While out of power, the American right was unified in complaining about the left’s speech policing. Now that Republicans control the White House and Congress, free-speech rights and values are dividing the coalition. One camp thinks Republicans should refrain from policing speech; the other favors policing the left’s speech. The second camp seems ascendant, unfortunately, while the first has failed to turn its beliefs into policy.
The Jimmy Kimmel controversy illustrates the fissure. After the late-night host made misleading comments about the ideology of the man accused of killing Charlie Kirk, Federal Communications Commission Chair Brendan Carr urged ABC to “take action” to address the matter, or else “there’s going to be additional work” for his agency. Senator Ted Cruz, who often sides with the Trump administration, objected on free-speech grounds. “That’s right out of Goodfellas. That’s right out of a mafioso coming into a bar going, ‘Nice bar you have here. It’d be a shame if something happened to it,’” he said on his podcast, warning, “There will come a time when a Democrat wins again” and “they will use this power.” Other Republicans, including Senators Mitch McConnell, Dave McCormick, Rand Paul, and Todd Young, also objected.
In contrast, the activist Christopher Rufo argued that the right must police speech when in power to avoid being dominated by the left. “Turnabout is fair play,” he wrote. “We cannot accept the idea that history started in 2025 or that only the Left can legitimately use state institutions. The only way to get to a good equilibrium is an effective, strategic tit-for-tat.” This “tit-for-tat” approach seems to be part of the Trump administration’s strategy. The Department of Education is policing speech on campus. The secretary of state is policing the speech of leftists with green cards and student visas. Attorney General Pam Bondi recently threatened to “go after” hate speech. President Donald Trump himself said that TV networks that employ hosts who criticize him too much should lose their license.
Yet the idea that “turnabout is fair play” is the best policy to protect speech, let alone the only way to spare the right from future abuse, is nonsense. The best method to secure free speech, for all Americans, is to pass laws that safeguard expressive rights—both now, under Trump, and in the future, regardless of who inhabits the White House. If Republicans are serious about protecting speech, they could pass such laws. And all of the Democrats who have criticized Carr’s comments as an attack on speech could help.
I recently reached out to the most principled, nonpartisan free-speech organization that I know of, the Foundation for Individual Rights and Expression, to ask what legislative changes it would suggest to bolster free-speech rights. FIRE responded with five suggestions, emphasizing that it had supported the changes long before the current presidential administration. These ideas are best thought of “not as a response to the current moment,” Carolyn Iodice, the organization’s legislative and policy director, told me, “but as options for removing powers that have been abused by both parties, and which no government official should have had in the first place.”
One item on its wish list concerns the FCC itself: Congress could simply eliminate the FCC rules that regulate content on broadcast television and radio. This would make clear that the agency’s regulators have no role policing the substance of TV and radio programming, as is the case with cable, streaming services, and satellite radio.
A second idea would target “jawboning,” a term for when an official informally pressures a private party, such as a social-media platform, to censor speech that is protected by the Constitution. Doing so can be a First Amendment violation. But when it occurs behind closed doors, critics can’t object. The jawboning that happened during the Biden era, when officials pressured tech companies to take down COVID-related content that they didn’t like, still enrages the right. “Congress should require federal officials to report any communications they have with social media companies about third-party content,” FIRE argues. It has drafted legislative language that would effect the change.
A third item pertains to what happens when the state breaks the law. When federal officials infringe on free speech, the conduct is illegal, but the victims often have insufficient remedies to vindicate their rights. “Federal officials can only be sued to get First Amendment violations enjoined; damages are never available,” Iodice explained. FIRE argues that Congress should pass legislation to let people sue federal officials for damages in these cases.
A fourth suggestion would better protect Americans from frivolous lawsuits filed to retaliate against them for speech that is protected by the Constitution. “The idea is not to win on the merits, but to punish the defendant by dragging them through the court process or getting them to settle (and retract their speech) in order to avoid needing to spend money on a lawyer to defend them,” Iodice said. Most states have passed laws to deter this behavior (they are typically called anti-SLAPP laws) by speeding up the judicial process and requiring people who file frivolous suits to pay the other side’s legal fees. But there’s no federal law of that sort, “so the state laws can often be avoided by filing in federal court,” Iodice said.
A fifth proposal is the passage of the Respecting the First Amendment on Campus Act. The bill, introduced by then-Representative Brandon Williams, a Republican, in the previous Congress, would codify First Amendment protections in public schools. The bill’s provisions include putting an end to “free-speech zones,” which imply that expression is restricted elsewhere on campus, and prohibiting onerous security fees that colleges sometimes impose on organizers of events with controversial speakers. FIRE also believes that Title VI, which prohibits discrimination based on race, color, or national origin, is often interpreted by the federal bureaucracy and colleges in ways that are unduly restrictive of campus speech. The organization wants Congress to adopt a standard, articulated in the 1999 U.S. Supreme Court case Davis v. Monroe County Board of Education, that speech rises to a Title VI violation only if it is “so severe, pervasive, and objectively offensive” and “so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
Other people and organizations with sincere commitments to free-speech rights and values might draft a different wish list. Regardless, the point is that any majority that truly wants to better protect free-speech rights could propose and pass any number of laws that would improve on the status quo. The Democrats suffering under the Trump administration’s policing of speech today failed to act when they were last in the majority, in ways that would have better protected everyone’s ability to speak freely now.
The Republican majorities that now control the House and Senate are not without individual legislators who want to pass laws that would better protect speech. When I contacted Rand Paul’s office, a spokesperson highlighted The Free Speech Protection Act, a bill that Paul has sponsored “to prohibit Federal employees and contractors from directing online platforms to censor any speech that is protected by the First Amendment,” among other provisions. (I reached out to Cruz, too, to find out if he was pushing any of his own free-speech legislation. His office didn’t respond.)
But the Republican leadership has failed to pass legislation that sufficiently addresses the concerns voiced by Paul and others. I reached out to Senate Majority Leader John Thune and House Majority Leader Steve Scalise earlier this week and asked whether they’d support the FIRE proposals or other efforts to better protect free speech, but neither replied.
Many politically engaged people on the right still spend a lot of time online complaining that their speech rights, and those of their allies, were violated by the left in recent years. Instead of merely airing grievances, they might consider doing something useful, such as pressuring allied lawmakers to better protect speech going forward. But my fear is that the MAGA coalition cares far more about punishing the left than about better securing even their own rights.
The post What Republicans Can Do If They Really Want to Protect Free Speech appeared first on The Atlantic.
