TGIF: Free Speech Restored?

Don't get accustomed to me praising Donald Trump, but exceptions will occur now and then. Trump is no principled friend of liberty, not by a long shot. Judging by most of his actions and words, he recognizes no impenetrable boundary between the government and the private sector, the market economy. We may infer that he sees the central government and the country itself as a company that he runs with few restraints. He seems to imagine himself as the chairman and CEO of the United States, with only a toothlessly subservient board of directors. I need only point to his trade and immigration policies to support this inference. It shows itself in many other ways.

Trump is a collectivist of the nationalist variety. He's a devotee of industrial policy, in which the central government aspires to guide the free-enterprise economy in lots of ways. For him, free-ish enterprise may be permitted when it doesn't conflict with his preferences—but only then. He decides. Put another way, he is an advocate of the corporate state in an earlier sense of the term. It doesn't mean that government does the bidding of large corporations. Rather, it means the nation-state is seen as a single organism with one set of interests. Society is the body (Latin: corpus), and the ruler—Trump—is the head.

But (cautious) credit should be given where it is due. Before that, however, something must be said about how even good things are done. Government by executive order and emergency declaration is ominous. The division of powers and the checks and balances among the three branches have at least the potential to stave off government threats to liberty. Those checks should be strengthened. The Department of Education and USAID, to name just two federal entities, should unquestionably be abolished! But is autocratic decree a good thing? It's certainly satisfying to see employees and supporters of those agencies panic over their closing, but the issue is bigger than that. The next president may undo any pro-liberty decrees and issue new ones inimical to liberty. Precedents matter.  An imperial presidency, one that can amend the Constitution unilaterally, does not serve freedom and the market economy.

Now for the credit. On Jan. 20, 2025, shortly after his inauguration, Trump signed an executive order titled "Restoring Freedom of Speech and Ending Federal Censorship" in response to one of the worst things Joe Biden and his administration did. They had effectively suppressed the speech of Americans by threatening—at least implicitly but in no uncertain terms—private social-media companies if they did not suppress lawful posts about the Covid pandemic and the Hunter Biden laptop. In other words, as a judge put it, Biden set up an Orwellian ministry of truth to crack down on dissent and inconvenient facts. Lawful speech was smeared as disinformation and misinformation, perhaps of foreign origin. Even true statements were to be suppressed, however subtly, if they undermined confidence in the government's objectives. Individuals were maligned.

That is not supposed to happen in a free society, where freedom of speech and press are enshrined in the First Amendment to the Constitution, which theoretically, if not actually, restrains the exercise of government power. The government may not censor; therefore it may not use private firms to do what it may not do. The government's bad conduct was challenged in court, initially successfully, but the Supreme Court eventually ruled against the free-speech advocates, claiming they had no standing. (See Murthy v. Missouri.)

So kudos to Trump for issuing an executive order to prevent such misconduct from happening again. The executive order spoke the truth with its opening words:

The First Amendment to the United States Constitution, an amendment essential to the success of our Republic, enshrines the right of the American people to speak freely in the public square without Government interference.  Over the last 4 years, 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.  Under the guise of combatting “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 goes on to declare that it is now the policy 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;

ensure that no taxpayer resources are used to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen; and

identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech.

It then declares that "no Federal department, agency, entity, officer, employee, or agent may act or use any Federal resources in a manner contrary to ... this order."

It also directs that the "Attorney General, in consultation with the heads of executive departments and agencies, shall investigate the activities of the Federal Government over the last 4 years that are inconsistent with the purposes and policies of this order and prepare a report ... with recommendations for appropriate remedial actions to be taken based on the findings of the report."

Why did I give only cautious credit? Here's why: "Media outlets must not cave to Trump’s lawfare." As the Foundation for Individual Rights and Expression (FIRE), put it. "What happens to freedom of the press when the president can bully media outlets he doesn’t like into paying big money to end his meritless lawsuits against them? Buckle up. We’re about to find out." FIRE points with alarm to "Trump’s dictatorial appetite to use lawfare to silence or punish outlets that publish content he doesn’t like." 

This is ominous. With Trump, there will be no rest.