Free speech is under direct, frontal attack in the U.S.
Among the many constitutional transgressions by the Trump administration, this is the one that could change the face of American society. In the words of civil rights leader Frederick Douglass, “No right was deemed by the fathers of the Government more sacred than the right of speech … That, of all rights, is the dread of tyrants. It is the right which they first of all strike down. They know its power.”
Americans so far don’t seem to likewise appreciate the stakes. Free speech means the freedom to think. Without the freedom to think, we lose what makes us human.
The Supreme Court has emphasized that the First Amendment enables “all persons … to think and speak as they wish, not as the government demands.” The right to think and speak extends to government employees, too — with rare exceptions, the government is barred from “conditioning hiring decisions on political belief and association.” Nor can it retaliate against people for having engaged in “protected speech,” which prominently includes political messaging. The First Amendment forbids the federal government from using its massive financial, investigative and law enforcement powers “to punish or suppress disfavored expression.”
These basic premises of First Amendment law have gone out the window since Jan. 20, 2025.
Trump’s assault on the First Amendment was made explicit in numerous executive orders identifying what courts call “disfavored expression.” These include content implicating diversity, equity and inclusion; environmental justice; so-called “ideologues who deny the biological reality of sex;” “anti-Jewish racism in leftist, anti-American colleges and universities;” and law firms Trump claims were “involved in the weaponization of government” for having represented his “political opponents in the 2016 and 2020 elections.”
On May 5, District Judge Beryl A. Howell in Washington, D.C. issued a 102-page ruling declaring one of the law firm orders “null and void” under the First Amendment.
Already, the Trump administration has taken unprecedented actions in retaliation against universities, students and law firms for engaging in speech the president doesn’t like — including arrests, detentions, withholding federal funding, withdrawing security clearances and canceling federal contracts “to ensure alignment with the interests of the American people.”
In two other executive orders, Trump singled out individuals by name for having engaged in disfavored speech. “While serving as an administrative staff assistant at the Department of Homeland Security,” Trump asserts, Miles Taylor “stoked dissension by manufacturing sensationalist reports on the existence of a supposed ‘resistance’ within the Federal Government that ‘vowed’ to undermine and render ineffective a sitting President.”
Trump also specifically called out Chris Krebs, his former head of the Cybersecurity and Infrastructure Security Agency, who earned his ire by declaring that the 2020 presidential election was safe. Trump now claims that Krebs “promoted the censorship of election information, including known risks associated with certain voting practices, and falsely and baselessly denied that the 2020 election was rigged and stolen, including by inappropriately and categorically dismissing widespread election malfeasance and serious vulnerabilities with voting machines.” He directed Attorney General Pam Bondi and Secretary of Homeland Security Kristi Noem “to take all appropriate action to review Krebs’ activities as a Government employee.”
Not only are these words chilling, but they will have an unmistakable chilling effect on others who dare to speak in a way that crosses Trump.
The Constitution does not mention freedom to think, but the Supreme Court in 1937 acknowledged in Palko v. Connecticut that “freedom of thought … is the matrix, the indispensable condition, of nearly every other form of freedom.” In Ashcroft v. Free Speech Coalition, a 2002 case that struck down parts of the Child Pornography Prevention Act, Justice Anthony Kennedy similarly explained for the majority that “First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”
Philosophers Jeremy Bentham and Michael Foucault famously explored the implications of coercive thought control through the concept of the “panopticon,” a central watchtower that allows prison guards to see inmates housed in inward-facing cells arranged in a circle around the tower. Because the inmates cannot see into the tower, they cannot know whether they are being watched at any given moment. So they assume that they are.
Writing in the late 18th century, Bentham hypothesized that the knowledge of being watched would lead prisoners to self-regulate, conforming their behavior to what the government wants and creating a “perfect” prison. In the 1970s, Foucault extended Bentham’s idea to critique the coercive nature of the government and society in general. He argued that modern power structures operate as systems of social control — if people believe they can be surveilled by the government at any time, they begin to monitor themselves.
The panopticon is a metaphor that is most often raised in discussions of the sociological effect of digital surveillance. But it is also a useful tool for helping people grasp the gravity of Trump’s anti-speech agenda. After only a few months in office, Trump has already managed to instill fear in enough Americans that many now pause before speaking publicly or posting something on social media that might trigger retribution from the federal government.
If that trajectory continues unabated, it’s not just the rule of law that will be over in America —it’s freedom itself. “Without Freedom of Thought,” wrote Benjamin Franklin in 1722, “there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech.”
Kimberly Wehle is author of the book “Pardon Power: How the Pardon System Works — and Why.”
