Freedom of Expression After Trump v. Slaughter

Guest Blogger

Daniel Browning

The Supreme Court’s 2025 term included several notable First Amendment cases. For example, in Olivier v. City of Brandon, Mississippi, the Court made it easier for First Amendment plaintiffs challenging a law under which they were convicted to seek prospective relief. In Chiles v. Salazar, the Court held that a Colorado law banning “conversion therapy” did not survive strict scrutiny, at least as applied to “talk therapy.” And in National Republican Senatorial Committee v. Federal Election Commission, the Court struck down restrictions on a political party’s ability to spend on campaign activities in coordination with candidates for office. While these cases are significant in their own right, the most important free speech case of the Court’s 2025 term may not be a First Amendment case at all.

In Trump v. Slaughter, the Supreme Court dealt a final blow to Humphrey’s Executor, a long-standing precedent that insulated some agencies from presidential control by affirming Congress’s power to place removal protections on certain non-inferior officers. In so doing, the Court explicitly endorsed a strong version of the Unitary Executive Theory, under which the President must be permitted to fire at will most—but not necessarily all—non-inferior officers wielding executive power. The constitutional theory underlying the Unitary Executive Theory is grounded in a structural reading of the Vesting Clause and Take Care Clause of Article II. And its underlying political theory is animated by the thought that the power to fire non-inferior executive branch officers at will ensures officers are accountable to the President, who is, in turn, accountable to the people.

Slaughter’s most immediate and direct impact will be an expansion of presidential control over the administrative state. But underappreciated in the public discourse thus far is Slaughter’s likely downstream implications for freedom of expression. Today, as more and more discourse occurs on intermediated platforms, the government often aims to censor disfavored speech by “jawboning,” namely, by pressuring an intermediary who hosts or supports the speech to silence the speaker itself. When the government jawbones, it typically does so by promising to reward the intermediary with regulatory carrots, as in N.R.A. v. Vullo, or by threatening it with regulatory sticks.

The strong Unitary Executive Theory endorsed in Slaughter is likely to supercharge government jawboning of disfavored expression. Every instance of discretionary regulation creates an opportunity for regulators to reward political allies and punish political enemies. At-will removal creates a massive incentive for officers to marshal their regulatory discretion in a way that promotes the President’s agenda, that is, in a way that rewards the President’s allies and punishes her enemies. Where job tenure depends on fealty to the President, the officer, quite literally, puts her job on the line any time she regulates in a manner the president disfavors. Where speech increasingly is intermediated by massive conglomerates who are subject to discretionary government regulation on numerous fronts, we have a very big problem indeed.

After Slaughter, then, we should expect to see more regulators using their offices to target expression the President disfavors. But this is not the only problem. When it becomes a matter of common knowledge that regulators will use their discretion to further the President’s agenda, sophisticated firms will become more wary of hosting any expression the President opposes, lest they draw regulators’ ire. This sort of “voluntary” self-censorship is problematic not only because it restricts freedom of expression but also because it is practically impossible to challenge in court.

That is why it’s so baffling that Justice Gorsuch suggested in his Slaughter concurrence that a unitary executive would help limit government jawboning. After lamenting the broad powers Congress had granted to agencies, Gorsuch cited FCC Chair Brendan Carr’s recent jawboning of Jimmy Kimmel as an example of an agency making use of this unfettered power.

In light of the huge jawboning incentive created by a unitary executive, it’s difficult to even make sense of Justice Gorsuch’s suggestion. As I see it, the most plausible version of the Gorsuchian story is that government officials will jawbone less because they will be accountable to the President for their jawboning, who is in turn accountable to the people. Unfortunately, this story breaks down at both levels of accountability. The President is the one who most stands to benefit by officials jawboning the President’s opponents, so it’s unlikely that mere accountability to the President will do anything to tame jawboning by agency officials.

More plausible perhaps is the idea that the people themselves penalize the President at the ballot box for any government jawboning. While it’s true that public pressure on corporations and government officials can be an important source of countervailing power to resist government jawboning, the ballot box is a poor mechanism for holding the President accountable for jawboning. Even if we grant that people care enough about freedom of speech to factor jawboning into their vote, a vote for President in a two-party system bundles so many different policy preferences together that it’s highly unlikely jawboning is an issue that could ever be electorally decisive. Moreover, because officials of both political parties will have incentives to jawbone after Slaughter, voters may not even have a choice between a pro-jawboning and anti-jawboning candidate.

Even if the ballot box could be a real check, absent a statute that ensures jawboning transparency, such as the recently-proposed JAWBONE Act, voters would lack the information requisite to hold the President accountable for jawboning in the first place. As Justice Sotomayor observed in Vullo, when “a government official makes coercive threats in a private meeting behind closed doors, the ‘ballot box’ is an especially poor check on that official’s authority.” Free speech scholars and civil society organizations have long called for greater transparency surrounding government communications with intermediaries, but Slaughter makes jawboning transparency more important now than ever. 

Daniel Browning is a PhD candidate in Politics at Princeton University and a recent graduate of Yale Law School. You can reach him at daniel.browning@yale.edu.