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January 20, 2025

President Donald J. Trump

The White House

1600 Pennsylvania Avenue NW

Washington, DC 20500

Dear President Trump,

My name is Greg Lukianoff, and I am the President and Chief Executive Officer of the FIRE(��֭����), a nonpartisan nonprofit organization that defends the rights of all Americans to free speech and free thought.

Since 2008, I have written a letter to each new president upon their inauguration respectfully offering ��֭����'s perspective on how each administration could best help defend free speech and academic freedom on our nation's college campuses. I was pleased that during your first term in office, your administration acted to protect freedom of expression and due process rights by promulgating new Title IX regulations, as I had suggested to you in my January 2017 letter. 

But today, more work needs to be done. Last year was the worst year on record for free speech on college campuses. We’re still facing a deluge of campus censorship cases related to October 7 and its aftermath. More attempts were made to deplatform speakers on campus than any year since FIREbegan tracking in 1998.^[1] And professors are censoring themselves more now than at the height of the McCarthy era.^[2]

In 2022, ��֭����’s mission expanded beyond higher education to defend free speech nationwide. Accordingly, I write to you today to extend my congratulations and to offer ��֭����’s thoughts on how your administration can defend free speech both on and off campus in the coming years.

1. Support the Respecting the First Amendment on Campus Act

With only limited, narrowly refined exceptions, the First Amendment prohibits the government — including government entities such as state universities — from restricting the expressive rights of students and faculty, including the freedom of speech, freedom of assembly, freedom of the press, and academic freedom. University policies that restrict student speech are known as “speech codes.”

Speech codes take many forms. Some institutions maintain “free speech zone” policies that limit student demonstrations and other expressive activities to small and/or remote areas of campus. Hundreds of colleges have implemented “bias reporting systems” to solicit reports of “bias” on campus, which most universities explicitly define to encompass speech protected by the First Amendment. And a depressing number of colleges discourage the invitation of controversial speakers by levying viewpoint-based security costs on the sponsoring student organizations. 

A 2024 FIREstudy found that 15 percent of public institutions maintain a policy with a clear and substantial restriction on student speech.^[3] Worryingly, another 69 percent of public colleges maintain a policy with either a clear restriction on speech or a vague restriction that could too easily be applied to restrict free speech. Only 15 percent of public schools’ speech policies comply fully with their First Amendment obligations, which should be a national scandal.

There is a simple way for your administration, working with Congress, to better protect the free speech rights of our nation’s students. 

Last year, the House of Representatives passed a bipartisan bill that included the Respecting the First Amendment on Campus Act. At public schools, this act ends the use of free speech zones and prohibits colleges from assessing excessive security fees on student organizations bringing outside speakers to campus. At public and private schools, the act encourages institutions to adopt a policy statement recognizing that “free expression, open inquiry, and the honest exchange of ideas are fundamental to higher education.”

At least 23 states have enacted some of these commonsense provisions.^[4] Enacting the Respecting the First Amendment on Campus Act would ensure our country’s public colleges and universities finally protect the basic free speech rights of their students.

2. Address the abuse of campus anti-harassment policies that erode free speech

One of the most common forms of campus speech codes is overbroad anti-harassment policies. Harassment, properly defined, isn’t protected by the First Amendment. But however well-intentioned, colleges often adopt harassment policies so broad that just about any speech that someone doesn’t like can face investigation or punishment. 

The Supreme Court of the United States articulated a speech-protective standard for student-on-student harassment in the landmark 1999 decision Davis v. Monroe County Board of Education, defining it as behavior that is:

so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.^[5]

After 25 years of advocating for students’ rights on campus, FIREknows all too well that definitions of student-on-student harassment that fail to meet this standard will inevitably be used to punish protected speech. Properly applied, the Davis standard ensures that institutions protect students against actual discriminatory behavior, as opposed to punishing students who merely express controversial viewpoints.

During your first term, your Department of Education helpfully promulgated Title IX regulations that included a speech-protective definition of peer-on-peer sexual harassment that substantially incorporated the definition articulated in Davis. In the Biden administration’s now-vacated Title IX rules, the Department of Education adopted an unconstitutional definition of sexual harassment. In the order vacating the Biden rules, a federal judge called the Department’s definition “vague and overbroad.”^[6]

But the current Department of Education uses a substantially similar — and equally unconstitutional — definition of peer-on-peer harassment in the context of Title VI, which prohibits discrimination on the basis of race, color, and national origin. While religion is not a protected class under Title VI, the Department of Education under four consecutive presidential administrations has determined that Jewish students, and students from a variety of faiths, may face harassment tied not to their religious practices, but rather to their shared ancestry or ethnic characteristics. As such, for the past 20 years, the Department of Education has interpreted Title VI to protect Jewish, Muslim, Sikh, Hindu, Christian, and Buddhist students, or any other religious group, against discrimination based on racial or ethnic stereotypes.

Over the past several years, government officials have proposed a variety of policies to better protect Jewish students from anti-Semitic harassment. But, however well-intentioned, many of those proposals — including Executive Order 13899, which you issued on December 11, 2019 — contain constitutional flaws.^[7] Those proposals rely on the International Holocaust Remembrance Alliance definition of anti-Semitism. When used to enforce Title VI, the IHRA definition is vague, overbroad, and viewpoint-discriminatory in ways that pose serious threats to campus expression.^[8]

There is a better path forward that will ensure Jewish students, and students of all faiths, receive protection against discrimination while also safeguarding rights the First Amendment protects. Your administration should therefore support legislation to:

• Codify the Davis definition of peer-on-peer harassment to ensure all education-related federal antidiscrimination law applies consistently in all contexts and avoids threatening protected speech; 
• Add religion as a class explicitly protected under Title VI, with appropriate exceptions for religious institutions and religious student groups; and
• Codify the longstanding Department of Education guidance about how Title VI applies to racial and ethnic stereotypes. 

We also urge you to both rescind Executive Order 13899 to prevent the Department of Education from using the IHRA definition to suppress protected speech and direct the Department to adopt the Davis definition of harassment for its Title VI enforcement actions.

This framework would pass constitutional muster, empower schools and the Department of Education to protect religious students from discriminatory harassment, and avoid the censorial pitfalls of other legislative proposals and executive actions. 

3. Rein in government jawboning

Leaks and disclosures over the past few years have brought to light demands, threats, and other coercion from government officials to social media companies to pressure the companies to suppress particular viewpoints and ideas.^[9] The First Amendment would prohibit the government from mandating this censorship of constitutionally protected speech, but officials achieved the same result through informal pressure. This practice, known as jawboning, is a serious threat to free speech.^[10] Social media companies have a First Amendment right to moderate their platforms,^[11] and users have the right to post whatever a platform chooses to allow. Jawboning interferes with both of these rights. 

Jawboning also threatens the development of truly open speech platforms. Platforms seeking to serve as forums for free and open debate cannot do so if they are coerced to censor users at the government’s behest. This is true regardless of who is in office or whose speech they seek to suppress: Any coercive government demand for content moderation threatens the rights of social media companies and their users.

The Supreme Court has made clear that a government official “cannot coerce a private party to punish or suppress disfavored speech on her behalf.”^[12] But the judiciary is limited in its ability to address jawboning against social media companies because it can respond only when the government’s coercion becomes public knowledge. If the government reaches out to a company privately, users may never know why their posts or accounts were deleted. Without that evidence, users cannot challenge the government’s actions.

There are several ways your administration can take action to prevent jawboning by federal officials:

• Support the passage of legislation to prohibit all federal employees from requesting suppression of protected speech on social media platforms. Until that occurs, FIREencourages you to issue an executive order along similar lines.
• Support the passage of legislation to require transparency when government officials communicate with social media platforms about their content moderation practices. ��֭����’s SMART Act is one such model: It requires government officials to publicly report any communications sent in their official capacity to social media companies about content on their platforms.^[13] This transparency would allow users to know when the government contacts a platform about their content. If the content is subsequently removed, the user may be able to challenge the government’s actions.
• Refrain from threatening or pressuring social media platforms to change their content moderation practices or suppress particular users. Presidents, like all government officials, retain the right to criticize the actions of social media companies. But such criticism must not take the form of threats, implicit or explicit, to bring any government action against the platforms because of their content moderation practices.

The final point applies to threats directed at other parties as well. As a government official, you are obligated to refrain from calls for investigations, prosecutions, or other government retaliation in response to the exercise of First Amendment rights. If followed, these calls will directly violate the rights of those targeted for retaliation.^[14] As president, publicly calling for federal investigations of protected expression chills free speech and sets a censorial example that other government officials tend to follow.

Our nation’s extraordinary legal protections for free expression will not survive without a strong culture of free speech. That culture suffers when government officials threaten Americans for exercising their right to free speech. This is especially true when that official is the President of the United States.

4. Protect First Amendment rights in the regulation of AI technologies

Over the course of history, technologies that make communication easier have aided the process of knowledge discovery: from the printing press, to the telegraph and radio, to phones and the internet. So too have artificial intelligence tools revealed their potential to spark the next revolution in the discovery of knowledge.

The potential power of AI has also prompted officials at all levels of government to move towards regulating the development and use of AI tools. Too often, these proposals do not account for the First Amendment rights of AI developers and users. The First Amendment applies to artificial intelligence just as it does to other technologies that Americans use to create and distribute writings, images, and other speech. Nothing about AI software justifies or permits the trampling of those rights, and doing so would undermine its potential as a tool for contributing to human knowledge.

Your administration can prevent this by rejecting any federal regulation of AI that would violate the First Amendment.

Conclusion

In 2017, I wrote that your administration faces historic challenges both at home and abroad. This remains true today. But the United States is uniquely capable at solving our challenges because of our unparalleled commitment to freedom of speech. Our nation has undertaken a radical experiment by deciding to provide strong protections for all individuals to speak their mind free from government intrusion. This experiment has proven that the best way to understand the world and find solutions to our problems — to build a stronger, more just country — is through free and open discourse. 

As President, you inherit the privilege and obligation to defend that commitment as it is enshrined in the First Amendment to the Constitution. FIREstands ready to help you in that effort.

Sincerely,

Greg Lukianoff

President and Chief Executive Officer

FIRE

CC:

Vince Haley, Director, White House Domestic Policy Council

Linda McMahon, United States Secretary-designate of Education

Senator Bill Cassidy, Chairman, U.S. Senate Committee on Health, Education, Labor and Pensions

Senator Bernie Sanders, Ranking Member, U.S. Senate Committee on Health, Education, Labor and Pensions

Representative Tim Walberg, Chairman, Committee on Education and the Workforce, United States House of Representatives

Representative Bobby Scott, Ranking Member, Committee on Education and the Workforce, United States House of Representatives

Notes

[1] Sean Stevens, Campus Deplatforming Database, ��֭����, /research-learn/campus-deplatforming-database (last visited Jan. 15, 2025).

[2] Nathan Honeycutt, Silence in the Classroom: The 2024 FIREFaculty Survey Report 1 (2024), /sites/default/files/2024/12/Faculty-Report-2024-Final.pdf (“35% of faculty say they recently toned down their writing for fear of controversy, compared to 9% of faculty who said the same during the McCarthy era.”).

[3] ��֭����, Spotlight on Speech Codes 2024, at 2 (2024), /sites/default/files/2024/01/Speech%20Code%20Report_2024_final.pdf.

[4] Enacted Campus Free Speech Statutes, ��֭����, /defending-your-rights/legislative-policy-reform/enacted-campus-free-speech-statutes (last visited Jan. 15, 2025).

[5] 526 U.S. 629, 651 (1999).

[6] Tennessee v. Cardona, No. 2:24-072, 2025 WL 63795, at *4 (E.D. Ky. Jan. 9, 2025).

[7] Exec. Order No. 13,899, 3 C.F.R. 395 (2020).

[8] FIREfor Justice in Palestine v. Abbott, No. 1:24-CV-523, 2024 WL 4631301, at *10 (W.D. Tex. Oct. 28, 2024) (“[T]he Court finds the incorporation of this specific definition [the IHRA’s definition] of antisemitism is viewpoint discrimination.”).

[9] Murthy v. Missouri, 603 U.S. 43, 51-53 (2024); Ryan Tracy, Facebook Bowed to White House Pressure, Removed Covid Posts, Wall St. J. (July 28, 2023), ; ��֭����, What Is Jawboning? And Does It Violate the First Amendment?,  /research-learn/what-jawboning-and-does-it-violate-first-amendment (Nov. 8, 2024); Aaron Terr & Matthew Harwood, Yes, You Should Be Worried About the FBI’s Relationship with Twitter, FIRE(Dec. 23, 2022), /news/yes-you-should-be-worried-about-fbis-relationship-twitter.

[10] For further background, see Brief for Amicus Curiae FIREet al. in Support of Respondents and Affirmance, Murthy, 603 U.S. 43 (No. 23-411), available at /research-learn/amicus-brief-support-respondents-and-affirmation-murthy-v-missouri.

[11] Moody v. NetChoice, LLC, 603 U.S. 707, 716–17 (2024) (holding that social media companies’ deliberate curation of newsfeeds on their platforms is protected by the First Amendment).

[12] National Rifle Association of America v. Vullo, 602 U.S. 175, 190 (2024). For further background, see Brief of Amicus Curiae FIRE et al. in Support of Petitioner and Reversal, Vullo, 602 U.S. 175 (No. 22-842), available at /research-learn/amicus-brief-support-petitioner-and-reversal-nra-v-vullo.

[13] John Coleman, Government Transparency Is Critical When It Comes to Fighting Censorship, FIRE(July 11, 2024), /news/government-transparency-critical-when-it-comes-fighting-censorship.

[14] Hartman v. Moore, 547 U.S. 250, 256 (2006) (“[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” (citations omitted)).