The First Amendment Is in Increasing Danger Under a Trump Administration – Rewire
Analysis Law and Policy
Jun 19, 2017, 12:18pm Lisa Needham
One of the best ways to ensure people don't exercise their First Amendment rights is to make it far too hazardous and costly to do so. That is what is happening right now.
We live in an era of increasing crackdowns on public protests and whistleblowing: real, and increasingly effective, attacks on the First Amendment. The First Amendment, of course, promises us the right to free speech, but it also promises us the rights to assemble and to associate. In practical terms, this generally means that you can associate with whomever you choose to, assemble together in any fashion, and speak out against the government in whatever way you see fit.
One of the best ways to ensure people dont exercise their First Amendment rights is to make it far too dangerous and costly to do so. That is what is happening right now.
Attempts to brutalize protesters and criminalize protest are nothing new. The 2008 Republican National Convention (RNC), for example, saw police firing chemical agents and projectiles at peaceful crowds and mass arrests. The overcharging of arrestees that followed the convention only added to the feeling of dystopia. Prior to even engaging in any protests, eight individuals were arrested and eventually charged under an anti-terrorism statute. Why? Because they had some banal items like light bulbs, which police alleged could be filled with paint or chemicals and thrown, along with more obviously problematic things like U-locks (to chain themselves to things) and caltrops (steel points you put on the street to deflate tires). But the key point: They hadnt done a thing with those objects yet, so the anti-terrorism charge was more than a bit of a stretch. (Terrorism charges are more typically leveled when people are found with bomb-making material, or are found with innocuous material but have detailed how they plan to use that material to make an explosive.) Those charges were later dropped because the prosecutor felt that it would distract the jury.
As grim as the RNC charges were, theyve got nothing on the latest episode of overcharging protesters. More than 200 people were arrested for protesting during President Trumps inauguration in January. Most protesters were originally charged with only one count of felony rioting but, after very few of them pleaded guilty, a new grand jury indictment was returned that charges nearly all of them with eight felony counts, including inciting to riot, conspiracy to riot, and destruction of property.
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Make no mistake: Many of these individuals were first punished for exercising their right to protest, and are now being punished for exercising their right to demand a trial rather than a plea deal. The government is also attempting totry all the defendants together, which brings up serious questions of fairness.
As reported by BuzzFeed, Jason Flores-Williams, an attorney representing three of those defendants, has already asked District of Columbia Superior Court Judge Lynn Leibovitz, who is presiding over all of the Inauguration Day prosecutions, to require a separate trial for one his clients, rather than agree to the governments plan to try defendants together.
There is a spillover prejudicial effect where when evidence against one person as I said ends up in the jurys mind being evidence against everyone else who was there, regardless of whether that evidence was actually against them or proven against them in any direct or specific way, Flores-Williams toldBuzzFeed.
The Inauguration Day protesters face felony charges that carry up to ten years in prison. Thats far too high a price to pay.
Equally chilling, six journalists were also arrested during the inauguration and charged with felony rioting. (Charges have since been dropped for all but one of the journalists).
Another way to ensure that people arent able to speak truth to power is to restrict them from documenting abuses of that power. States keep trying to pass laws that criminalize the filming or photographing of police. Indeed, whether you can record police or not is still an open question for the courts. A divided U.S. Court of Appeals for the Fifth Circuitrecently ruled on the case of a Texas activist who was filming police activity outside a police station. The court held that individuals have a First Amendment right to film the police within the states of the Fifth Circuit: Louisiana, Mississippi, and Texas. The Fifth Circuit also noted that every circuit court that has ruled on the issue has found that the First Amendment does actually protect the right of people to film police officers while those officers are performing their duties. However, several circuits havent ruled on the matter, or have stated that the right isnt clearly established. Regardless of court rulings, police continue to push back: Just in the last year, the ACLU has had to go to court in Louisiana, Massachusetts, and Pennsylvania to defend the right of individuals to record the police. Being able to record the police and share those recordings is, of course, a key component of journalism in the modern digital and visual era.
Clamping down on whistleblowers and leakers is another way to ensure that people dont speak out. If the price of speaking out is too high, people will stop. The Obama administration aggressively prosecuted leakers at a much higher rate than during the administrations of his predecessors, even going so far as to oppose allowing leakers to mount a defense based on the First Amendment. In other words, the prosecutors filed motions to prohibit defendants from saying that they were performing a public service by leaking to the press. However, the defense should be allowed because the public has a First Amendment interest in knowing about the workings of government, and government employees are in the best position to share that information.
The Trump administration looks to be equally aggressive, if not more so, having undertaken its first leak prosecution by going after Reality Winner, who allegedly leaked information about Russian interference in the 2016 election. To be sure, what Winner allegedly leaked is information that the public absolutely does need to know about: the depth and breadth and persistence of Russian attempts to hack the 2016 U.S. election. However, she now faces a fine of up to $250,000, a prison sentence of up to 10 years, or both.
Trump has stated hed consider jailing journalists over leaks, while people like former Speaker of the House Newt Gingrich (R), and others,have stated that federal employeeleakers who talk to the press are committing treason. They arent, of course. In the United States, treason generally refers to U.S. citizens who use force to align with enemies of the country. Attorney General Jeff Sessions, of course, wants to actively pursue and prosecute leakers rather than address his own peculiar failure to remember when he talks to Russians.
At the same time as the threat of leak prosecutions looms, congressional Republicans are looking to lock down press access to their members, in large part because they dont want to talk about the nightmare that is their health care bill. Journalists were told they couldnt film interviews with senators without getting permission from the (Republican-led) Senate Rules Committee. Tim Scott (R-SC) bizarrely claimed that if journalists could roam the halls and talk to senatorssomething they have always been able to dothe cameras might capture his ATM PIN and he needed to keep that private. This effort, mercifully, failed relatively quickly, but theres no reason to think that congressional Republicans who have been dodging things like town halls left and right wouldnt welcome greater press restrictions.
Criminalize protest, veil the work of police, prosecute those who share vital information with the American people, and limit availability and accountability of elected officials. These are pages from an authoritarian playbook, not a democratic one, but it is the world we live in now. We need to be vigilant against further depredations where the right to speech is concerned by supporting protesters and whistleblowers in any way we can.
More here:
The First Amendment Is in Increasing Danger Under a Trump Administration - Rewire
- The Alex Pretti shooting and the growing strain on the First Amendment - FIRE | Foundation for Individual Rights and Expression - January 26th, 2026 [January 26th, 2026]
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- Sarasota mayor accused of violating First Amendment by cutting off speakers - yoursun.com - January 20th, 2026 [January 20th, 2026]
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- Press Release: Murphy and Crow Introduce Bill to Safeguard First Amendment Rights and Combat Politically Motivated Harassment - Quiver Quantitative - January 16th, 2026 [January 16th, 2026]
- New Yorks Anti-SLAPP Act: An Unnecessary Chill on the First Amendment Right to Petition - Law.com - January 14th, 2026 [January 14th, 2026]
- Minnesota and the Twin Cities Sue the Federal Government To Stop the Immigration Crackdown - First Amendment Watch - January 14th, 2026 [January 14th, 2026]
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- 'At issue is the public right of access': First Amendment group savages Mar-a-Lago judge for 'incorrect' ruling over Jack Smith report, urges appeals... - January 11th, 2026 [January 11th, 2026]
- NYS AG: "Most extensive" First Amendment reforms ever approved in Saratoga Springs - WRGB - January 9th, 2026 [January 9th, 2026]
- Opinion | Jack Smith would have blown a hole in the First Amendment - The Washington Post - January 9th, 2026 [January 9th, 2026]
- Court rules University of Washington violated professors First Amendment rights - Campus Reform - January 9th, 2026 [January 9th, 2026]
- Law's Jonathan Entin and Eric Chaffee on first amendment rights and social media access for children - Case Western Reserve University - January 9th, 2026 [January 9th, 2026]
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- Filming ICE agents is a First Amendment right. So why might it land you in jail? - Straight Arrow News - December 31st, 2025 [December 31st, 2025]
- Liberties Year in Review: First Amendment victories - wng.org - December 31st, 2025 [December 31st, 2025]
- Trump Administration Will Appeal Judges Order Reversing Federal Funding Cuts at Harvard - First Amendment Watch - December 25th, 2025 [December 25th, 2025]
- Housing, tourism and the First Amendment: Nevada editors reflect on the news year that was 2025 - KNPR - December 25th, 2025 [December 25th, 2025]
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- Professor Sanctioned by University for a Satirical Land Acknowledgment Wins First Amendment Case on Appeal - The New York Sun - December 22nd, 2025 [December 22nd, 2025]
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- Madisons Lost First Amendment: The Mission Statement that Never Was - Jurist.org - December 22nd, 2025 [December 22nd, 2025]
- Let them sue: Iowa lawmakers scoffed at First Amendment in wake of Charlie Kirk shooting, records show - FIRE | Foundation for Individual Rights and... - December 22nd, 2025 [December 22nd, 2025]
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- [VIDEO] Jane Fonda Revives the Committee for the First Amendment - ACLU of Southern California - December 16th, 2025 [December 16th, 2025]
- Does The First Amendment Protect Supposedly Addictive Algorithms? - Hoover Institution - December 16th, 2025 [December 16th, 2025]
- Stop the gatekeeping. The First Amendment is for all of us - Freedom of the Press Foundation - December 16th, 2025 [December 16th, 2025]
- Why 'online speech is messy' when it comes to the First Amendment - WUSF - December 16th, 2025 [December 16th, 2025]
- Puerto Rico Governor Signs Bill That Critics Say Will Restrict Access to Public Information - First Amendment Watch - December 16th, 2025 [December 16th, 2025]
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- Texas runs afoul of the First Amendment with new limits on faculty course materials - FIRE | Foundation for Individual Rights and Expression - December 12th, 2025 [December 12th, 2025]
- First Amendment expert weighs in on new University of Florida neutrality policy - WCJB - December 12th, 2025 [December 12th, 2025]
- Public libraries in TX, LA, and MS are no longer protected by the First Amendment. - Literary Hub - December 12th, 2025 [December 12th, 2025]
- Congressman Murphy introduces bills to fortify First Amendment rights on college campuses - WCTI - December 12th, 2025 [December 12th, 2025]
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- The Pentagon and the FBI are investigating 6 legislators for exercising their First Amendment rights - Reason Magazine - November 30th, 2025 [November 30th, 2025]
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- Campus Crackdown on the First Amendment - Folio Weekly - November 30th, 2025 [November 30th, 2025]