So to Speak: The Free Speech Podcast – Episode 263 Summary

Title: Free speech in Trump 2.0
Date: February 2, 2026
Host: Nico Perrino (FIRE)
Guests:

• Clark Neely (Cato Institute, Senior VP for Legal Studies)
• Timothy Zick (Professor, William and Mary Law School; Author, "Trump 2.0 Executive Power and the First Amendment")
• Connor Fitzpatrick (Supervising Senior Attorney, FIRE)

Episode Overview

As the Trump Administration concludes its first year of a second term—dubbed "Trump 2.0"—Nico Perrino hosts a panel to dissect the year’s impact on free speech. The discussion centers on high-profile incidents involving law enforcement, protest rights, press freedom, government retaliation, targeting of noncitizen speech, and the administration's overall strategy toward dissent and institutional pushback. The episode maintains a critical but rigorous tone, deeply examining both the legal state of play and broader trends.

Key Discussion Points & Insights

1. Recent Incidents: Protesters' Rights, Law Enforcement, and Filming Police

• The Alex Preddy Shooting (Minneapolis):

  • Preddy, an ICU nurse, was shot and killed by ICE agents while filming their actions at a public protest. DOJ launched a civil rights investigation.
  • Legally, people have a well-established First Amendment right to record law enforcement in public, as long as it doesn't interfere with police work.
    • Zick (02:57): "You have a right to record what's going on in public, including how law enforcement is doing its job... as long as you maintain a distance and allow them to do their job."
  • Ongoing debates exist as to what constitutes "interference," with both legal standards (reasonableness) and potential statutory definitions.
  • Preddy’s carrying of a lawful firearm at a protest is protected in Minnesota; there is no applicable state or federal law prohibiting it.
    • Neely (07:20): "...as best we can tell, Alex Preddy was completely within his rights as a permit holder under Minnesota law to have that handgun with him... he certainly didn’t brandish it, as a number of federal officials misrepresented."

• Use of Force & Accountability:

  • The courts judge use of force by law enforcement through the "totality of the circumstances," which can weigh in factors such as training and context.
  • Federal law offers almost no remedy for victims of rights violations by federal law enforcement, outside of rare Bivens actions.
    • Fitzpatrick (13:42): "Very, very little [can be done]... if people want to know what they can do to hold this officer accountable, it's one, hope the DOJ brings charges... and two, as hokey as it sounds, vote."

• Training & Professionalism Concerns:

  • Guests repeatedly note the "aggression, unprofessionalism, and incompetence" of federal agents, particularly those involved in protest policing.
    • Neely (12:08): "That was just a smorgasbord of unprofessional law enforcement... what I see is a poorly trained, poorly led, unprofessional organization."

2. Intimidation and Retaliation Against the Press & Political Opponents

• Prosecution of Don Lemon (20:21–24:07):

  • Don Lemon, a journalist, was indicted after filming, remaining at, and reporting on a protest that entered a church. DOJ’s pursuit of Lemon is called "peculiar and abnormal," with aggressive efforts to secure an arrest warrant.
    • Fitzpatrick (23:26): "Regardless of how this ends up... this has been a very peculiar pursuit... to the point that the Chief Judge said that he’d never seen anything like this."

• Broader Pattern of Retaliation:

  • The administration is seen to "weaponize" government processes (criminal and civil) against press and political opponents (e.g., Letitia James, James Comey, John Bolton).
  • Trump is explicit about wanting to punish his critics through legal process.
    • Zick (24:07): "Trump has said that... he's happy when his political opponents have to spend money and expend resources defending against charges... Turnabout is fair play. Retribution is the name of the game."
  • Courts historically grant DOJ the "presumption of regularity"—they trust the government’s motives and representations—but guests argue this has been severely eroded.
    • Neely (25:49): "The presumption of regularity has been soaked in gasoline and set on fire by the Trump DOJ over the past year."

3. Reframing Protest as 'Domestic Terrorism' and the Use of Rhetoric

• Labeling Dissenters as Terrorists:
  • Trump’s National Security Presidential Memorandum Seven and public statements equate protest with domestic terrorism.
    • Zick (30:21): "You can say that, but when you operationalize it... the First Amendment is going to be invoked... You can't target people because of their left-wing ideology..."
  • "Interstitial spaces" are increasingly exploited, where First Amendment protections are unclear or untested, allowing for intimidation or pressure without overt legal violation.
    • Neely (32:55): "...there are these kind of interstitial spaces where it's not clear that the First Amendment ... applies... this administration... has been extraordinarily effective at exploiting these... for pressuring compliance."

4. Indirect Suppression: 'Jawboning' and the Use of Regulatory Leverage

• Leveraging Civil Suits and Regulatory Approval:
  • The administration has filed lawsuits against press organizations and allegedly used regulatory agencies (e.g., FCC) as leverage for favorable coverage or outcomes.
    • Fitzpatrick (35:53): "Once you have either spoken or an unspoken understanding that coverage of the government needs to be favorable... we are in a very scary place in terms of freedom of speech."
  • The challenge of proving pretext (hidden government motives) in court is highlighted. Trump’s rhetoric and disclosure occasionally provide unusually direct evidence.
    • Zick (37:41): "This is Trump. This comes from the top... It's his method of twisting arms... the reason it's [government speech] doing that is to put leverage and pressure on speakers..."

5. Targeting Noncitizen Speech and Immigration Authority

• Recent Legal Victories & Ongoing Fights:

  • Several high-profile legal cases challenge the administration’s use of immigration powers to silence or deport noncitizens for protected speech, especially pro-Palestinian speakers.
    • Fitzpatrick (40:01): "Judge Young... determined... that the administration had in violation of the First Amendment abused its immigration authority by targeting pro-Palestinian speakers for deportation..."
  • The administration claims statutory authority based on broad, vague language—some courts are pushing back, but the "remedy" for victims remains limited.

• Government Reliance on Pretextual Justifications:

  • Widespread concern about the government hiding true motives (retaliation for speech) behind legal justifications.
    • Neely (49:15): "When you have a sufficiently cynical and dishonest administration... they're willing to invoke that authority, when in fact what's really going on is that they object to the person's expression."

• Selective Prosecution and Judicial Change:

  • Courts are beginning to allow more selective and vindictive prosecution claims than before, responding to increased evidence of motive.

6. Retaliation Against Universities and Academic Freedom

• Withholding Federal Funds:

  • Universities have faced loss of federal funding for insufficiently disciplining pro-Palestinian protestors or faculty. Harvard’s legal challenge exposed the administration's pretextual reasons—judges are beginning to reject these at the district level.
    • Zick (55:16): "Speaking of pretext... [the judge] completely rejected the pretextual reason the Trump administration gave for targeting Harvard, which was antisemitism..."

• Judicial Skepticism Emerging:

  • District courts increasingly recognize retaliation claims, but higher courts’ receptiveness remains uncertain.
    • Zick (56:45): "Once it gets up to courts of appeals, they may say... the Harvard case didn't belong here... jurisdictional thing... courts of appeals may focus on that."

7. Practical Chilling Effects & Systemic Pressure

• Why Many Institutions Settle or Bend the Knee:

  • Even winning court cases requires the willingness and resources to fight. For many businesses and organizations, it’s easier to settle or comply than risk retaliation or protracted legal battles.
    • Fitzpatrick (58:50): "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."

• Citizens' Role & Political Responsibility:

  • The panel stresses the need for both legal and cultural resistance to retributive, strong-man government—citizens must actively defend rights for all, not just those with whom they politically agree.

8. Reform Prescriptions & Looking Ahead

• Structural Reform:
  • Dramatically reduce federal power to shrink opportunities for abuse. Enforce strict Constitutional limits and separation of powers.
    • Neely (62:36): "If we had the kind of judicial engagement that we argue for... the amount of power... would be vastly less than what it has today."
  • Congress must reassert authority and actively safeguard its prerogatives; more robust threat of impeachment for overreach.
• Statutory Solutions:
  • Repeal or drastically narrow statutes allowing for removal or deportation for “damaging foreign policy” via speech.
  • Create a federal equivalent to Section 1983 to allow civil damages suits against federal officers for rights violations.
    • Zick (65:45): "There should be a statute that authorizes civil actions against federal officers."
• Other Legal Remedies:
  • Update or limit the Insurrection Act.
  • Allow for nationwide preliminary injunctions once again, to enable timely blocking of unconstitutional government action.
    • Fitzpatrick (67:05): "I think we need a statutory fix to effectively overturn the CASA decision... It's simply not practical to file a motion... in all of the 94 district courts..."
• Civic & Political Cultural Change:
  • The need for voters to demand responsible stewardship of power—rather than retribution—at the ballot box.

Notable Quotes & Memorable Moments

• Clark Neely (07:20):
  “Looking beyond the question of... statutory restrictions... 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...”

• Connor Fitzpatrick (13:42):
  “Very, very little [you can do]. Hopefully there will be someday... 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... a Bivens action.”

• Timothy Zick (24:07):
  “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... defending against charges... Turnabout is fair play. Retribution is the name of the game...”

• Clark Neely (25:49):
  “[The] presumption of regularity has been soaked in gasoline and set on fire by the Trump DOJ over the past year.”

• Timothy Zick (30:21):
  "[I]f you read the president’s document... it mentions things like anti-American, right, pro immigration. I mean, 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."

• Clark Neely (32:55):
  “…one of the things that’s extremely sinister... is that there are these kind of interstitial spaces where it’s not clear that the First Amendment... applies... the administration... has been extraordinarily effective at exploiting these… where there’s no clear restraint on government power.”

• Connor Fitzpatrick (35:53):
  "...once you have either spoken or an unspoken understanding that coverage of the government needs to be favorable... we are in a very scary place in terms of freedom of speech."

Key Timestamps for Important Segments

• Protest Rights & Alex Preddy Shooting: 01:46–15:30
• Press Rights, Don Lemon Case, and DOJ Retaliation: 19:09–26:41
• Labeling Protest as Terrorism, Exploiting Legal Gray Areas: 28:34–35:02
• Leverage, Regulatory Pressure, and Civil Suits: 35:02–39:39
• Targeting Noncitizen Speech, Immigration-based Retaliation: 39:39–53:47
• Universities, Funding Retaliation: 53:47–58:18
• Cultural and Structural Reform Prescriptions/Conclusions: 62:24–69:18

Tone & Takeaways

The conversation is sober, urgent, and rooted in constitutional doctrine and lived legal experience. While highly critical of the Trump 2.0 Administration's approach to free speech, the participants highlight both the unprecedented nature of governmental tactics and the real, practical impacts on individuals, institutions, and American democracy writ large. Listeners are left with both a detailed understanding of the complex legal landscape and a call for vigilance, reform, and principled defense of civil liberties, regardless of political winds.

For more detailed discussion, case law, and analysis, see Professor Zick's book: "Trump 2.0 Executive Power and the First Amendment".