Three ways the government can silence speech without banning it

Los Angeles Times

7 days ago

When most people think of how governments stifle free speech, they think of censorship. That's when a government directly blocks or suppresses speech. In the past, the federal government has censored speech in various ways. It has tried to block news outlets from publishing certain stories. It has punished political dissenters. It has banned sales of 'obscene' books.
Today, however, the federal government rarely tries to censor speech so crudely. It has less blatant but very effective ways to suppress dissent. The current actions of the Trump administration show how government can silence speakers without censoring them.
My quarter century of research and writing about 1st Amendment rights has explored the varied tools that governments use to smother free expression. Among the present administration's chosen tools: making institutions stop or change their advocacy to get government benefits; inducing self-censorship through intimidation; and molding the government's own speech to promote official ideology.
As to the first of those tools, the Supreme Court has made clear that the 1st Amendment bars the government from conditioning benefits on the sacrifice of free speech.
Government employers may not refuse to hire employees of the opposing political party, nor may they stop employees from speaking publicly about political issues. The government may not stop funding nonprofits because they refuse to endorse official policies, or because they make arguments the government opposes.
The 1st Amendment, however, works only if someone asks a court to enforce it, or at least threatens to do so.
The Trump administration has issued orders that withdraw security clearances, cancel government contracts and bar access to government buildings for law firms that have opposed the administration's policies or have advocated for diversity, equity and inclusion, or DEI. Some law firms have sued to block the orders. More firms, however, have made deals with the administration, agreeing to end DEI programs and to do free legal work for conservative causes.
The administration similarly has withheld funding from universities that embrace DEI or that, by the administration's account, have fomented or tolerated antisemitism. Harvard University has resisted that pressure. But Columbia University has capitulated to President Trump's demands, which have included cracking down on protests, giving university officials more control over controversial academic programs and hiring more conservative professors.
The Supreme Court may ultimately declare the administration's gambits unconstitutional, but the White House has already succeeded in leveraging government benefits to make major institutions change their speech.
The Trump administration's second form of indirect speech suppression is even more subtle — intimidating speakers into silence with actions that deter or 'chill' expression without squarely banning it.
That means the government may not regulate speech through vague laws that leave lawful speakers uncertain whether the regulation reaches them. For example, the Supreme Court in 1971 struck down a Cincinnati ordinance that criminalized any public assembly the city deemed 'annoying.'
Likewise, the government may not make people disclose their identities as a requirement for acquiring controversial literature or for supporting unpopular causes. In the classic case, the Supreme Court during the civil rights era blocked Alabama from making the NAACP disclose its membership list.
The mechanisms of chilling speech make it hard to detect, but the current public climate strongly suggests that the Trump administration has dialed down the thermostat.
College and university campuses, which rumbled in spring 2024 with protests against the war in Gaza, have gone largely quiet. Large corporations that challenged the first Trump presidency have fallen into line behind the second, as evidenced by the tech leaders who donated to and attended the president's inauguration. Big donors to some liberal causes have folded up their wallets.
Some of that dampening likely reflects fatigue and resignation. Much of it, though, appears to reveal successful intimidation.
The administration has proclaimed that it is deporting noncitizen students, using their lawful speech as justification. While those expulsions themselves are classic censorship, their hidden reach may be much more effective at stifling expression, even among U.S. citizens. The Trump administration could not lawfully treat citizens as it is treating foreign nationals. But most citizens don't know that. The vivid spectacle of punished protesters seems likely to chill the speech of others.
The administration's final tool of indirect speech suppression is propaganda. The 1st Amendment only bars the government from controlling private speech. When the government speaks, it can say what it wants. That means people who speak for the government lack any 1st Amendment right to replace the government's messages with their own.
In theory, then, every new federal administration could sweepingly turn government institutions' speech into narrow propaganda. That hasn't happened before, perhaps because most governments realize they are just temporary custodians of an abiding republic.
The Trump administration has broken this norm. The administration has ordered the purging of ideologically disfavored content from the Smithsonian museums, implemented book bans in military libraries and installed political supporters to run cultural institutions.
None of those actions likely violates the 1st Amendment. All of them, however, have significant implications for free speech. In what may be the most quoted line in the 1st Amendment legal canon, Justice Robert Jackson declared in 1943 that government should never 'prescribe what shall be orthodox … in matters of opinion.'
A 21st-century federal government can dramatically skew public discourse by honing government speech with the flint of official ideology. Trump has assigned Vice President JD Vance, who sits on the Smithsonian's board, the role of 'seeking to remove improper ideology.' If Vance decides what the Smithsonian can and cannot say about slavery and Jim Crow, for example, then the Smithsonian will teach people only what Vance wants them to learn about those subjects. That influential source of knowledge will push public discussion toward the government's ideology.
When government beneficiaries agree to say what the president wants, when the government intimidates speakers into silence, and when the government sharpens its own speech into propaganda, no censorship happens.
But in all those scenarios, the government is doing exactly what 1st Amendment law exists to prevent: using official power to make speech less free.
Gregory P. Magarian is a professor at Washington University School of Law in St. Louis. He is the author of 'Managed Speech: The Roberts Court's First Amendment.' This article was produced in partnership with the Conversation.