Here it goes: 

After years and years of illegal and unconstitutional federal efforts to restrict free expression, I will also sign an executive order to immediately stop all government censorship and bring back free speech to America.

Never again will the immense power of the state be weaponized to persecute political opponents, something I know something about. We will not allow that to happen. It will not happen again. Under my leadership, we will restore fair, equal, and impartial justice under the constitutional rule of law.

Never again! It will not happen again! Stop all government censorship! 

And there’s more: When it comes to free speech, all views will be treated with “impartial justice.” Against that promissory note, let us turn to his unprecedented executive order as discussed below.

Executive Order: Jan. 20, 2025

By the authority vested in me as President by the Constitution and the laws of the United States of America, and , it is hereby ordered as follows:

What follows is a brief description of the  along with some preliminary comments.

Section 1. Purpose

This section opens with an attack on the Biden administration’s alleged “trampl[ing of] free speech rights” when it comes to “online platforms.” Such abridgments, it is asserted, were done in the name of combating “misinformation,” “disinformation,” and “malinformation” in order to advance the Biden administration’s “preferred narrative.”&�Բ�����;

Note at the outset that this section is primarily addressed to reversing the Biden administration’s apparent censorship of online expression. Even so, there is a generalized statement: “Government censorship of speech is intolerable in a free society.”

Keep that in mind when it comes to what is set out in Section 4 below.

Section 2. Policy

This section focuses on four commitments: (i) securing free speech rights of all “American[s]”; (ii) mandating that “no [federal] agent engages in or facilitates” abridgments of free speech; (iii) ensuring that no “taxpayer resources” are used to abridge free speech; and (iv) identify and correct any past federal abridgments of free speech.

Unlike Section 1, the explicit focus of this section is not confined to any free speech abridgments committed by the previous administration. The focus is on securing free speech rights of “citizens.” Hence, the policy is directed to an affirmative obligation of the Executive branch to protect free speech rights. The operative action words are “secur[ing],” “ensur[ing],” and “i���Գپ��ڲ�ھ��Բ���.”

Thus, there is a duty to ensure that no federal officers are used or taxpayer dollars expended in violation of the Speech Clause of the First Amendment. Also, unlike Section 1, much of Section 2 applies to all free speech rights and not those confined to social media. There is also a promise to investigate for any and all existing abridgments of free speech committed by “past misconduct by the Federal Government.”

Section 3. Ending Censorship of Protected Speech

Like Section 1, this section focuses on the actions of the past administration (i.e., abridgments committed “over the past four years”). This section, unlike section 2, explicitly applies to federal departments and agencies, though it also applies to federal officers, agents and employees. Such agencies and departments must comply with the requirements of Section 2.

The second portion of this section deals with the investigative powers of the attorney general working “in consultation with the heads of executive departments and agencies.” Again, this investigation is confined to wrongs committed by the past administration. Following such investigations, a “report” shall be submitted to the President suggesting “remedial actions.”

Much of this section seems repetitive of what is set out in Section 2, save for the references to federal departments and agencies and the need for investigation followed by a report to the President. Note that under Section 3, remedial action is suggested, whereas under Section 4, per this Executive Order, remedial action against the United States and its officers is prohibited.

Section 4. General Provisions

In order to appreciate the import of this clause, it is best to quote the final provision (sub-section (c) it in its entirety (with emphasis added):

This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The opening provisions of this Section refer to authorizations of grants of executive power. The Order is to be implemented consistent with the “applicable law and subject to the availability of appropriations.”

Importantly, While the First Amendment is a prohibition against the federal government and all its officers, this Executive Order:

1. applies to free speech wrongs committed during “the last 4 years” or “past misconduct by the Federal Government” or abridgments occurring “over the last 4 years,” though there is a passing mention of securing the free speech rights of all “American[s].”&�Բ�����;
2. Yet even as against such past alleged free speech wrongs, the sole remedy is by way of corrective action taken by the Executive Branch. 
3. If such corrective action, or any other actions taken by Executive officials in pursuance of this Executive Order, themselves abridge First Amendment rights, there is no independent remedy secured by the Order.

Related

• Alex Abdo, “,” Just Security (Jan. 21)
• Eugene Volokh, “” The Volokh Conspiracy (Jan. 21)
• Josh Blackman, “,” The Volokh Conspiracy (Jan. 21)
• “” First Amendment Watch (Jan. 21)
• “,” First Amendment Watch (Jan. 21)
• “,” First Amendment Watch (Jan. 15)
• Nikki McCann Ramirez, “,” Rolling Stone (Aug. 26)
• George Freeman, “,” Media Law Resource Center (August 2024)
• “,” ACLU (July 11)

FIRE weighs in with its own free speech recommendations to the President

• David Volodzko, “FIRE’s president to Donald Trump: Here’s how you can help save free speech,” FIRE(Jan. 20)

Below are the four general categories of recommendations made (see link above for specifics):

1. Support the Respecting the First Amendment on Campus Act
2. Address the abuse of campus anti-harassment policies
3. Rein in government jawboning
4. Protect First Amendment rights when it comes to AI

“As president, Trump inherits the privilege and the obligation to defend the First Amendment rights of all Americans, regardless of their viewpoint — and FIREstands ready to help in that effort.”

• See also, “Letter from FIREPresident and CEO Greg Lukianoff to U.S. President Donald Trump, January 20, 2025,” FIRE(Jan. 20)

Justice Ketanji Brown Jackson in free expression mode at the Inauguration?

According to , such “a distinctive collar adorned with cowrie shells . . . are believed to offer protection from evil in African traditions.” (See also, Josh Blackman, “,” The Volokh Conspiracy (Jan. 21))

Excerpts from Virginia Court of Appeals decision in Patel v. CNN, Inc.

• Eugene Volokh, “,” The Volokh Conspiracy (Jan. 21)

An excerpt from today's Virginia Court of Appeals decision in , decided by Judge Rosemarie Annunziata, joined by Judge Vernida Chaney (the opinions weigh in at over 12,000 words, so I only excerpt some key passages).

Abortion picketing case lingers on docket

The cert. petition in the abortion picketing case, with  as lead counsel, has been on the  since July 16 of last year. It has been distributed for conferences seven times, the last being Jan. 21. In his petition, Mr. Clement (joined by ) explicitly called on the Court to “overrule Hill v. Colorado.”&�Բ�����;(See FAN 433, July 31, 2024))

More in the News

• “,” Institute for Free Speech (Jan. 21)
• Josh Blackman, “” The Volokh Conspiracy (Jan. 21)
• Eugene Volokh, “,” The Volokh Conspiracy (Jan. 21)
• “,” The Boston Globe (Jan. 20)
• Jaclyn Diaz, “,” NPR (Jan. 15)

2024-2025 SCOTUS term: Free expression and related cases

Cases decided 

•  (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
•  (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
• (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

Review granted

• (argued Jan. 15)

Pending petitions

Petitions denied

Last scheduled FAN

FAN 453: “‘The lawsuit is the punishment’: Reflections on Trump v. Selzer”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIREas part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIREor Mr. Collins.