Trump Memo Threatens to Expand Censorship of Political Speech

For a censor, a crisis is a terrible thing to waste.

A century ago, the government exploited World War I to imprison socialists and anti-war activists. Decades later, fear of Soviet influence fueled McCarthyism. More recently, the Covid-19 pandemic gave governments worldwide an excuse to suppress dissent in the name of fighting “misinformation.”

Now, US officials are seizing on a horrific act of violence—and the shockwave it sent through the nation—to justify censorship.

The assassination of political activist Charlie Kirk was a tragedy. His death serves as a stark reminder that the difference between speech and violence is the difference between civilization and barbarism. In its aftermath, we must remember that neither violence nor censorship is the answer to words deemed offensive or even dangerous.

Unfortunately, that lesson is lost on many of our leaders. Scores of employees across a range of industries face punishment for comments about the assassination—often as a result of government action or pressure.

And the worst may be yet to come.

The White House says it’s “exploring a wide variety of options” to “address left-wing political violence and the network of organizations that fuel and fund it.” The administration appears to interpret “fuel” broadly, effectively sweeping protected political advocacy into its dragnet.

Last week, President Donald Trump issued a memorandum directing the National Joint Terrorism Task Force to coordinate a comprehensive strategy to “investigate, prosecute, and disrupt” political violence. But the memo blurs the line between ideology and violence, laying the groundwork for surveillance and investigation of political opponents.

It orders the US attorney general to identify “recurrent motivations” and other “indicia” common to groups that coordinate “terrorist acts” to “prevent potential violent activity,” including “organized doxing campaigns”—which, in the administration’s apparent view, can mean nothing more than noting the presence of law enforcement in public. 

And what might count as indicia of political violence? The memo itself supplies an answer: “anti-Americanism, anti-capitalism, and anti-Christianity,” “extremism on migration, race, and gender,” and “hostility towards those who hold traditional American views on family, religion, and morality.” Advocating political views that clash with government orthodoxy thus becomes grounds for suspicion of criminal activity. 

The memo targets groups that “perpetuate this extremism,” engage in “radicalization,” or “encourage” violence. Illustrating the breadth of these categories, an accompanying fact sheet quotes Trump vowing that his administration will “find each and every one of those who contributed” to Kirk’s assassination. In Trump’s view, that includes those on the “radical left” who compared “wonderful Americans like Charlie to Nazis and the world’s worst mass murderers and criminals.” Meanwhile, White House deputy chief of staff Stephen Miller claims that simply calling Immigration and Customs Enforcement authoritarian “incites violence and terrorism.”

To be clear, the First Amendment protects calling someone a Nazi or authoritarian, just as it protects the president calling his political adversaries “fascists” who “live like vermin,” or Miller calling the Democrats a party “devoted exclusively to the defense of hardened criminals, gangbangers, and illegal alien killers and terrorists.” 

The First Amendment doesn’t protect incitement, but that exception narrowly applies only to speech intended and likely to provoke immediate unlawful action. Speech that is merely hyperbolic or that arguably might inspire violence at some unknown future time remains protected.

That distinction is critical. Without it, whoever is in power would always have an excuse to silence opponents by citing past incidents of violence supposedly linked to their rhetoric. 
 
Just last week, a shooter opened fire on an ICE facility, allegedly targeting agents but killing and injuring detainees. Earlier this year, Vance Luther Boelter was charged  with murdering Minnesota Democratic Rep. Melissa Hortman and her husband—and police found a list of nearly 70 targets in Boelter’s vehicle, including abortion providers. Four years ago, protesters stormed the US Capitol.

Does this mean it should be illegal to label ICE “fascist,” call abortion “murder,” or dispute election results? No. That would gut the First Amendment’s core protection of political advocacy.

Political violence, thankfully, remains rare. But in a country of 340 million, it will never be eliminated. We can’t allow the bounds of political debate to be dictated by the actions of a handful of disturbed individuals. 

The memo also presents this danger with its targeting of tax-exempt entities “indirectly financing political violence.”

Intentionally funding the commission of specific crimes is prosecutable. But financially supporting political advocacy isn’t, even if some individuals associated with an organization or cause break the law. The administration shouldn’t repeat the Internal Revenue Service’s mistake under President Barack Obama of subjecting conservative nonprofits to heightened scrutiny, which later forced the IRS to admit wrongdoing and apologize.

The memo’s overall message is chilling: If you dissent, you’re a suspect.

That message is reinforced by an executive order purporting to designate “Antifa” as a domestic terrorist organization even though, like QAnon or Occupy Wall Street, it isn’t a single organization—it’s a decentralized political movement. While adherents to any movement who commit violence should be punished, the order raises the specter of harsh punishments for anyone who adopts the Antifa label or simply espouses ideas the administration links to it.

Vice President J.D. Vance insists the administration isn’t going after constitutionally protected speech. Yet its loose rhetoric, exclusive focus on opposing views, and poor free-speech record make that assurance ring hollow. 

Throughout Trump’s second term, his administration has retaliated against disfavored speakers, often running into First Amendment walls in court. The Federal Communications Commission chairman leaning on ABC to punish Jimmy Kimmel is just the latest overreach. And there is no sign it’s letting up.

None of this is to say we must accept the current state of political discourse. We can strive to lower the temperature. But the way to do that is through engagement, persuasion, and the ballot box—not government coercion. As Justice Louis Brandeis put it, the remedy is “more speech, not enforced silence.” 

More speech is messy and difficult. But if the government can enforce silence by collapsing the distinction between advocacy and violence, no political movement is safe.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Aaron Terr is director of public advocacy for FIRE.

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