FCC, Legal Pathways, and the Supreme Court

When President Trump took office on January 20th, 2025, he said in his inaugural address: “After years and years of illegal and unconstitutional federal efforts to restrict free expression, I also will sign an executive order to immediately stop all government censorship and bring back free speech to America. Never again will the immense power of the state be weaponized to persecute political opponents.”

In just the past week, Trump has called critical television coverage of him “illegal,” and said that, “when 97 percent of the stories are bad about a person, it’s no longer free speech.” He’s also threatened ABC’s chief Washington correspondent to, “go after people like you,” for, “hate speech,” and urged his administration to revoke the broadcast licenses of TV stations that are “against” him. He also filed a $15 billion defamation lawsuit against the New York Times and threatened protesters and left wing groups with racketeering lawsuits.

Additionally, Trump has urged his Attorney General Pam Bondi to target his political foes. For her part, Bondi said in a podcast interview, “There’s free speech, and then there’s hate speech. And there is no place — especially now, especially after what happened to Charlie — in our society.” She went on to say, “We will absolutely target you, go after you, if you are targeting anyone with hate speech.” She later attempted to clarify that she was referring to incitements of violence.

As we discussed on the last podcast, FCC Chair Brendan Carr threatened Disney and ABC’s affiliate stations over Jimmy Kimmel’s recent comments saying, “This is a very, very serious issue right now for Disney. We can do this the easy way or the hard way,” and “These companies can find ways to take action on Kimmel, or there is going to be additional work for the FCC ahead.”

The Pentagon has said it will require journalists to sign a pledge refraining from reporting information that isn’t authorized for release, including unclassified information, or risk losing press credentials. And the vice president urged Americans to call the employers of anyone seen celebrating the killing of Charlie Kirk.

The events of the past week add to a long list of moves that already concerned First Amendment defenders, like targeting law firms, museums, academic institutions, and career bureaucrats for expression Trump disagrees with and attempting to criminalize burning the American flag.

On today’s podcast, we make sense of all of this with a longtime defender of the First Amendment, Nadine Strossen. She was the longest-serving president of the ACLU, from 1991 to 2008 and is now a senior fellow at FIRE, the Foundation For Individual Rights And Expression. She is also the author of the 2018 book, “HATE: Why We Should Resist It with Free Speech, Not Censorship” and a professor emerita at New York Law School.

Throughout her career she has defended all manner of expression, ranging from the alt-right in Charlottesville, to free speech on campuses, to pornography, to flag burning, to criticizing the PATRIOT ACT. Perhaps most poignantly, as the daughter of a holocaust survivor, she has spoken in favor of the right of neo-Nazis to march in Skokie, Illinois, a case that predated her at the ACLU.

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