The Trump Administration’s War on Free Speech, the McCarthy Analogy, and the Limits of the First Amendment-- Part One

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Genevieve Lakier

[This is Part One of a two part essay.]

The United States is currently facing the most serious attack on freedom of speech that anyone reading this has likely experienced in their lifetime. Over the past hundred or so days, the Trump administration has attempted to undermine the independence of not merely some of the institutions that traditionally fuel and shape the democratic public sphere in the United States, but virtually all of them. The administration has used the levers of federal power to punish, or threaten to punish, members of the news media, universities, law firms, libraries, not to mention many of the federal scientific and data-gathering bureaucracies. Even major public cultural institutions like the Kennedy Center and the Smithsonian have been targeted as part of this campaign of what can only be described as a project of ideological purification.  

In the face of this concerted attack on the independence of the democratic public sphere and, by proxy, the very foundations of American democracy itself, it is natural to seek analogies from other times and places to help make the scary novelty of this moment somewhat less so. Two sets of comparisons are clearly relevant. The first is to similar campaigns of ideological purification that have occurred recently in other countries—for example, India, or Mexico, or Hungary. The second is to campaigns of political repression that occurred in the United States in previous decades—the most obvious parallel being the campaign of political repression that occurred during the Second Red Scare, or the McCarthy Era.

Both analogies are helpful for understanding what the current wave of repression might be designed to accomplish, as well as what is and is not unique about it. For First Amendment scholars, however, the analogy to the McCarthy Era is particularly revealing. This is because, although the political character of the Trump administration’s speech repression differs in important ways from that which characterized the Second Red Scare—in particular, it is focused far more on political opposition, not just radical groups and speakers, and is therefore less bipartisan and more authoritarian in character (more akin in that respect to the repression in contemporary Hungary than 1950s America)—its methods are remarkably similar to those that government actors employed during the McCarthy Era.

Just as was true during the Second Red Scare, the Trump administration has not been relying upon the censorship tools most familiar to courts—namely, the direct, usually criminal, prohibition of speech that was the favored tool of repression during the First Red Scare and that modern First Amendment law consequently developed in large part against.  Instead, like government officials during the McCarthy Era, the administration has been relying upon other ways of chilling speech: pledges to refrain from certain kinds of speech or association in order to maintain employment or receive government benefits (what during the McCarthy period were generally called “loyalty oaths”); intrusive information requests targeted at unpopular speakers or groups, mass firings of potentially disloyal workers, and speech-related deportations that seek to chill disfavored speech. 

These were, of course, not the only tools of speech repression that officials used during the Second Red Scare.  Officials also used the criminal laws to punish Communist speech and association, as the Supreme Court’s infamous decision in Dennis v. United States illustrates. But doing so was controversial and costly, in part due to the echoes it raised of the past. Hence, government actors primarily relied upon other, more indirect, but nevertheless often extremely effective mechanisms to exclude radical speakers from the public sphere.

The fact that the Trump administration is relying upon many of the same tactics of speech repression that state and federal officials relied upon during the Second Red Scare is no coincidence. It reflects how officials respond to the constraints imposed by courts by exploiting areas of doctrinal ambiguity and judicial deference.  

The similarities in the tactics used then and now also raise important questions for First Amendment scholars, however. This is because many of the most distinctive features of contemporary First Amendment law—its formalism, its hatred of balancing, its commitment to the protection of extreme and hateful viewpoints—can be understood as a reaction to the problems of the McCarthy Era, and more specifically, to the failure of courts to adequately protect the free speech interests of those targeted by the anti-Communist campaigns. The repetition of similar tactics today, and their vigorous contestation in courts throughout the country, thus provides an important opportunity to analyze whether and to what extent First Amendment doctrine has improved from what it was seventy years ago. How well does the contemporary doctrine safeguard free speech values against what we might describe as the Second Generation censorship tools employed during the McCarthy Era and by Trump officials today? And what changes need to be made to make First Amendment law more effective against these tools in the future?

These are the central questions that the current moment poses for First Amendment scholars. They are questions that it is obviously much too early to be able to answer definitively. The owl of Minerva is very far from taking flight, and the many First Amendment cases that the administration’s actions have spawned have only just started wending their way through the courts. But there are some important lessons we can learn, even at this early moment.

1. The Rule Against Content Discrimination Will Not Save Us

A primary focus of the post-McCarthy Court’s First Amendment jurisprudence has been the effort to limit the government’s capacity to sanction speech, either civilly or criminally, because of its expressive content. Most famously, in Brandenburg v. Ohio, the Court rejected the loosey-goosey balancing test it employed in Dennis and interpreted the First Amendment to impose very significant limits on the government’s ability to punish revolutionary speech, or other speech that conveyed a message that officials feared would incite lawbreaking. But Brandenburg was not unique. In many other cases, the Court interpreted the First Amendment to make it generally very difficult for the government to civilly or criminally punish speech because of its expressive content.

By reading a strong rule against this kind of content discrimination into the First Amendment, the Court was clearly intending to correct for the mistakes of the past by more vigorously protecting the right of speakers to engage in subversive or merely oppositional speech. And it achieved this aim, to some degree. The Trump administration would clearly love nothing better than to throw its critics into jail, or to win steep defamation judgments against them. (Indeed, Trump keeps threatening to do both). But the administration cannot easily make good on these threats, given the post-McCarthy Era precedents. This is obviously a very good thing. There are, after all, few more effective ways of silencing your critics than putting them in jail or bankrupting them.  The result is that the current wave of repression is less repressive than it would have been in a world absent a strong First Amendment rule against content discrimination. It is still plenty repressive, however, as the past few months have clearly demonstrated.

This means that more attention needs to be paid—and indeed, is all of a sudden being paid—to the other ways in which the First Amendment limits the government’s ability to control public expression than by restricting its power to criminally or civilly sanction speech because of its content. And when we turn to these other reaches of First Amendment law, what we find is that the strength of the doctrinal protections, and the improvements that the courts have made to the doctrine, since the 1950s, varies considerably.

2. The Jawboning Case Law is Turning Out to Be Really Important

One area in which First Amendment doctrine is much more able today to defend private expressive autonomy against campaigns of ideological purification and speech control than was true seventy years ago is in the protection it provides against efforts by government officials to pressure private companies or persons into doing their dirty work for them by threatening them with negative consequences if they do not suppress either their own speech or that of others, or disassociate themselves from disfavored groups.

These governmental efforts—which are often referred to in academic and popular discourse as “jawboning”—represent one of the most important mechanisms of the Trump administration’s speech repression.  Indeed, many of the administration’s attacks on law firms, universities, foreign students, and contractors can and should be conceptualized as acts of jawboning, insofar as they function to chill speech by threatening speakers and speech platforms with serious financial or legal consequences if they do not either shut up or begin speaking in ways that the administration approves.

Jawboning was also an important tactic of political repression during the McCarthy Era. Indeed, a primary goal of the House Committee on Un-American Activities was, as Judge Edgerton of the D.C. Circuit put it in a 1948 opinion, “to do by exposure and publicity what it believes may not validly be done by legislation.”  These efforts to publicly tar leftists with the brush of being a subversive and thereby pressure others into disassociating from them, in order to avoid being similarly tarred, were often extremely successful—as Ellen Schrecker and others have documented. Yet the courts had a hard time conceptualizing these efforts as acts of speech suppression within the terms of the existing free speech order, given the sharp divide that the cases then drew between state and private action. Courts tended to view the failure of those publicly identified as subversives by government actors to “attract audiences, enlist members, or obtain contributions as readily as before” they were targeted as “sanctions applied by public disapproval, not by law”—as Justice Jackson put it, in a 1951 concurrence, and therefore as something that, notwithstanding whatever chill it might impose on protected expression, was simply not something that raised First Amendment concerns. When courts construed these acts of public stigmatization as unconstitutional, it was because they were understood to violate Fifth Amendment due process, not First Amendment speech rights.

Contemporary judges have a much easier time recognizing these kinds of jawboning campaigns as a First Amendment problem. That they are able to do so is a function in part of the Warren Court’s efforts to develop a more anti-formalist First Amendment jurisprudence, one that focused far more than prior doctrine on the chilling effects of state actions rather than just their formal character. These efforts produced the foundational decisions in this line of cases, including Smith v California and Bantam Books v. Sullivan.

But the strength of the First Amendment protections against jawboning is also a product of much more recent developments—chief among these, the intense fight about the regulation of speech on social media that occurred after companies like Facebook and Twitter began kicking speakers, including President Trump, off their platforms for violating their rules. Litigants went to court to argue that the deplatforming of (in many cases, conservative) speakers was in fact a consequence of state, not purely private, action—and more specifically, that it was a response to the pressure tactics of Democratic politicians.  The flood of cases in which these kinds of arguments were made, and the sympathy that some of the justices clearly felt towards them, ultimately led the Court to agree to hear two jawboning cases in one term, after sixty years of not hearing any.  The result was the unanimous decision in NRA v. Vullo which reaffirmed, and in some respects expanded on the anti-jawboning rule the Court first announced in Bantam Books.  It is this case, more perhaps than any others, that today shores up the legal resistance to the Trump administration’s intimidation campaigns. Indeed, the complaint Harvard filed to challenge the Trump administration’s funding cuts relied heavily on Vullo; so too did the opinion issued last week that permanently enjoined the Executive Order that President Trump issued against the law firm Perkins Coie; and so too did the district court opinion that, just a few weeks ago, allowed an ambitious First Amendment challenge to the administration’s speech-focused deportation policy to proceed.

There is a certain irony to the fact that it was Republican concern with Biden administration efforts to jawbone the social media companies that helped lead to the reaffirmation of a rule that now is being used, so far quite successfully, to defend against efforts by the Trump administration to jawbone everyone but the social media companies. Nevertheless, the fact that the decision that is currently playing such an important role in challenging Trumpist speech suppression is not only so recent but a product of the culture wars that help motivate that repression also suggests how contingent the strength of this doctrinal safeguard may be, and how much remains to be done to shore it up. Indeed, until Vullo, the lower courts had proven quite inconsistent in their approach to First Amendment jawboning challenges.

If courts fail to heed the clear signal of the unanimous Court in Vullo that the anti-jawboning rule should be interpreted broadly, there is still a possibility that the First Amendment will provide only incomplete protection against the Trump administration’s jawboning.  But interpreted on their own terms, Bantam Books and Vullo recognize how speech repression operates in practice and provide the doctrinal tools to guard against the often subtle and informal forms that such repression can take. This is a very good thing, because if there is any style of governing that best characterizes that of President Trump (like Senator Joe McCarthy before him) it is the mode of the bully—precisely the kind of government action that the jawboning precedents protect against.

Genevieve Lakier is Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School. You can reach her by e-mail at glakier@uchicago.edu.