So to Speak Transcript: Free speech in Trump 2.0

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Clark Neily: So, the point I was going to make is that one of the things that's, I think, extremely sinister about what we've been seeing over the past months is that there are these kind of interstitial spaces where it's not clear that the First Amendment or some other constitutional provision applies. You would think that it would. It's not clear that it does. And this administration, I think, has been extraordinarily effective at exploiting these kinds of constitutional interstices where you can exert pressure, gain compliance without exposing yourself to sort of clear, doctrinal, constitutional transgression where a court's going to step in and say, “Okay, you can't do that.”

[Podcast Introduction Plays]

MLK Jr.: Somewhere I read of the freedom of speech.

Male Speaker: You're listening to So to Speak: The Free Speech Podcast brought to you by FIRE, the Foundation for Individual Rights and Expression.

[Podcast Introduction Ends]

Nico Perrino: All right. Welcome back to So to Speak: The Free Speech Podcast, where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I am, as always, your host, Nico Perrino. Right now, we are just wrapping up year one of Trump 2.0. So, we figured this was as good a time as any to do a recap of how that year has gone. Trump had pledged to bring free speech back to America. How's he doing? Joining me to answer that question to my right is Clark Neily, the senior vice president for legal studies at the Cato Institute. Welcome to the show for the first time, Clark.

Clark Neily: Thanks a lot. Great to be here.

Nico Perrino: And to his right, we have Timothy Zick, a professor of government and citizenship at William & Mary Law School and the author of the new book, Trump 2.0: Executive Power and the First Amendment. I should say this is the inspiration for this podcast. So, Timothy, welcome onto the show.

Timothy Zick: Thank you. Great to be here.

Nico Perrino: And recurring guest to my left here, Conor Fitzpatrick, a supervising senior attorney here at FIRE.

Conor Fitzpatrick: Good to see you, Nico.

Nico Perrino: All right. Let's jump right in. We could cover a lot over the past year, and we could spend a whole podcast talking about just that, the stuff that has happened over the last two weeks. So, let's back into it; maybe talk about the stuff at the top that's happened over the last two weeks, the stuff that's most timely, and then we can look at the stuff that happened in the first couple of months of his administration. As all of our listeners are probably well familiar with at this point, on January 24th, Alex Pretti, a 37-year-old intensive care nurse, was shot and killed by ICE agents in Minneapolis.

And that was less than three weeks after the killing of Renée Good, who was the woman who was driving that car. We learned today that the DOJ opened a civil rights investigation into Pretti's death. I don't know how familiar you guys are with that. But I want to zoom out and ask broader questions, because Alex Pretti was filming ICE officers when he was shot. He had tried to step between a DHS ICE agent who had pushed some civilians. There was some pepper spray involved. But prior to all that, I mean, what he was doing there was filming ICE. What are your First Amendment rights to film law enforcement? And maybe I'll start with you, Professor Zick.

Timothy Zick: Sure. Yeah. You have a right to record what's going on in public, including how law enforcement is doing its job. I think almost every, if not every, court of appeals, federal court of appeals to address this issue has said so. Routing that in the First Amendment, information gathering and publishing aspect of the First Amendment. So, there's no question you have that right. You don't have a right to interfere. So, you can be constrained from getting too close so that you're interfering with an arrest or some other activity of law enforcement. But as long as you maintain a distance and allow them to do their job, you have every right to sort of point your phone or your camera at them and make a record, as people have done.

Nico Perrino: But they would argue that they are interfering with arrests, right? Like, how close is too close? That seems somewhat subjective in this context.

Timothy Zick: Yeah. It's not interfering if you're, you know, standing at a distance, as I've seen most of the videos depict. People are at a distance sort of with their camera, maybe on the sidewalk, and something's going on in the street. So, most of what I've seen is safely within sort of the non-interference zone. When I say interference, I mean you're close enough to obstruct the law enforcement officer or whoever it is from getting to the person they're trying to reach, or that you become part of the melee, right? If there is one. Now you're beyond just recording what's going on. You're actively participating in it.

Nico Perrino: I think I read, maybe it was a year or two ago, that Arizona was trying to pass a law, or maybe they did, that would delineate exactly how far you needed to be away from the police. Would that be constitutional, or is it always just kind of need to be subjective to the situation at hand?

Timothy Zick: I mean, it'd be akin to a time, place, and manner regulation. So, there are lots of sort of zoning regulations. You can't get this close to a healthcare facility or a hospital or something like that. So, it'd be akin to something like that. If it's content neutral, it doesn't aim at any particular idea or function or activity. It will depend, of course, on what that zone looks like, right? If you're saying within 200 feet, it's too broad, right? So, you have to calibrate it, but it could be constitutional.

Nico Perrino: So, the agents were trying to make an arrest or apprehend someone. And my recollection of the footage is Alex Pretti then kind of inserts himself between the agent and this one woman who had fallen down. At that point, is he engaged in constitutionally protected activity, Conor? How do you think about it?

Conor Fitzpatrick: Well, at the point that he starts actively being an encumbrance to law enforcement, being able to do what they need to do, that's usually where the line is drawn. So, I'll give you an example. Suppose a cop is chasing down a bad guy, right? If a person gets in between the cop and the bad guy, it doesn't matter if they're holding a camera or a piece of beef jerky. They're still interfering with law enforcement's ability to do their job.

But what the problem here has been is that you have people sort of filming out of the way, and sometimes the police are going out of their way to sort of cause a problem, to initiate their own confrontation with the people who are filming, telling them, "You're not allowed to film," or they're sort of starting the problem of their own accord. So, these things can get a little bit factually messy, which is why the law allows, sort of, a reasonable person's perspective to come in for restrictions like this.

Nico Perrino: Clark, there's been a lot of discussion about the right to carry a weapon, as Alex Pretti was doing. I mean, that was alleged to be the kind of precipitating cause for him getting shot, at least based on the footage that I've seen. He was carrying the weapon, and then one of the agents had taken the weapon off of him and started walking away with it. And the understanding is that it might have fired, not intentionally, but it fired, and that maybe triggered these other agents to shoot Alex Pretti. Before we talk about the specifics of that, what right do you have to carry a weapon at a protest, Clark?

Clark Neily: Well, this is something that hasn't really been litigated in great detail. The Supreme Court has not weighed in. But the way to look at it, I think, is this. First question is, is there any restriction, any statutory restriction, on your ability to carry a lawfully possessed firearm to a protest or other public gathering? There are only a small handful of jurisdictions that actually have laws on this. Washington, D.C.

Nico Perrino: Oh, it’s that –

Clark Neily: Is one of them. New York, California. But they tend to have significant procedural restraints, such as the event has to be posted – that you're not supposed to have a weapon there. Even then, I'm far from sure that those are going to survive constitutional challenge. We can put a pin in that for a minute. The most important point is that Minnesota has no such law, and there's no federal law. So, when FBI Director Kash Patel took to the airwaves, I think, within hours of this tragedy and said, "You can't just bring a handgun and extra magazines to any protest you want.”

Well, actually, yes, you can, certainly in Minnesota, at least. And looking beyond the question of whether there are statutory restrictions that purport to prevent people from carrying otherwise lawfully owned firearms to a public gathering or protest, there's the question of whether the Second Amendment protects that right. And I think the answer is almost certainly yes, based on the existing framework that the Supreme Court applies to Second Amendment challenges.

So, I think if one of these laws that purports to restrict people's ability to bring a lawfully owned firearm to a protest or other public gathering reaches the Supreme Court, it's extremely likely that it will be struck down. But again, the most important point here is that there's no such law in the books in Minnesota. And as best we can tell, Alex Pretti was completely within his rights as a permit holder under Minnesota law to have that handgun with him. And we've all seen the videos. He never even reached for it. He certainly didn't brandish it, as a number of federal officials misrepresented.

And it seems to have been a combination of aggression and incompetence on the part of the federal agents who took him to the ground. And we don't know, still, whether there was an unintentional discharge or what it was that caused the first shots. But what I think is entirely clear is that this incident was grossly mishandled and resulted in the death of somebody who was in a place where he had a constitutional right to be engaged in constitutionally protected activity, perhaps with the exception of interposing himself between the federal agent who was pushing the woman.

I mean, he was pushing her over a curb, by the way, onto an icy sidewalk. I'm not sure that was – we don't know exactly why he was doing that. But that looked pretty gratuitous to me. That actually might have been a criminal act on the part of that particular individual. And that further complicates the question of whether Alex Pretti was even interfering with any legitimate law enforcement operation. I think that's a very close call based on the video we've seen.

Nico Perrino: The use of force in this way, actually shooting Alex Pretti – how would a court assess this?

Clark Neily: Well, it's a somewhat complicated test, but basically it boils down to whether the officer or agent reasonably perceived that there was a danger either to themselves, to other law enforcement on the scene, or to citizens from the person that they were shooting.

Nico Perrino: But what if the danger is created by an unintentional fire by another officer who took his weapon away?

Clark Neily: Yeah, exactly. And that actually was a subject of a recent Supreme Court decision where the question was, do we look at the scene at the exact moment when the government official pulls the trigger? Or do we look at the totality of circumstances? And the Supreme Court made clear that it's the latter. You look at the totality of circumstances. And in this case, it is a mess because, first of all, we've got six or eight law enforcement personnel pushing him to the ground, trying to restrain him.

One of them sees the handgun, pulls it out while apparently yelling he's got a gun. And you can see in one video that the person – the agent who pulls the gun away from Pretti – then tries to sort of run away from the scrum. There's a lot of debate about whether the gun then unintentionally discharges.

When I listen to the sequence of shots, that's what it sounds like to me. There is one shot that stands out first, and then there's a kind of pause, and then there's this kind of fusillade. So to me, from what I'm hearing and what I'm seeing, that strikes me as the most plausible sort of factual explanation of what happened. But we really don't know. I want to go back to the point that I think appropriately trained and professional law enforcement should have no difficulty in restraining. He doesn't even look to me like he's resisting.

He looks to me like he's just trying to protect himself as they take him to the ground. But whether he was resisting or not, this is something that police do every day. And ordinary police officers are able to restrain, whether someone is resisting or not, able to restrain them to disarm them and take them into custody without killing them. And I think when I see these videos, I see a combination of aggression, unprofessionalism, and incompetence that I think is deeply concerning.

Nico Perrino: And would the training factor into the totality of circumstances that a court might look at here?

Clark Neily: I mean, it could. It depends whether you can make a connection that there was some failure of training that led to the outcome. I'm not...

Nico Perrino: Well, in the Renée Good case, right, you're not supposed to walk in front of a vehicle. And that officer who ended up shooting her was.

Clark Neily: Yeah. I mean, that was just a smorgasbord of unprofessional law enforcement. First of all, one of the agents is running at the car, shouting profanities, telling her to get out. He's trying to open the door of the vehicle even while it's in motion. They're trained not to do that. It's a stupid thing to do. As you noted, there's the other agent who walks in front of a car that is in – if not in gear, then at least the engine is running. Does that twice. You're not supposed to do that either.

And even just taking the shots, police are trained that even if someone is kind of coming at you with a vehicle, which I don't see in that video, shooting the driver isn't going to solve that problem because the car is already in motion. And all you're really going to do if you manage to hit the driver and incapacitate them You've just turned that vehicle into effectively an unguided missile that's going to go and hit another vehicle or even another person. So, again, I think the theme here is just this incredible lack of professionalism, this unnecessary aggression, and the escalation of violence when it should be going in the other direction.

And to me, when I see video after video of these DHS agents doing their work on the ground, I see a poorly trained, poorly led, unprofessional organization that I certainly wouldn't want to see in my neighborhood or anywhere near my kids just from a pure safety standpoint.

Nico Perrino: Yeah. Conor, what can be done, if anything, to hold federal law enforcement accountable for violation of rights, assuming that's what happened here or in any of these cases?

Conor Fitzpatrick: Right now, very, very little. If this were a state police officer, you would be able to file a lawsuit under Section 1983. Unfortunately, there is not a federal equivalent. Hopefully, there will be someday. Hopefully, someday there will be a statutory cause of action against someone acting under color of federal law who deprives you of constitutional rights. But right now, the only thing that's left is some wisp of what's called a Bivens action.

And the running joke right now is that unless your name is Bivens, you don't have a Bivens action. So, realistically, right now, if people want to know what they can do to hold this officer accountable, it's 1.) Hope that the Department of Justice brings charges if charges are appropriate. And 2.) As hokey as it sounds, vote.

Nico Perrino: So, let me kind of go to an extreme here, Professor Zick. Let's say I am protesting in the streets very clearly within my constitutional rights. I'm in the town square. I'm not interfering with any law enforcement. But a law enforcement is just mad that I'm protesting and decides to shoot me. If the DOJ decides not to investigate or punish this federal law enforcement officer, there's nothing I can do?

Timothy Zick: Well, as you said, there's no civil damages remedy at the federal level. It's unlikely, you know, or at least I wouldn't be confident that you'd get an investigation and prosecution at the federal level. You could have a state-level criminal prosecution, right? They may be complicated by the fact that it's a federal officer. You may quickly see it in federal court. You'd see immunities being asserted on behalf of the agent.

Nico Perrino: You could see the federal law enforcement cordon off the scene and not let any state law enforcement.

Timothy Zick: Well, how do you investigate a crime when the crime scene is already abandoned and/or you've taken all the evidence away and now you won't share it with the people you want to prosecute?

Nico Perrino: And that was the allegation in the Alex Pretti and the Renée Good shootings.

Timothy Zick: Yeah. And I have to say, we keep referring to these folks as law enforcement. And I suppose they are technically. They're enforcing immigration law, but they're not police, right? They're not as bad as police training is in the context of protesting. And it's very bad, right? So, there's a lot of aggression and misconduct by officers who are supposed to be trained in, sort of, crowd control. I don't think these officers are trained in that at all. As far as I can tell, they have no training with respect to how to de-escalate anything or to deal with a crowd of protesters, some of whom may be breaking the law, but others who may be within their rights.

They seem uninterested, disinterested in protecting anyone's First Amendment rights, which is what law enforcement should in part be doing. So, I'm deeply concerned about, as you say, their training. I don't think we know much at all. They've been recruited very quickly through methods that sort of pitch the message to a certain kind of person who might want to really get in the game here and kid up and go out into the streets and menace and be intimidating. All of which leads to, in my mind, pretty predictable results. I'm not surprised that more than one person has been shot dead in this context.

Nico Perrino: Clark, I want to get your perspective on this, but I also wanna ask if the fact that there's now footage of Alex Pretti kicking out a taillight of a federal immigration agent's car, maybe a couple of weeks before he was shot, factors into this at all. Does that justify the shooting in any way? I believe he was also tackled to the ground but managed to get away. But if he did something bad in the past, does that justify what happened to him on the day that he was shot?

Clark Neily: No, it's totally irrelevant. And one of the ways you know that is if the shoe was on the other foot and this were a prosecution, and in fact, we actually saw this in the chokehold case in the New York subway. It was like Daniel Penny, I think was the guy's name. And it turns out that the individual who was choked to death actually had a very significant criminal record and engaged in some extremely violent behavior. But the law in New York, as in other jurisdictions, is that unless the defendant who applied the chokehold knew about that had reason to know that he had acted violently in the past.

It's irrelevant. And here, of course, there's nothing like that. What we see in the video, the earlier video of Alex Pretti, is not violent action. It's frustration. What I saw was him sort of, you know, kicking the taillight of a vehicle as it's departing a scene. That's not violence.

Nico Perrino: Well, it's destruction of property.

Clark Neily: Yeah, but the idea that that would somehow lend weight to a federal agent's concern about their own personal safety, because that's what it boils down to, right? Is that when we're evaluating a use of lethal force, the question is really, was that person who was shot a present threat to the safety of the officers on the scene or to others nearby? And somebody who's kicked the taillight out of a car a week ago – that even if they knew it, which there's no evidence that they did, it would be totally irrelevant.

Timothy Zick: I wondered if there was a pre-existing relationship here. I mean, the agents were all masked, so you don't know. Was it the same agents who encountered him before? Did they know who he was? Did they find him a nuisance? Did they take retribution against him? This isn't maybe the first time they've seen him.

Clark Neily: This didn't look special to me. The way they treated him, the way they pushed some woman off a curb onto an icy sidewalk. I looked at that and said, “Oh, that's a day in the life of the DHS.”

Nico Perrino: Speaking of filming, as we were coming into the studio here, we're getting word that the journalist Don Lemon was indicted. Now, we don't have the indictment; it's still sealed, but we're aware of, generally, the circumstances that led to this indictment. Don Lemon was filming a protest that went into a house of worship, disrupted that house of worship and the service that was ongoing. Don Lemon is interviewing some of the parishioners, the pastor as well. He's asked to leave, he doesn't leave, and we might think this would be trespassing, right, but that would be a state charge. So, here you have a federal government that really wants to figure out a way to get Don Lemon.

We don't, again, know what the indictment is based upon, but we've heard in some of the reporting that it might be a conspiracy to deny rights sort of deal. I don't want to get too into the weeds of the specifics necessarily, but just as a general matter, what are Don Lemon's rights as a journalist to follow this protest into a house of worship, to interview parishioners and the pastor, and to stay as the protest is still ongoing despite the fact that he's asked to leave? Professor Zick?

Timothy Zick: Yeah. I mean, if he was aligned with the protesters and part of the protest, you don't have a First Amendment right to sort of barge into a church and communicate your message, right? That much is clear. What does the fact that he's a journalist bring to the table? I don't think that's clear either because there's no sort of freestanding, free press guarantee that applies to the institutional press or reporters. He has the right we all have to access spaces and gather information, and so none of us, I think, would have the right to sort of enter a place where we're not wanted or welcome.

He's, of course, going to assert, and his lawyers are going to assert, that the press clause does matter, that he is a reporter, and he was gathering information and not part of the protest and therefore protected by the First Amendment. I don't know how that would resolve. I'm not aware of any similar set of facts.

Nico Perrino: So, just so we're clear, you're talking about the press clause of the First Amendment doesn't give journalists as a profession any greater rights than we might have as citizens who just go out and report on things that are happening in our community, for example, right? Conor, do I have that right?

Conor Fitzpatrick: Yes, that's largely right. Now, I think two things can be true here. One, it is likely true that the First Amendment does not provide any unique privileges to journalists, but I think it's also important to recognize here that this has been a very abnormal pursuit of Don Lemon by the Justice Department.

Nico Perrino: Yeah, let me hold up the tweet from the White House today. It says, “When life gives you lemons…” And then they have a chain emoji, and then it says, Don Lemon arrested for involvement in the St. Paul church riots. It's kind of interesting the way they're touting some of the arrests. They're showing mug shots. That's against DOJ protocol, isn't it, Clark?

Clark Neily: Well, that's if you take DOJ's word for what DOJ protocol is, I think.

Nico Perrino: And we'll get back to you here in a counter second.

Clark Neily: It's also against DOJ protocol to do so-called perp walks, right, where they make sure the media knows that you're being arrested, taken out of your house, for example, in the middle of the night, but they do it plenty.

Nico Perrino: Okay. Sorry, Conor, I cut you off.

Conor Fitzpatrick: So, getting back to the idea that the pursuit of Don Lemon over the last week or so has been very, very peculiar in terms of what we've seen from the Department of Justice. We know that they originally sought an arrest warrant for him from a magistrate judge in the District of Minnesota. That was turned down. They then tried to appeal that up to the chief judge of the District of Minnesota, who turned that down.

They then, apparently without telling the chief judge of the District of Minnesota, went to the Eighth Circuit trying to seek mandamus, prompting the chief judge of the District of Minnesota to write a letter to the Eighth Circuit saying, “I've never done this before, but I'm not sure how to make my views known without writing you a physical letter.” And the Eighth Circuit eventually denied mandamus relief. The DOJ was trying to get a court order ordering the magistrate to issue these arrest warrants. So, regardless of how this ends up holding up, this has been a very peculiar pursuit of Don Lemon, to the point that the chief judge said that he'd never seen anything like this in his long amount of time on the bat.

Nico Perrino: Is it peculiar for this administration, though, if we're looking at Trump 2.0 in the first years of that administration? Because you have Letitia James. You have Cook, the Fed.

Timothy Zick: Comey.

Nico Perrino: Yeah, Comey. You have James Comey, John Bolton to a certain extent. It seems like there are these opponents of the president that they're looking through all the different laws that they have available to them to try and figure out how to prosecute. And even if they don't feel like they have an open and shut case, it seems like, just based on the social media fodder that I'm seeing, just bringing the prosecution is enough. They want people to know that they're willing to go after them and bring them and put them through the process, the process being the punishment, even if they can't secure a conviction.

Timothy Zick: I think that's right. And Trump has said that, right? It's not like they're hiding the ball here. He's like, “I'm happy when my political opponents have to spend money and expend resources defending against charges, whether they're civil suits or criminal actions.” Turnabout is fair play. Retribution is the name of the game. And they're their own worst enemy if the point is actually to prosecute people who have committed crimes. And I don't think that's the point at all. The point is to exact retribution and retaliate against people who said things you didn't think were nice or that you disfavor.

And in Comey's case, for example, he filed a vindictive prosecution motion. The court didn't get to that because it threw the case out on other grounds. But you can see this in a lot of Trump cases, not just these criminal actions, but civil actions. And I'm sure we'll talk about some of these. But retaliation has been a major claim in a lot of cases. And ordinarily, that's hard to prove.

Nico Perrino: I was gonna ask about that.

Timothy Zick: But if you're tweeting it out or truthing it out, there's the proof. Assuming you take the president's communications into evidence, even if you don't, there are plenty of lower-level officials. It's gotten in the way of defenses in civil cases and in these criminal cases, too, for sure.

Nico Perrino: Well, Clark, I'm not a litigator here, but I've heard some discussions in the press about how, within the courts, there's this kind of presumption of normalcy with the Department of Justice that courts have. They don't presume that the department is bringing prosecutions for nefarious reasons. How much does that still exist among judges?

Clark Neily: Yeah. So, this is an actual principle. I'm not sure I'd call it a doctrine exactly, but it's a principle called the presumption of regularity.

Nico Perrino: That's it.

Clark Neily: And the idea is not simply that you don't presume a nefarious purpose. You actually give the government more credit than an ordinary litigant would. So, if the government makes a representation, for example, for which it doesn't have any evidence, or it offers an assurance that it's going to do or forbear from doing something in the future without actually legally committing itself.

The presumption of regularity operates in such a way that judges are supposed to say, “Okay, I'm going to credit that.” I might not credit it if this was some big corporation or an individual, but I'll credit it because it's the United States government. And I would say that the presumption of regularity has been soaked in gasoline and set on fire by the Trump DOJ over the past year. And –

Nico Perrino: Has that filtered into the courts? Sorry. Are judges starting to say, “We just don't believe you anymore?”

Clark Neily: Occasionally, but judges don't have to say it out loud in order to think it. And you can read between the lines sometimes and see the absence of the presumption of regularity, even when it's not specifically mentioned. And I think we're seeing that in litigation now that DOJ lawyers, when they go into court, are not afforded the kind of credence and confidence that they would have been and were routinely in prior administrations.

There was this extraordinary document that was an appendix to a recent court order in Minnesota in which one of the judges documented the dozens and dozens of times that the administration had either failed to comply with court orders in immigration proceedings, made misrepresentations in court, et cetera.

It's an extraordinary, I think, and indeed, potentially historical document because, I mean, look, as a libertarian who's been very critical – both – of the Department of Justice and the federal judiciary's indulgence, I would say, of government lawyers, which would include, in my view, the totally baseless presumption of regularity, we're seeing something, I think, genuinely new now in the way that administration lawyers exhibit bad faith. There is deception beyond what I've seen. I've seen government lawyers be deceptive in court, but not at this scale and with this kind of lack of...

They're unapologetic about it. I think they're playing with fire, to be honest. I mean, I think that judges are very sensitive to any kind of gamesmanship or conduct on the part of lawyers, any lawyers, but especially government lawyers in whom they repose this kind of confidence. They expect candor, and they expect not to be walked into bad rulings because they took something at face value that later turned out to be untrue. I've never seen an administration that was more willing to make misrepresentations in court than this one.

Nico Perrino: Well, I think one of the reasons that the Alex Pretti situation blew back on the administration, and now we're having a big discussion over DHS funding, is the fact that you had all this video of what happened and how it didn't really align with what the administration was saying happened. So, just today, President Trump called Alex Pretti an agitator and possibly an insurrectionist. You had officials like Scott Bessent and Kash Patel said the fact that he was armed indicates he did not intend to remain peaceful.

You had Kristi Noem after the killing say that he arrived at the scene to inflict maximum damage on individuals and to kill law enforcement. You had Greg Bovino, who was the former border patrol commander at large before the situation got him demoted, who alleged that Pretti wanted to massacre law enforcement. And then you had Stephen Miller, who's a homeland security advisor, call Pretti a domestic terrorist and an assassin.

And I think that just didn't comport with what people were seeing on film, but it's also a way to transition into this broader narrative that the administration has tried to put forth that if you're protesting the administration, you're a domestic terrorist. President Trump, back in September, issued his National Security Presidential Memorandum 7, called Countering Domestic Terrorism and Organized Political Violence. I believe even Stephen Miller has gone out there and said something to the effect of the Democratic Party is a domestic, radical terrorist organization.

Are there First Amendment limits on the government's ability to categorize protest movements as security threats without infringing protected speech? Because you might say if the government's saying these things about people, it gives law enforcement more of an opening to target, to prosecute, to arrest folks. Tim, how do you look at it?

Timothy Zick: You can say that, but when you operationalize it, when you start to investigate, arrest, bring cases against, then the First Amendment is going to be invoked, and rightly so, to say you can't target people because of their left-wing ideology. And if you read the president's document, the one that you were referring to...

Nico Perrino: It's from September 2025.

Timothy Zick: Yeah. It mentions things like anti-American, pro-immigration. You're just being very transparent about the fact that you think you can criminalize thoughts and ideas and beliefs or ideologies, and the First Amendment stands directly contrary to that. So, that's not new, by the way. Trump was doing this back in 2016 and probably even before that, where he would refer to protesters as terrorists and agitators.

Agitators – that's not a crime. It's not a crime to agitate. It's a form of dissent, right? And dissent isn't a crime, but they want to make it a crime, or at least they want to give the impression that anytime there's a protest, it's a riot. Anytime someone's objecting to what they're doing –

Nico Perrino: It’s incitement.

Timothy Zick: – they're a terrorist, or they're inciting something.

Nico Perrino: It reminds me of what we would see on campus, where someone would say something that someone else found offensive and it'd be called harassment. These are words that I think –

Timothy Zick: Or violence.

Nico Perrino: Yeah, or words of violence. I'll never forget that protester at Cornell who stood up when Ann Coulter was speaking and said, “We don't want you to hear your words are violence.”

Timothy Zick: Yeah, and it's an effort to delegitimize protests altogether, right? So, just to suggest to people that there is no such thing as a lawful, peaceful protest. It's all violence or incipient violence, and we should crush it. Up to the point of, I think in the first term, Trump was asking his defense secretary, “Why can't we just shoot these protesters in the leg or the foot?” Thankfully, at the time, there were reasonable minds around him saying, “We can’t.”

Nico Perrino: Well, to my question to you earlier, it sounds like there's not much you can do to hold the government accountable even if they have.

Timothy Zick: Well, I think now I am concerned that if not has happened, right? I don't think they're just mowing down protesters, but...

Nico Perrino: No, that's what's happening in Iran, apparently.

Timothy Zick: Yeah. And hopefully, you don't bring that to the streets of the United States.

Clark Neily: Nico, I wanted to pick up on something that I think was a really important point that you alluded to before, which is, so you've got this presidential memorandum that sort of designates or labels organizations as domestic terrorist organizations. And I think you question whether, well, is that itself a First Amendment violation?

Nico Perrino: Because the government has the right to express its opinion.

Clark Neily: Well, so the point I was going to make is that one of the things that's, I think, extremely sinister about what we've been seeing over the past months is that there are these kind of interstitial spaces where it's not clear that the First Amendment or some other constitutional provision applies. You would think that it would. It's not clear that it does.

And this administration, I think, has been extraordinarily effective at exploiting these kinds of constitutional interstices where you can exert pressure, gain compliance without exposing yourself to sort of clear doctrinal constitutional transgression where a court's going to step in and say, “Okay, you can't do that.” And taken sort of one by one, they are merely concerning, I would say. But when you look at the sort of the whole fabric of all of the various ways in which the administration retaliates against, threatens, intimidates organizations and individuals for expression, simply for taking a position that is contrary to what the administration prefers.

I think, as I said before, a deeply sinister picture emerges of an administration that is surprisingly adept at suppressing dissent and gaining compliance, sometimes in ways that do blatantly violate the First Amendment or other parts of the Constitution, but more concerning, I would say, in ways that are not so clear, so that the target of that activity has to go to court and make new law, for example, in order to gain protection. Well, as a former litigator, I can tell you that takes years, if not decades.

And in the interim, an administration that is prepared to push the envelope will be able to silence a great deal of speech and gain a great deal of compliance simply by virtue of its willingness to bring to bear all of the various tools and powers available to it, many of which, again, will be effective within these kind of interstitial constitutional spaces where there's no clear restraint on government power. And that, to me, is the single most concerning thing that I'm seeing now.

Nico Perrino: Well, one thing that's interesting is you also have private civil actions that seem to be wielded to create outcomes that the government wants, Conor. For example, you have President Trump filing lawsuits against The Wall Street Journal, The New York Times, ABC, Paramount. And in the Paramount case – this was over a Kamala Harris interview on 60 Minutes – he filed a private civil suit against them.

But at the same time, you have the FCC that needs to approve a merger between Paramount and Skydance Media. Is it explicit that this is used as leverage? Is it not? What's going on there? But this seems to be that sort of interstitial space where the government, or in this case, President Trump, is doing something that I'm not sure we've seen another administration do that at least gives us the inkling that something nefarious is going on here.

Conor Fitzpatrick: That's exactly right. We've seen, as you mentioned, from his lawsuits against organizations like The Wall Street Journal, The New York Times, The Des Moines Register, Ann Selzer, who we represent in that action that President Trump brought, and attempt to use both the courts and, of course, the executive branch to try and punish those who the administration views as being either against its policies or against Donald Trump. And certainly, we saw with what happened with Jimmy Kimmel and Stephen Colbert over the summer that the FCC was not shy about saying, “That's a wonderful television network you have there. It would be a shame if anything were to happen to it.”

Nico Perrino: Brendan Carr said, “We could do this the easy way or the hard way.”

Conor Fitzpatrick: That's exactly right, and so once you have either a spoken or an unspoken understanding that coverage of the government needs to be favorable in order for the government to approve things, we are in a very scary place in terms of freedom of speech. Because a company like Paramount that has a multibillion-dollar merger that needs to go through is not – as a business decision, as a board with a fiduciary duty – is probably thinking, “Okay, I can pay 15 million dollars to settle this junk claim in order to get my multibillion-dollar merger through.”

As a business decision, that's just going to be a wise decision for me to make. And that's not the way it should be. Under the law, things like that are prohibited. It's First Amendment retaliation. It's unconstitutional conditions. We could spend an entire time –

Nico Perrino: But how would you prove that even if you wanted to challenge it in court, right? Because President Trump has the right to bring his lawsuit. I don't think anyone was saying, although it was very clearly being suggested, that if you don't settle this lawsuit over here, we're not going to approve your merger over there. I mean, Tim, how do you look at that?

Timothy Zick: Yeah, this has been a problem, I think, in terms of, as Clark said, understanding how – I don't know if it's adept at sort of taking advantage of these things or just it's a mode of doing business. This comes from the top, right? This is his method of sort of twisting arms, jawboning, it's sometimes called. Someone suggested at a conference we need a bigger bone for that. Femur boning or whatever you want to call it. It's been an enormous problem.

It's a problem for courts because they haven't confronted this kind of – I call it government speech – before the government can express its opinion. Yes, but the reason it's doing that is to put leverage and pressure on speakers. And that can have an enormous chilling effect.

Nico Perrino: And it's a little bit ironic because on the first day of the Trump administration, he issued an executive order banning this sort of government job.

Timothy Zick: Yeah, he said at his inauguration, "Free speech is back." But he left out the part of free speech "I like" is back, and everybody else. I wanted to sort of tie together one theme. And if you look at the law firm – not the law firm, the cases brought against the press, right? So, you think about those. They're not about damages to reputation, not about election fraud or any of that. They are the attacks on the bar and the attacks on universities, and the attacks on science; efforts to undermine institutions, the press, the bar, universities; who could possibly check?

Nico Perrino: You're saying that that's their actual motive. But if you look at them, they're defamation cases or consumer fraud cases in some cases.

Timothy Zick: Yeah, and they're deeply frivolous, them being kind, right? So, they're not brought for the remedy. They're brought for the effect. And some of these parallel proceedings tie in, right, and can sort of move the needle that way. But I just see the whole thing – you've got to look at this as a whole-of-government effort to sort of press on, coerce, and undermine these institutions.

Nico Perrino: One other theme throughout this administration has been the targeting of noncitizens, Conor, who speak out. We're representing the Stanford Daily and two unnamed plaintiffs in a challenge to protect the free speech rights of noncitizens. Where does all of that stand now? Because I understand that we've gotten some recent rulings in those cases.

Conor Fitzpatrick: Yeah. So, there have been some recent rulings. I would say the major one is in the AAUP v. Rubio litigation that went to–

Nico Perrino: This is American Association of University Professors.

Conor Fitzpatrick: That's correct. That's a litigation that went to a bench trial over the summer and –

Nico Perrino: What's a bench trial mean for a non –

Conor Fitzpatrick: A bench trial is a trial where a judge makes findings of fact rather than a jury. But otherwise, it's a trial where you put on witnesses, exhibits, things like that. So, Judge Young in the District of Massachusetts, after hearing the evidence, he heard not only witnesses from the challengers but witnesses from the government determined by clear and convincing evidence that the administration had, in violation of the First Amendment, abused its immigration authority by targeting pro-Palestinian speakers for deportation on the basis of protected speech.

So, that was a very favorable ruling. It confirmed a lot of what we say in our own lawsuit about noncitizens being protected by the First Amendment from disadvantageous treatment because of their opinions. But the fight continues. Our lawsuit is a First Amendment challenge to the two statutes that Secretary Rubio and the administration are relying on to try and revoke visas and deport people on the basis of protected speech. But this assertion of authority by this administration that they can just throw someone out for protected speech is very, very new.

The courts had treated it as more or less settled since at least 1945 that you couldn't throw someone out just because you don't like what they have to say, that even though there might be a lot more discretion in terms of when you're letting someone into the country, once they're here, just like anyone else, you can't say, “I don't like what you have to say; out you go.”

So, ultimately, where all of these cases are running to is a crash course between the First Amendment and the executives' claimed plenary authority over immigration. We think the First Amendment will prevail as it did in 1945, but the administration has not backed down. They still claim that they have the authority to deport someone simply on the basis of their opinions and will continue to fight against that.

Nico Perrino: And they did that as well after the Charlie Kirk assassination. Anyone who said something unkind about Charlie Kirk, who might have been on a visa or green card, risked getting deportation. I believe there was a tweet that the federal government sent out. Right, Conor?

Conor Fitzpatrick: Right. Six of them.

Nico Perrino: Where they listed like six different people.

Conor Fitzpatrick: Right. They revoked six visas because they said unkind things about Charlie Kirk after his assassination.

Timothy Zick: And more recently, some Europeans, one of whom has a green card because they took views contrary to the administration's own content moderation online, have found themselves in the same crosshairs. The lawsuit is fascinating. I went to it. The judge authorized virtual attendance, and I attended every day of testimony.

Nico Perrino: This is the AAUP case?

Timothy Zick: Yeah, AAUP. Sorry. It's just a fascinating case. You get a real bird's-eye view of how this policy was formed, who was charged with sort of investigating, where they got their investigative sources. They got almost everything from Canary Mission, which is a privately run website. And the profiles on that website are for people who engaged in sort of pro-Palestinian activism. And they were just put into investigative processes for all these ICE agents to look at. And some of them resulted in revocations of visas and green cards. And those are the high-profile cases that...

Nico Perrino: Well, you have the Rümeysa Öztürk case, right? And I think one of the things that we saw from the documents there is that they very clearly went after her for the op-ed that she had co-authored.

Timothy Zick: And the trial exposed every one of them – was gone after for protected speech. The government was asked repeatedly, "What's your evidence that they've broken any law?" And the people who were testifying, the government officials, these were high-level consular officials and agents; they didn't have any. What's fascinating to me about the case is how it sort of resolved. So, Judge Young had very strong words for the Trump administration. He called Trump an authoritarian.

He said the agencies – ICE and the Secretary of State – they engaged in a conspiracy to violate First Amendment rights. But then he took on the remedy part of the case, "What can I do about this as a judge?” And it doesn't match the rhetoric or the sort of strength of claims. He essentially authorized a lawsuit by members of these educational associations that sued if you were a member during this time period. So, not future members and not anybody else. You get an action in federal court with a presumption, and the government can rebut it that you're being investigated because of your political views. So, kind of weak tea.

Nico Perrino: But is that because the Supreme Court had recently said –

Timothy Zick: That's a part of it.

Nico Perrino: – that you have these universal injunctions?

Timothy Zick: It's part of it. But I think Judge Young was also troubled: “I can't tell them what to say or not to say because government speech is in play there. I can't completely constrain or coerce the executive branch. So, this is all I think I can do.” But you've got this massive chilling effect out there for anyone who's a non-citizen is expressing political views that may be disfavored. They're not helped by this ruling at all, which is why I'm glad there are other lawsuits, right? Maybe the remedy will be different in those lawsuits.

Nico Perrino: One of the things I try to do – we were talking a little bit before the show – is we spent about two weeks before we recorded this trying to get someone who was aligned with the administration on these sorts of free speech issues. We couldn't find anyone that was willing to come on and who could be here in D.C. I guess you might be able to get someone from the administration, but we had a really big challenge trying to get someone who was not within the administration to come in and defend these actions.

But one of the things that I do here to kind of play devil's advocate is that, well, these aren't citizens, and we make determinations about people in some cases based on ideology before they come into the country. Why would they have any sort of added rights once they're here in the country? How do you look?

Timothy Zick: There's more to it, right? So, you have these Cold War precedents that have never been completely discarded. The court has said non-citizens enjoy First Amendment rights, but it hasn't really addressed the scope of those rights. It has said you can't bring certain actions, like retaliation actions or selective prosecution actions. So –

Nico Perrino: One of my things, one of my issues here, goes back to first principles.

Timothy Zick: Sure.

Nico Perrino: We have a Declaration of Independence that says, “We hold these truths to be self-evident that all men are created equal, that they're endowed by their creator with certain unalienable rights.” And to me, that might suggest that to the extent our government has jurisdiction over anyone or in this country; that it has to abide by those natural rights that are inherent in just being a human.

Timothy Zick: Yeah, I'm just playing devil's advocate.

Nico Perrino: No, I know. I know. I know.

Timothy Zick: To be clear, I totally agree that –

Nico Perrino: And I'm just kind of venting.

Timothy Zick: It should be a universal right. It's a fundamental right. It should belong to at least to the extent you're talking about political speech, which is what we're talking about. That should be the situation. Now, the administration will say there's a federal statute that says the Secretary of State, even if it is protected speech, if a non-citizen says something that damages or harms foreign policy, then their visa can be revoked for that reason. That's a statute. You have to deal with that. Ironically, Donald Trump...

Nico Perrino: But statutes don't supersede the Constitution.

Timothy Zick: They do not, right? So, the only court I know of to have addressed it is Judge – Donald Trump's sister when she was a judge, his late sister, who said it's unconstitutionally vague, that statute. But I don't know of other courts that have addressed it. So, they do have a statutory basis that they're relying on. I do think that statute is unconstitutionally vague, if vagueness doctrine applies. I do think it violates the First Amendment. And I hope a court rules as such, right? One has, right. And maybe others will follow.

And I will say every one of the international students who was targeted, who brought a bail application, a habeas petition to get out of detention, all won their cases in part on First Amendment grounds. So, every district court that looked at that said, "Yes, they have First Amendment rights, and you can't detain them." That doesn't address the immigration part, just their detention.

Nico Perrino: Do you have any thoughts on this, Clark?

Clark Neily: Yeah, I wanted to make a deeper point about when the government acts pretextually, which is just a way of saying when the government says that it's doing something for one reason, but it's actually motivated by a different reason. And this can actually have tremendous significance when the government's actions is challenged. As Tim pointed out, there can be statutes that say that if the Secretary of State determines that someone is a threat to international relations or his ability to conduct diplomacy with other countries, that can be a basis for removal.

The problem, of course, is when you have a sufficiently cynical and dishonest administration and they're willing to invoke that authority when, in fact, what's really going on is that they object to the person's expression. And I can give you a really run-of-the-mill example. Imagine you have 10 or a dozen individuals, all of whom have some inaccuracy in the materials they submitted for their visa. And from what I understand, almost everybody does. It's a very complicated process, and there's going to be some discrepancy or some minor detail.

Nico Perrino: Yeah, and I think there's some sort of test for it. Maybe you know, Conor, it has to be material, and it has to be maybe intentional. I'm forgetting exactly what it is or something along the line.

Clark Neily: Exactly. So, then the point could be, “All right, that could be a valid basis for saying, ‘Hey, we need to revoke this person's visa because they were deliberately dishonest on a material point, or the thing they didn't tell us the truth about might have altered our decision.’” But now you imagine you've got 10 of these people; they all have some inaccuracy in their visa application materials that's on roughly the same par.

The only one who gets removed is the one who published an op-ed that the administration doesn't like. And the administration says, “Oh, trust us, it's because of the material misrepresentation in the application materials.” Well, that's an example of the pretextual invocation of a legal authority. And what's interesting to me about the Supreme Court's approach to pretextual justifications is it is all over the map. And generally speaking, the government is permitted to act on the basis of pretextual explanations. I'll give you a famous Supreme Court case.

I wish it were more famous. I think it is one of the most outrageous and absurd Supreme Court decisions that almost no one's ever heard of. And to make it worse, it's unanimous. It's a case called Whren v. United States from 1996. And it involved a traffic stop here in Washington, D.C. where two young Black men were driving an SUV. They rolled through a stop sign. They were pulled over. The police, in this case – it was sort of one of these high-crime units – searched the car and found drugs.

So, in this case, two things were true. There was, in fact, a traffic infraction which would supply a basis for making the stop. It is also the case that it is 100% clear that that was not the basis for the stop, that they were stopped because they were two young Black men in a car. One of the ways we know that, the unit that pulled them over was specifically forbidden from making traffic stops because they had more important work to be doing out on the street. And I could give you any number of other supporting details.

And the Supreme Court, again, unanimously held that even if a traffic stop was made for a pretextual reason, in other words, the police officer could come into court and say, “Okay, look, between you and me, I pulled them over for driving while Black.” But it is also the case that I did observe a traffic infraction. And the court will go ahead and say, “Okay, well, if there's a traffic infraction that you observed that would have provided a basis for the stop, we'll permit it,” even if it is the case that the real reason for the stop was a forbidden motive of racial discrimination. That's a textbook example of a pretextual justification being accepted by the court.

And I think one of the things that's absolutely appalling about Supreme Court jurisprudence is the number of times and the magnitude of the constitutional stakes in cases where the courts will accept a blatantly pretextual explanation for unlawful government actions. And it's just a fig leaf. The government will come in and just lie and say, “Well, you know, we did it for this reason,” when, in fact, it's 100% clear that they did it for some other forbidden reason. And more often than not, judges are required to accept at face value the obviously pretextual justification that's being offered by the government. And I think that immigration is one area in which we see that, unfortunately.

Nico Perrino: Yeah, Conor, go ahead.

Conor Fitzpatrick: I'd say you're absolutely right. And we used to see that a lot in the partisan gerrymandering cases, where government officials would come into court and try to say with a straight face, “Oh, no, we think these two cities that are hundreds of miles apart and connected by a single street are absolutely part of the same contiguous community.” And everybody kind of knew it was a joke. But one thing I would add to this idea that I totally agree with is just the avalanche of pretextual actions that this administration is taking.

We are starting to see, slowly but surely, a resurgence of selective and vindictive prosecution claims being allowed to go forward. We saw it with James Comey. We saw it with Letitia James. We're seeing it with Kilmar Abrego Garcia. These are doctrines that were borderline left for dead before this administration. It was so hard to make up even a prima facie claim to be able to pursue it. But now I think the federal courts are starting to catch on that sometimes the government lies. Everybody guard yourself.

Sometimes the government lies. And I think it's very important that doctrines designed to guard against pretextual actions see a resurgence in the federal courts to ensure that these pretextual unconstitutional actions can't just be brushed aside with the fig leaf of “we pinky promise we're doing this for the right reasons.”

Nico Perrino: One of the other areas during the Trump administration that we've seen a lot of action is in higher education. They've gone after a number of universities, mainly universities that had pro-Palestinian protests after October 7th, Columbia being one of them, but Harvard also being another. And in some of these cases the administration has revoked federal funding, billions of dollars in the case of Columbia and Harvard and conditioned a re-granting of that federal funding on certain conditions.

Among those conditions, in some cases, disciplining students, hiring or firing certain faculty – things that strike at the core of the rights of universities, for example, the rights to free speech and academic freedom. Many of these universities capitulated or went into negotiations with the administration, Columbia being one of them, but one of these universities, Harvard, decided to file a lawsuit and fight back. And what you saw after that, speaking to these vindictive prosecutions or investigations, is that there were something like maybe eight investigations –

Timothy Zick: I think more, even.

Nico Perrino: – that were launched against Harvard on any number of fronts by any number of agencies after Harvard decided to fight back publicly and then in court. And of course, they're arguing that this is First Amendment retaliation that's in court. I don't think we've gotten a ruling from the district court in that case yet, but...

Timothy Zick: We do have one.

Nico Perrino: Oh, we do?

Timothy Zick: Yes, in the Harvard funding case.

Nico Perrino: Oh, is it from...

Timothy Zick: From the district court.

Nico Perrino: From the district court.

Timothy Zick: Yes.

Nico Perrino: So, explain that. Where are we at on that?

Timothy Zick: Speaking of pretext, who completely rejected the pretextual reason the Trump administration gave for targeting Harvard, which was anti-Semitism?

Nico Perrino: So, was this on a motion to dismiss then?

Timothy Zick: This was, I think –

Nico Perrino: It was a preliminary injunction.

Timothy Zick: I think it was a motion to dismiss.

Nico Perrino: Okay.

Timothy Zick: It's not a preliminary thing. It's obviously being appealed. So, the judge credited the retaliation claim that Harvard filed. Said it was an unconstitutional condition. So, in other words, you're taking away all these federal funds for reasons that have nothing to do with anti-Semitism, right? You're sort of trying to do indirectly what you couldn't do directly.

Nico Perrino: The administration was trying to take away the right to admit foreign students and faculty.

Timothy Zick: That too, the separate lawsuit. And I think the same judge said no to that as well; rejected that. But to the point of sort of pretextual and vindictive and retaliatory actions, this judge at least saw right through that. I mean, you could just do the timeline and see that this had nothing to do with anti-Semitism, not everything to do with the fact that Harvard fought. And then again, the administration, including the president, making statements while Harvard's doing this the hard way. If they were just smart like Columbia, we wouldn't be in this mess, right? They'd already be through it.

Nico Perrino: But one of the messages you'll hear from the administration, “These are just district court judges. We're gonna win on appeal.”

Timothy Zick: Of course.

Nico Perrino: Or when we get to the Supreme Court.

Timothy Zick: Yeah, that's a real concern. So, a lot of district court judges in the cases I've been tracking – in about three-quarters of the 70 or so First Amendment lawsuits, there's been relief for the plaintiffs, right? So, the administration has an abysmal track record in First Amendment cases so far.

These are only district courts. As you say, once it gets up to courts of appeals, they may say, “Well, we think this case, for example, the Harvard case, didn't belong here in the first place. It should have gone to the court of claims, which deals with contract disputes.” So, sort of a jurisdictional thing, courts of appeals may focus on that.

Nico Perrino: I see you're always tweeting about these ways that courts get out of rule issues, Clark.

Clark Neily: Well, I think it's no accident that a wildly disproportionate number of federal judges are themselves former prosecutors and courtroom advocates for government. I've got one foot on that soapbox. I won't put the other one up.

But I do think that, you know, in some ways, the judiciary is a kind of intellectual ecosystem. And to have roughly half of that ecosystem consist of a very small, very select group of lawyers who chose to represent the federal government for the bulk of their career, then go on to make up nearly a majority of the federal judiciary, I think, is deeply concerning.

And one of the reasons, perhaps, that we see the proliferation of these nonsense doctrines, like the presumption of regularity and a willingness to accept blatantly pretextual justifications for government action, which notwithstanding, Conor's point about the sort of the resurgence or a temporary, I think, willingness of judges to express some skepticism, the general default, I think, is judges give the government far too much credence in court.

Nico Perrino: One of the challenges, though, Conor, is that you can go to court and you might win these cases, or you're likely to win these cases, but that assumes that you're willing to go to court, right? And so often we've seen institutions negotiate or settle or cave. You even had some law firms that did that rather than challenge the administration in court. How do we, as a society, address this situation where if you stand up for yourself, you're going to make your life a whole lot more difficult, so it's just easier to bend the knee?

Conor Fitzpatrick: I'm not sure I have a solution for you there, Nico.

Nico Perrino: Especially when you have fiduciary responsibilities, right? We were talking about Paramount. We were talking about the law firms. Do you want to lose some of your clients? Do you want to, you know, have to fire half your staff because you can't get any government business anymore, any business from anyone who works with the government?

Conor Fitzpatrick: I have a few ideas there. Whether any of them are practical, I will leave to the side. I think, one, we as Americans should prize, regardless of the side of this political spectrum they come from, when an organization or an individual decides to stand up for their constitutional rights.

It is not healthy as a nation, and it is not healthy for our constitution to be in a spot where whether we feel like defending a right depends on whether we like the person who's asserting it or whether we like what they're having to say. That means supporting the right to protest, regardless of whether it's someone protesting a mask mandate or a COVID vaccine mandate, the same as we do if they're protesting ICE. We have to be consistent on when we're standing up for the right to protest.

The second thing I would say is we should make it a bigger part of our political discussion how those who we vote for are going to use the power once they get there. I think especially now with the ecosystem of social media and how much it sort of feeds people what they already want to hear, it's so tempting to be drawn towards candidates who say, “I agree with everything you say, and I am going to be your revengeance against everyone whom you disagree with. I will get your payback for you, and it'll feel great once we're back in power.”

I think we need to be a lot more responsible as citizens with our vote on what we want our government to do. Do we want our government to just be a big brother that protects us and picks on people who we don't like, or do we want government to be there essentially as a banal provider of public services and for a national defense? I prefer it being the second, but judging by social media, a lot of people seem to prefer what's behind door No. 1.

Nico Perrino: Tim, we didn't see a lot of what we've discussed here in Trump 1.0. I always try to remind people we had four years of Donald Trump before the second term.

Timothy Zick: Yes, and this is my second Trump book, so there was enough in the first half of the first term to produce a book about the sort of gathering threats to First Amendment freedoms. They didn't come to fruition for lots of different reasons. One was he didn't have a compliant bureaucracy. They hadn't dismissed everyone from federal service who wouldn't serve the administration's needs. You had advisors around him, as I said, who were resisting some of his worst impulses. Those people are gone now.

I think Trump wanted to do some of the things he's now actively doing. He talked about them. He talked about the retribution against his political enemies and using government power to do all those things. He had very nasty things to say about protesters, and he talked about punishing them in certain ways. So, all of this was sort of predictable if you were just sort of following.

The problem is people say, "Well, don't take him literally. I think that was a mistake, and we're now sort of paying the consequences collectively for not paying sufficient attention." But the themes of retribution and coercion and orthodoxy and do the hard way or the easy way. Those were all readily apparent just halfway through the first term.

Nico Perrino: Clark, let's say the political winds shift. We get a new Congress. We get a new president. What sort of reform should be put in place to address some of the issues that we've discussed here? I mean, what would be your list?

Clark Neily: Yeah. So, I'll leave you with a bit of a haunting image, and that is I do a fair amount of speaking with the Federalist Society, and I often ask audiences, and these are not sort of left-wingers by any stretch. They're the opposite. What percentage of the federal government would you say is unconstitutional because it is not plausibly authorized by the enumerated powers in the Constitution? And it's remarkable over a period of time that the response has been remarkably consistent, about 80%. People estimate about 80%. So, what I would say to people is, first of all, imagine that this administration could be 80% less menacing.

You just wave a magic wand, and suddenly it shrinks by that amount, and you don't need a magic wand. You just need a proper interpretation of the Constitution. So, I don't know if that's a reform or not, but what I would say is if we had the kind of judicial engagement that we argue for at Cato, and I used to argue for at the Institute for Justice, where judges were taking more seriously constitutional limits on government power, the amount of power that the federal government has to exercise would be vastly less than what it has today.

That would be the No. 1 thing I would say, is to devolve power back to the states where it belongs and to the people, which is the design that the Constitution bequeathed us. But unfortunately, over a period of time, the federal government has usurped power that it doesn't rightfully possess. Another point I think would be, and again, maybe this is a reform, maybe it's not, is a more rigid separation of powers.

Congress has ceded a tremendous amount of its policymaking, its constitutionally designated policymaking role, to the executive branch. And so, it's hardly a surprise that an ambitious and cynical president would soak up every bit of that power and seek to use it to advance his own ends, which is what we're seeing here.

So, I don't know that it's necessarily a reform that you could express in the form of a statute, but I would certainly like to see Congress claw back its power, guard that power more jealously, and make sure that whoever is the president understands –both the president and the senior officials in that administration – that the Congress will be more apt to exercise its impeachment power going forward.

So, I think those are the two things that I would most like to see: a more serious approach to constitutionally limited government and a resurgence of the separation of powers, where each branch not only takes seriously its constitutionally designated role, but jealously guards that role and keeps the other branches away from it so that they don't usurp the power in a way we're seeing now.

With President Trump exercising, I would say, simultaneously, a tremendous amount of legislative power, all of the executive power, and in some cases, the judicial power as well. That is absolutely intolerable. And we will bequeath the Constitution that went to extraordinary lengths to prevent that concentration of power, and yet we're seeing it.

Nico Perrino: So, to stick to the Constitution.

Clark Neily: I mean, I think that's not a bad prescription for a lot of what ails us.

Timothy Zick: I have a couple more specific things. We're talking about legislation. I think the foreign policy immigration statute should be either repealed or narrowed, clarified. I think there should be a statute that authorizes civil actions against federal officers.

Nico Perrino: It could be one sentence, right? That'll probably do it.

Timothy Zick: People have proposed it already. It's just a matter of getting it into the system and having a Congress willing to do something and stand up for its prerogative. So, those are at least two things. And the last thing I would say is we haven't talked about the Insurrection Act, which Trump has threatened to invoke. In the first term, he threatened, and he's threatening again. This may be more real threat, which essentially authorizes the president to put military personnel, active-duty military personnel, on the streets to engage in what's ordinary law enforcement activities, including policing protests.

And that statute is woefully out of date. And people have been pushing that agenda to sort of get that amended and updated and narrowed. And it's just one of so many statutes that give the president this sort of emergency power. And then the parameters of that power are just ambiguous.

Nico Perrino: Yeah, I know that statute goes way back. But I have a hard time if you just kind of look at the original purpose of our Constitution, understanding that it's constitutional, given everything the founders said about standing armies.

Timothy Zick: Right.

Nico Perrino: Say nothing of the roving warrants that we're also seeing, which were one of the other precipitating causes of the revolution.

Timothy Zick: Right.

Nico Perrino: But my understanding is that, you know, if the Insurrection Act gets to a court, it'd be really hard for a judge to strike it down. But that's not my bailiwick. Conor, we've already gone to Clark. We've gone to Tim. Is there anything else you want to add here on prescriptions moving forward?

Conor Fitzpatrick: I'll add one more to my wish list because I completely agree with the suggestions made prior, particularly that there needs to be a federal statutory cause of action equivalent to Section 983. One other that I would recommend, and this isn't an official statement of fire policy, it's an official statement, I guess, of Conor Fitzpatrick policy. I think we need a statutory fix to effectively overturn the CASA decision. I think the fact that right now you cannot go to a single district court and enjoin a federal law or a federal action on a nationwide basis is making it much more difficult in this second Trump term to restrain some of the more unconstitutional actions as it was in the first term.

I understand the Supreme Court's reasoning going back to how injunctions were treated back in the English common law, but I think just the sheer practical nature of not – it's simply not practical to file a motion seeking an injunction in all of the, I think it's 94 district courts in the United States that are applicable only to the people who file it, and then you have to hope it goes up to the Circuit Court of Appeals and then to SCOTUS, and then they'll rule on it. That leaves hundreds of millions of Americans' rights in the balance until it can work its way up to the Supreme Court.

Nico Perrino: Well, you could file a class action, right?

Conor Fitzpatrick: You could.

Nico Perrino: It’s difficult.

Conor Fitzpatrick: But then you have to certify a class; you have to show commonality. Class actions are not easy. I've yet to be persuaded that the prior system of allowing nationwide injunctions was unworkable for anything other than potentially the workload on the Supreme Court shadow docket. I have yet to see any evidence that the Supreme Court shadow docket has been meaningfully reduced by the absence of nationwide injunctions.

And I think the ability to go to a federal district court, go to a judge who's been nominated by a president, approved by the Senate, the same way as all nine justices on the Supreme Court, and get at least a temporary preliminary injunction against something that the executive branch is doing in a way that protects not only your client's constitutional rights, but someone's constitutional rights in Florida and California. That is a pivotal tool in protecting constitutional rights across the country.

Nico Perrino: Well, folks, we have to leave it there. I want to thank Clark Neily to my right, Professor Timothy Zick here in the middle, and Conor Fitzpatrick for helping us look at one year of Trump 2.0. You can check out Professor Zick's book, Trump 2.0: Executive Power and the First Amendment. It's available wherever fine books are sold, I'm assuming.

Timothy Zick: Yes.

Nico Perrino: It provides a deeper dive into the subject beyond just this hour-long conversation that we had. I am Nico Perrino, and this podcast is recorded and edited by a rotating roster of my FIRE colleagues, including Bruce Jones, Ronald Baez, Jackson Fleagle, and Scott Rogers. The podcast is produced by Emily Beeman.

You can learn more about So to Speak by subscribing to our YouTube channel or Substack page, both of which feature video versions of this conversation. You can also follow us on X by searching for the handle FreeSpeechTalk. You can send us feedback. If you have hate mail for our guests, I'd be happy to forward it to them, or love mail too; all the better. It's sotospeak@thefire.org. Again, that email address is sotospeak@thefire.org.

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Duration: 71 minutes