The past decade or so has been a particularly grueling era for nonpartisan defenders of free speech.
From the beginning of the first Trump administration, some Democrats and liberals proposed deputizing the Federal Communications Commission and other federal bureaucracies as the arbiters and punishers of “misinformation.” Now, under the second Trump administration, the survival of the American ideal of freedom of speech is at an inflection point. Assaults on dissent and the free press from the new administration and its allies have many on the left belatedly realizing how absolutely necessary it is to protect the right to express unpopular speech — including speech that offends those in government.
As unpopular as ‘the media’ might be right now, without a free press there can be no free speech writ large.
Here’s the ugly truth: The constitutional right that affords racists the legal protections to spew their insidious ideas is the same right that protects social justice activists from government persecution. And the right that protects journalists’ rights to cover the powerful without fear of retribution is the same right that protects bad faith actors to spew lies about election fraud.
There are limits to these rights, of course, including deliberate or reckless defamation. That’s how a MAGA troll can repeat Trump’s “big lie” about the 2020 election with impunity, but if that same troll makes a baseless accusation against, say, an innocent election worker, that’s defamation.
The 1964 Supreme Court decision New York Times Co. v. Sullivan is what set the standard that exists today. Constitution law professor Stephen Wermiel characterized the decision as establishing “the important principle that First Amendment guarantees of freedom of speech and press may protect libelous words about a public official in order to foster vigorous debate about government and public affairs. This landmark decision constitutionalized libel law and arguably saved the Civil Rights Movement.”
But in January, MAGA billionaire Steve Wynn petitioned the U.S. Supreme Court to “correct its past mistakes” and overturn this 60-year-old precedent. Wynn’s lawyers wrote in their petition:
“Sullivan is not equipped to handle the world as it is today — media is no longer controlled by companies that employ legions of factcheckers before publishing an article. Instead, everyone in the world has the ability to publish any statement with a few keystrokes. And in this age of clickbait journalism, even those members of the legacy media have resorted to libelous headlines and false reports to generate views. This Court need not further this golden era of lies.”
This is music to the ears of MAGA podcasters and culture warriors, even though — much like the left’s calls for laws banning “disinformation” — the right seems oblivious to the fact that overturning Sullivan would curtail their own speech, too.
Make no mistake: if we lose Sullivan, we will have lost freedom of the press. And as unpopular as “the media” might be right now, without a free press there can be no free speech writ large. The rich and powerful can simply threaten litigation, and their allies in government can threaten criminal and civil sanctions — and that will be enough to sufficiently chill free speech to the point that it ceases to exist as we once knew it.
Mistakenly believing they had won America’s hearts and minds on any number of cultural issues during the early Trump years, many Democrats and progressives fooled themselves into thinking they’d always be the good guys running the institutions and decreeing certain forms of dissent beyond the pale. That allowed the “free speech warrior” mantle to be disingenuously claimed by the MAGA right — which is every bit as thin-skinned, intolerant and censorious as any group of purple-haired campus activists you’re likely to find (except MAGA has actual power).
In fact, the threats to free speech posed by MAGA make campus speech codes and the threat of “cancel culture” censorship seem positively quaint.
The right seems oblivious to the fact that overturning Sullivan would curtail their own speech, too.
With a unified Republican government, a 6-3 conservative Supreme Court and corporations tripping over themselves to abandon their past social justice pandering, MAGA is the establishment now. They’ve spent the past several years banning “divisive topics” from schools — including legitimate history books that discuss America’s history of prejudice and other grave injustices. Add a Republican president that regularly files bogus nuisance lawsuits to make his critics’ lives “miserable,” who calls for bans and deportations as a consequence of speech he doesn’t like, who’s bent on “retribution” and daring anyone to stand up to his unconstitutional power grabs — and Trump and MAGA pose the greatest threat to free speech in modern times.
In less than a month in office, Trump and his administration have launched investigations into media organizations they dislike (including for reporting on ICE raids), barred news outlets from the Oval Office for not using their preferred terminology (i.e. speech policing) and accused media outlets of “doxxing” for reporting on Elon Musk’s unvetted workers doing official government business. The FCC has undergone apparent “regulatory mission creep,” as famed First Amendment attorney Robert Corn-Revere described it, with new Chair Brendan Carr reviving what appear to some as “politically motivated” complaints against three broadcast networks (including NBC). And just this week, Musk called for the imprisonment of “60 Minutes” journalists.
This is far from a complete list. But the Trump administration’s hostility to a free press has been so egregious that the MAGA-friendly Wall Street Journal editorial board this week saw fit to decry it in plain English.
The Trumpist hostility to First Amendment protections for the press is not new. Florida Gov. Ron DeSantis made advocacy for overturning Sullivan a part of his 2024 presidential campaign platform. MAGA-adjacent free speech tourists of the “heterodox” commentariat have called for Sullivan to be “revisited.”
Supreme Court Justices Neil Gorsuch and Clarence Thomas have both suggested the court rethink the decision. That still leaves seven justices who in 2023 affirmed their support for Sullivan as the law of the land. But after the overturning of Roe v. Wade and the Court’s conservatives granting the president sweeping immunity protections in 2024 — you could be forgiven for not having the full faith of SCOTUS’ conservative majority to stand up for individual rights and against executive power.
Now would be a great time for the Democrats and other voices on the left to abandon any predilections for petitioning authorities to set the boundaries of truth and acceptable speech. The messiness of free speech is the ally to justice, not unaccountable authorities appointed by partisan politicians.
And for any actual remaining free speech absolutists on the right, this is the moment to unequivocally call out your own team. You might despise “the woke” and loathe the hypocrisy of would-be censors in the Democratic Party — but Republicans are in charge of almost everything now, and the loudest and most powerful voices in their sphere currently pose the greatest existential threat to the First Amendment.
If you care at all about the freedom to express dissent, to investigate the powerful and to hold the government accountable — even if it means saying “mean” things about them — New York Times v. Sullivan must survive. Without it, America is not a “free country.”
