Donald Trump's re-election is a dire threat to free speech.

Donald Trump's re-election is a dire threat to free speech.

It's much worse than petty library bullying.

Matthew Yglesias — Read time: 11 minutes.

April 26, 2022.

A friend recently told me that he thinks the concept of “free speech” has become coded as right-wing over the past few years thanks to debates about content moderation on social media platforms.

I don’t know how true this is, but the specific instance of Elon Musk suggesting that under his hypothetical ownership Twitter would have less aggressive content moderation produced some fairly unhinged reactions. Mehdi Hasan called it “problematic,” the Washington Post published a piece about experts clapping back at Musk’s vision, and he was criticized in The Verge and by Kara Swisher in the Times. What’s weird about this hostile reaction is that Musk has not conveyed any information about his desire to change Twitter content policies other than to say he wants to be more supportive of “free speech.” The phrase itself seems to have triggered people, not because of its vagueness or indeterminacy, but because of the notion that anyone who says they are for free speech must be a bad person.

Which is nutty to me. Personally, I think free speech is good.

I also don’t think it’s obvious what the right kind of distribution and moderation model for Twitter is. I think my preference would be to return to the old-fashioned model where users see all and only the tweets of people they follow. And I think there should be very little moderation. I don’t like to see algorithmic amplification of misinformation, but I also don’t trust Twitter to decide which information is misinformation. Suppose they’d cracked down aggressively on pro-mask speech back in March 2020 when the experts were trying to discourage mask usage? Some folks are too hung up on a constitutional law point — the first amendment right to free speech does not apply to Twitter — and insufficiently attentive to the basic Millian point about the benefits of an open exchange of ideas.

But beyond Twitter moderation policies, it’s crazy to cede the terrain of free speech to the right when there is an extremely clear and present danger to free speech from the Republican Party. And I think many of the liberals who make that point tend to lean on the wrong examples to illustrate it. Having petty bullies running a school system is not great, but it’s also not going to be the end of the republic.

What really might be, though, is Trump’s clearly articulated and semi-implemented plan to use his control over the regulatory state to dominate the commanding heights of American media.

The thing I don’t worry about as much

Out-parties always exhibit a surge in grassroots activism, and with Joe Biden in the White House, a lot of conservative activism is aimed at orchestrating library purges.

Walton County Public Schools in Florida has ordered nearly 60 books removed from school libraries, including two famous works by Toni Morrison, “The Kite Runner,” Jonathan Safran Foer’s “Extremely Loud and Incredibly Close,” “Normal People,” “The God of Small Things,” and a book I’ve never heard of called “The Purim Superhero.”

This stuff is bad.

You can see in progressives’ response to these purges that we all do, in fact, acknowledge that there is value to free speech and intellectual inquiry separate from constitutional issues. Nobody has a first amendment right to have their book stocked in a school library (my books aren’t in Walton County Public Schools libraries, as far as I know), and people will inevitably disagree about which books are the books worth stocking. And while I have no problem with a school library stocking Charlaine Harris’ “Dead Until Dark,” I’m also not going to go to the mattresses for it as a classic of world literature. But “The Bluest Eye” is a staple of high school curricula for a reason, and if you’re purging it from your library, something is wrong with you.

But while I would urge you to vote against local officials who act this way, I do not think that small-town politicians being close-minded and prudish is a super-alarming social trend. This is the way of the world. The reason many of us have a harsher reaction to the faculty, staff, and students of elite universities adopting wildly overblown ideas about “harm” and “safety” with regard to the speech of others is that we’re concerned these institutions have real social and cultural cachet in a way that the Walton County School Board does not. So I think a different kind of focus on elite institutions and top-tier left-wing intellectuals is warranted.

In terms of who is coded how, it is important to remember that the scolding, book-banning rightwingers that some of us remember from the 1980s and 1990s haven’t vanished just to be replaced by a new set that loves free inquiry. They’re somewhat diminished in number and clout, but very much still trying to rid their little worlds of any hint of “harmful” content.

But the big, truly scary right-wing threat to free speech is coming from a completely different direction.

Trump conducted big-time regulatory abuses

Back in the fall of 2017, AT&T bid to take over Time Warner, the company that owns, among other things, CNN.

As I said at the time, this was a dumb blunder by AT&T. Many times over the course of business history, the executives of a profitable-but-boring company have decided that it would be fun to buy a movie studio. If you own AT&T, your meetings are about spectrum auctions and permitting for cell phone towers. But if you own Time Warner, you get to go to the Oscars, hang out with movie stars, and be in meetings where people talk about Batman. People like to buy movie studios. There was no business advantage to this merger, but also no harm to consumers.

There are also a lot of people running around who want to change antitrust doctrine and move away from the past 40 years of antitrust analysis, and they were eager to object to this proposed merger as part of an effort to revive old-fashioned legal skepticism of vertical integration.

And they got what they wanted from the Trump Justice Department, which sued to block the merger. When the suit came down, there were basically two interpretations. One was that the Trump administration had decided that progressive antitrust reformers were correct and the government should adopt a whole new antitrust doctrine that would be much harsher on mergers. The other was that Trump was just mad at CNN and trying to abuse his power to stop them. The courts ended up ruling against the government, and outside of the business press, the case was never a huge story. But several years later, Jane Mayer reported that Trump did in fact call John Kelly and Gary Cohn and demand that they come up with a pretext for blocking the merger.

More tellingly, I think, the Trump administration waved through the merger of Sprint and T-Mobile and also Disney’s acquisition of 20th Century Fox. These were both much more straightforward cases from the standpoint of traditional merger analysis. It’s not totally shocking that a pro-business Republican administration would approve them, but a Democratic administration might not have (especially the Sprint/T-Mobile one), and certainly a GOP administration that wanted to break with conventional conservative politics and pursue aggressive antitrust litigation would have challenged them. This is just to say that Trump didn’t try to block the AT&T/Time Warner merger because he believed in a new and more expansive antitrust doctrine. He had his administration pick that idea up arbitrarily in an effort to punish Time Warner for daring to run journalism he disliked.

Return of the JEDI

What makes this especially scary is that even though Trump failed, he didn’t abandon his effort to misuse federal power for the purposes of censorship.

The Pentagon, looking to get into the cloud computing game, put a tender out for something called the Joint Enterprise Defense Infrastructure (JEDI) Cloud, an enormous $10 billion contract. Everyone thought that Amazon was the leading candidate to win the contract, but there were rumors that Trump wanted the Defense Department to give it to someone else because he doesn’t like Jeff Bezos’s ownership of the Washington Post. And in 2019, the Pentagon awarded the contract to Microsoft instead. Amazon sued and won in court with the argument that the contracting decision reflected the improper influence of the White House. But an April 2020 DOD Inspector General report said there was no clear evidence of misconduct, though it also said the White House didn’t really cooperate with the investigation and the IG couldn’t fully complete its work.

It should also be said that in the spring of 2020, Trump fired five cabinet agencies’ inspectors general, so I do not have high confidence in the integrity of the Trump-era IG process.

But beyond that, the idea that the president thought it would be a good idea to punish Amazon for the Washington Post’s reporting isn’t really a “secret” that we need an inspector general to suss out. I knew that’s what Trump wanted to do because he said so publicly. Time and again the secret to Trump’s scandalous behavior was doing the misconduct out in the open. There’s no need to write a secret memo saying “abuse regulatory authority to punish independent media companies” when you can just tweet it.

The risk is huge

Trump was ultimately not very successful in his effort to use the power of the state to crush journalism. He was in general a low-efficacy president who struggled to fully fill the thousands of political appointee jobs with true Trump loyalists. And of course the political appointees themselves can be stymied by the bureaucrats and the permanent state. The other thing about Trump is that he was pretty unpopular his whole time in office, and I think most observers judged that the odds of him losing in 2020 were fairly high. So under the circumstances, Bezos stood tall, CNN continued to pursue ratings, and overall press coverage of Trump was very critical.

And the judicial system continued to uphold the rule of law not least because most Republican Party judges — including Trump’s appointees — were basically pre-Trump figures who are ideologically committed to free markets.

But the risks of a second Trump term are larger. Most notably, there is now a broader cohort of Republican Party politicians in state government in places like Georgia and Florida who’ve grown comfortable with the idea of using policy to punish corporations for disagreeing with them. So the circle of Republicans who’d be inclined to sincerely agree on the merits that taking action against Amazon to punish the Washington Post is a good idea has expanded. Second, over time Trump has been able to somewhat expand his circle of loyalists and get better at identifying his true friends. Third, while during his first term I think a lot of people expected Trumpism to pass, it’s now clear that the future of the GOP is largely on this ideological trajectory and also that in the medium term we should expect Republicans to maintain an iron grip on the Senate.

I think progressives have been a little disinclined to fully go to bat for CNN and Jeff Bezos because to the left, these giant corporations are not sympathetic in the way that small-town librarians are. But exactly because we are talking about huge anonymous corporations, we should not expect them to behave heroically in the future. If Comcast decides that it will get better regulatory treatment if it finds some pretext to lay off Chris Hayes and Rachel Maddow, they will. If securing the future of Blue Origin requires Bezos to shut down the Washington Post, he will. Mark Zuckerberg is not going to sacrifice his vision of dominating virtual reality for the sake of a sentimental attachment to freedom of the press. We know major American companies routinely accede to Chinese censorship requests in exchange for favorable regulatory treatment there, and they will do the same here if they feel they have to.

A warning, not a prediction

I’m trying to be more measured in my commentary about the future, so let me be clear: I’m not saying “Trump wins the election and then uses his control over the regulatory state to crush press freedom” is a super likely scenario.

But there’s a chance, because — among other things — Peter Thiel (who doesn’t believe in democracy) is recruiting a new crop of authoritarian candidates, some of whom are going to be in Congress next year. Here is J.D. Vance openly telling journalists that his hope for a second Trump term is to trash the rule of law entirely:

“I think Trump is going to run again in 2024,” he said. “I think that what Trump should do, if I was giving him one piece of advice: Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people.”

“And when the courts stop you,” he went on, “stand before the country, and say—” he quoted Andrew Jackson, giving a challenge to the entire constitutional order—“the chief justice has made his ruling. Now let him enforce it.”

Would Trump actually do this? Probably not. But what are the chances? Ten percent? Twenty percent? That seems plausible to me. After all, without blowing the 1/6 putsch into more than it really was, it was still pretty insane. And though it briefly looked like other GOP leaders were mad enough about it to freeze him out, he ultimately slinked away with no punishment. He’s faced no punishment for his corrupt hotel operation, his kids have faced no accountability for their corrupt dealings with the Saudis, and the GOP structure is, if anything, more onboard for lawless attacks on political enemies than they were before.

And worst of all, I think in a crisis a lot of progressives won’t really be willing to stand up for the rule of law and free speech because they’ll thrill to the idea of attacking billionaires. But Trump won’t go after the economic elite by taxing them; he’ll punish rich people who own independent media outlets or support causes he disagrees with by coddling regime allies. It’s a very serious threat to freedom of speech and deserves to be recognized as such. Much more so than clashes about libraries or public schools, the question of who owns the means of media production and distribution and whether they are able to operate independently from the White House is a critical question about free inquiry and free speech. Yet it is rarely discussed outside of tedious business stories.