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A Free Speech View on the “Free Speech” Executive Order

by Alex Abdo

January 21, 2025

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On his first day in office, President Donald Trump issued an executive order titled “Restoring Freedom of Speech and Ending Federal Censorship.” There’s a version of this executive order that might have given free-speech advocates some hope that the incoming administration would investigate so-called “jawboning”—government pressure to suppress constitutionally protected speech—in good faith. The actual order, though, suggests that its goal is to rewrite history to suit its own agenda, and that it may itself become a vehicle for the new administration to engage in its own form of jawboning.

The executive order has three main sections. The first, titled “Purpose,” takes aim at the Biden administration’s effort to combat alleged misinformation on social media, characterizing those efforts as a campaign to “suppress speech that the Federal Government did not approve.” The second section declares that it is the policy of the United States to protect free speech by ensuring that federal officials do not engage in, facilitate, or spend taxpayer money on “any conduct that would unconstitutionally abridge the free speech of any American citizen.” And the third section directs the Attorney General to “investigate the activities of the Federal Government over the last 4 years” and to “prepare a report to be submitted to the President … with recommendations for appropriate remedial actions to be taken.”

If the executive order were limited to the second section, it would be unobjectionable. That section essentially requires the government to comply with the First Amendment. While there’s a lot of uncertainty around the exact limits that the First Amendment imposes on government pressure related to social media, there’s certainly nothing wrong with reminding federal officials of their duty to comply with the First Amendment.

But the first and third sections of the order give cause for concern.

The problem with the first section is that it is a clear effort at revisionist history. Many people criticized the Biden administration for supposedly violating the First Amendment by pressuring the platforms to take down alleged disinformation about Covid and the 2020 elections. (The Knight Institute, where I work, argued in an amicus brief that the Biden administration crossed the constitutional line between persuasion and coercion in one instance.) When social media users sued over those allegations, though, the Supreme Court correctly rejected their theory, saying repeatedly that the evidence of supposed censorship by the government was “weak.” That case, Murthy v. Missouri, is now back in the lower courts, where the plaintiffs will get a chance to come up with better evidence supporting their claims. That’s of course proper—the question of whether the government in fact coerced the platforms into suppressing protected speech should be decided on the basis of evidence.

But the first section of the executive order simply announces the Trump administration’s preferred narrative, seemingly without regard for what the evidence actually shows.

The first section of the order also focuses narrowly on the supposed censorship of social media by the executive branch, when any sincere effort to root out censorial pressure would be broader. If the administration were genuinely concerned with jawboning, it would also take on the members of Congress who have conducted sham investigations of researchers engaged in constitutionally protected speech. Recall that, under Rep. Jim Jordan’s (R-OH) leadership, the House Judiciary Committee sent threatening demands and subpoenas to researchers around the country to investigate their research into the spread of disinformation online. Whatever your view on the merits of that research, it is unquestionably protected by the First Amendment. And so it was incredibly troubling to see members of Congress abusing their authority in a transparent attempt to stifle protected speech.

Any sincere effort to confront jawboning would also address the massive pressure put on universities by Congress to shut down the protests that took place on their campuses in the aftermath of Oct. 7, 2023.

That leaves the third section, which directs the Attorney General to investigate federal government jawboning and to issue a report. It’s hard to see how this investigation can go forward in good faith. After all, the very first section of the executive order seemingly preempts the report by dictating a position on the very thing that the Attorney General is supposed to investigate. If it’s not open to the Attorney General to simply disagree with the first section of the executive order—and to find, as did the Supreme Court, that evidence of federal coercion is “weak”—then it’s hard to expect anyone to take the report seriously.

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