The Assault on Freedom for the Thought — and Speech — We Hate: Stifling, Restraining and Punishing Criticism and Protests

Plus: Australia Conference Is Massive Success

People can differ with President Trump on many subjects and for many reasons. I have no problem with those who  agree or disagree with him about tariffs, inflation, health care, and, even to a more limited degree, immigration. I find it more questionable for people to have voted for him to be our President, our role model to youth and the rest of the world, despite his character: someone who lies habitually and seemingly for sport, who treats women like playtoys and calls reporters piggies, who uses the legal system not for justice but to squeeze his enemies, and who seems to believe that making money is the only goal in life.

But for us, worse than any of the above is his proclivity to stifle speech, to censor dissent and to seek retribution against those who disagree with him. After all, MLRC’s ByLaws make crystal clear that our membership is for those who are “interested in promoting freedom of speech and freedom of the press”. The very notion of stifling, restraining or punishing speech one disagrees with directly contradicts these First Amendment principles. Indeed, the right to criticize those in power was perhaps the most basic tenet of our founding fathers, and is the pillar on which our nation is based.

Our President has punished the AP for not going along with his inane idea of renaming the Gulf of Mexico; he has gone on diatribes and sought the firings of late-night tv hosts because they, as comics, had the temerity to humorously criticize him – not to mention threatened the FCC licenses of their networks;  he has urged the investigation of perceived enemies, from James Comey (didn’t Comey’s memo about Hilary help him get elected in 2016? ) to Fed chief Jerome Powell (who once was a neighbor of mine, and is probably the most moral and ethical guy in DC); denied access to the Pentagon and to the Presidential press pool to news outlets he disfavors while increasing access to information to those he likes; has punished law firms which years prior had opposed him; tried to influence the curricula of our most respected academic institutions; and revoked the visas of foreign students who criticized the war in Gaza.

Moreover, he has berated and threatened impeachment of federal judges whose opinions he disliked – indeed, just last week  he attacked several Supreme Court justices as “fools”, “disloyal to our constitution” (just a bit of hypocrisy there) and a ”disgrace to our nation” because of their tariff ruling; his Air Force removed training materials featuring the vaunted Tuskegee Airmen to apparently comply with his Executive Order eliminating DEI programs (although that action was rescinded due to the public backlash); and just this month his Administration removed a slavery exhibit at  – oh, the irony – Philadelphia’s President’s House because it” inappropriately disparaged Americans  past or living” rather than focusing “on the greatness and of the achievements and progress of the American people.”  ( The judge, likening the Government action to those in 1984, wrote that Government “cannot dissemble or disassemble historical truths.”) I could go on.

The purpose of these assaults on our most vaunted freedoms is clear. It is to silence critics, to weaken or eliminate opposition to the sitting Government’s power and positions, and to prevent those not in power from actively participating in the democratic process. At bottom, free expression is the enemy of authoritarians. Disagreeing with, or demonstrating against, government policy is not “domestic terrorism” , as this Administration puts it – most shamefully, as it describes the legal Minnesotan protestors who were shot and killed by ICE – rather,  protesting is a proud example of American democracy. This all follows the authoritarian playbook- to demean and disparage in the most recent example the judiciary, but, in general, critics, so as to diminish their credibility and the public’s trust in them, thereby either limiting the criticism or making it easier for the leader to assert that they are unfounded and illegitimate, thereby strengthening his power, and even maybe allowing him to overwhelm and defy those critics.

Part of this Administration’s strategy is to take these steps continually, so often that we are no longer shocked or talking about each abuse. Indeed, any one of these outrages would have resulted in major scandal in prior administrations , but now go pretty much unnoticed as we have somehow become inured to them.  One example -perhaps the worst–  of stifling criticism and overcoming dissent comes from one of the President’s acolytes, Gov. Greg Abbott in Texas. There and in other states public high school students  and their schools were threatened with punishment for taking part in demonstrations protesting ICE and the Administration’s deportation tactics.

According to a New York Times article, Gov. Abbott, a former Texas Supreme Court judge and Texas Attorney General, threatened that state funding could be taken from school districts which allowed such protests, and that disorderly students who protest should be arrested. He added that schools and staff “who allow this behavior should be treated as co-conspirators.” Topping that, the Texas Education Agency warned that school districts which facilitated student walkouts could be taken over by the state.

Leave it to the students to bring some sanity – and, we might say, constitutional perspective -to the situation. A 17 year old student told the Times that they spent over a week planning their protest, including reviewing the Tinker v. Des Moines case – something Gov. Abbott might have read. As over half of Texas public school students are Hispanic, many had personal reasons to protest. A 16 year old Hispanic Dallas student said her cousin had been deported at an ICE check-in, leaving his wife and 5-year old son to move in with her family. Saying it more simply and directly, a 16-year old Dallas student said,”It is important especially right now that students understand that they have the right and the privilege to speak up for what they believe in.” And in our constitutional democracy, that is especially true when what you believe in differs from what the President or the Government says.

The fact that in Texas these protests are continuing notwithstanding the threatened punishments of peaceful speech and that in Minnesota the public outcry and demonstrations against the ICE killings have led to the reduction of the ICE “surge” are hopeful signs. But this President was taught by Roy Cohn and others that he can never lose –  what better proof than his refusal 6 years later to still not accept his defeat in 2020 – so winning this battle and overcoming his authoritarian maneuverings to shut up all dissenting views and shut down all opponents  will be a prolonged fight. It will only be won if those being stifled and restrained, including media companies and law firms, take collective action and work together in a courageous and cohesive way to resist those who would minimize them.

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Australia is a 22 hour trip in the air from New York – over 30 hours if one includes the traffic-filled drives to and from airports, the mile long hikes to the distant airport gates, the endless TSA security  and customs lines, the waiting time for change of planes in LAX, the tarmac delays, and the like.(Flying back is a bit shorter because of the prevailing winds.) If one is spending only a few days Down Under, and one is not interested in any of the hundred movies offered on board, it seems like a particularly long trip – but in the case of my recent trip for our second Ausralian Conference, it was most interesting and worthwhile.

The birth of the Ausralian Conference came some four years ago at a reception on the Tower Bridge during a previous London Conference. (Mark your calendars for our upcoming London Conference September 27-29.) A few Aussies accosted me to demand an answer to the following question: if the MLRC is holding European Conferences for EU lawyers in various European countries, why isn’t it also offering an Australian Conference to its media bar. After all, they said, they are having the same problems and media law backtracking as lawyers in the US and UK. They pledged to offer cost-free sites for the conference and its receptions, and presto, two years ago we held our first Australian Conference in Sydney. 100 lawyers, almost all from Australia attended – more than we had at any of our European conferences in  Paris, Berlin and Amsterdam. (Our conferences in Ireland, which came after Sydney had about that number; and I’m not counting our London Conference which welcomes Americans and lawyers from all over the world, unlike the European conferences which are focused on European lawyers.)

Sydney II, held last month outdid even the first conference there. We had 125 lawyers attending, among them maybe three Americans and one New Zealander, but otherwise all Aussies. And beyond engaging and timely substantive panels, we also enjoyed the modern but scenic and energic feel of the city. David Heller and I stayed at a nondescript hotel just a  block or two from the conference site and but a block from Circular Quay, the hub of Sydney, what with the bustle of ferry boats chugging in and out of the harbor. Just around the Quay, on a peninsula of sorts surrounded by water stands Sydney’s vaunted Opera House, an architectural masterpiece which has come to symbolize the city. And right across the water is the Sydney Harbor Bridge, which became famous during the 2000 Olympics (and which I had climbed to the top of during a previous visit).

All the bays surrounding the city and these landmarks were visible not only from the offices of Minter Ellison, the firm which so kindly  and efficiently hosted our Conference, but also from the venues of our two evening receptions, at sponsors Thomson Geer and Gadens offices. Both receptions were lively and fun, with copious amounts of wine and beer being consumed.

But the key to the massive success of the Conference was its programs, which featured timely sessions on just the topics the Australian lawyers wanted to hear about, and lively and engaging speakers who spoke knowledgeably about those subjects. The keynote panel got  the day off to a rousing start. It featured three judges, two retired, who were well versed on the details of defamation law, and who spoke with clarity and expertise on some of the recent changes in Australian law. Having judges speak openly about the law was clearly a boon to the lawyers present.

Following that program were two panels on some of the recent changes in Ausralian media law – sessions on the public interest defense and the changes in privacy law. While in many areas American law is not that much more protective to the media as elsewhere, the discussion in this session underscored how in the privacy area American law is far more permissive. A fourth program before lunch featured MLRC’s own David Heller and News Corp. litigator Grant McAvaney discussing AI and some of the legal issues it raises, concerning copyright law and deepfakes.

In an informal luncheon talk, David and I discussed the political state of affairs in the US. It was pretty apparent that the Australian audience had no warm feelings whatsoever towards the current US president, and no understanding as to why over 70 million Americans could have voted for him. Somewhat mystified by that ourselves, we focused more on Trump’s libel lawsuits against the media and the merits, or lack thereof, of those cases. I always find it amazing how up on the American political scene foreign audiences are.

After lunch came two panels of general interest, one on how journalists – and their lawyers – are being targeted by  the subjects of their truthful reporting, the other on legislation of hate speech and on-line speech; Australia had recently made news by legislation strictly regulating on-line access to children under 16 years old. The targeting panel featured an Australian court journalist who- together with his family – had been threatened with unspeakable violence. His courage in working through such serious threats was more than admirable.

Finally, the program came to an end with an interactive pre-pub vetting exercise. Though it was the end of a long day – the eighth of eight programs – the audience got quite involved and were active participants in the hypo. It also was interesting to see how not only were there differences in analysis among lawyers from different jurisdictions, there were variations as well among lawyers being governed by the same laws. Pre-pub review is clearly more art than science.

In general, the Conference was a great success. Credit and great thanks go to the Organizing Committee who came up with the topics for the panels and the speakers who were chosen. The committee consisted of Peter Bartlett and Dean Levitan of Minter Ellison – and special kudos go to Peter, the Dean of he Ausralian media bar and IBA honcho, who is retiring after an illustrious career, and was given a much-deserved shoutout at the Conference – Marlia Saunders of Thomson Geer, Marina Olsen of Gadens, Gina McWilliams of News Corp. and Harry Melkonian, as well as David Heller. Without them the Conference could never have been the great success it was.

George Freeman is MLRC executive director. All opinions expressed are his and not those of the organization. Comments welcome at gfreeman@medialaw.org.