My Letter to the Incoming President

Four proposed actions the Trump administration can take to protect and preserve free speech

Today, I sent a letter to President Trump, congratulating him on his victory and outlining policy changes that I believe would improve the climate for free speech on- and off-campus. I’ve sent letters like this since the 2008 election cycle, but FIRE’s 2022 expansion to off-campus speech has broadened the scope of these recommendations. In this year’s letter, FIRE calls on the incoming administration to take action in four areas:

1. Support the Respecting the First Amendment on Campus Act

In September, the House passed the “Respecting First Amendment on Campus Act,” which prohibits “free speech zones,” protects student groups from excessive event security fees, and requires institutions to disclose their free speech and association policies. The Act also encourages institutions to adopt a pro-speech policy statement.

Eliminating free speech zones and prohibiting excessive security fees are both obligations of the First Amendment, as understood by the courts. This Act is necessary because many campuses have shown no interest in cultivating that understanding. As the letter explains:

A 2024 FIRE study found that 15 percent of public institutions maintain a policy with a clear and substantial restriction on student speech. [Spotlight on Speech Codes 2024] Worryingly, another 69 percent of public colleges maintain a policy with either a clear restriction on speech or a vague restriction that could too easily be applied to restrict free speech. Only 15 percent of public schools' speech policies comply fully with their First Amendment obligations, which should be a national scandal.

I always hope American higher education institutions will see the value of the free speech culture to which they owe their existence. Maybe they still will. In the meantime, legislative assistance in applying the First Amendment would go a long way to stopping the worst violations.

2. Address the abuse of campus anti-harassment policies that erode free speech

In the letter I sent to President Trump for his first inauguration in January 2017, I listed a number of problems on campus and solutions the government could implement. One of those problems was that the Department of Education had promulgated a “blueprint” for Title IX enforcement that failed to meet what the Supreme Court has determined is the minimum legal standard for peer-on-peer harassment to be punishable. That standard, from the 1999 Davis v. Monroe County board of Education decision, defines harassment as behavior that is:

so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities.

Meanwhile, the Department of Education’s blueprint said that harassment under Title IX could include “any unwelcome conduct of a sexual nature,” even if not severe, pervasive, or objectively offensive. As today’s letter explains:

During your first term, your Department of Education helpfully promulgated Title IX regulations that included a speech-protective definition of peer-on-peer sexual harassment that substantially incorporated the definition articulated in Davis. In the Biden administration's now-vacated Title IX rules, the Department of Education adopted an unconstitutional definition of sexual harassment. In the order vacating the Biden rules, a federal judge called the Department's definition "vague and overbroad." [Tennessee v. Cardona, No. 2:24-072, 2025 WL 63795, at *4 (E.D. Ky. Jan. 9, 2025).]

But the current Department of Education uses a substantially similar — and equally unconstitutional — definition of peer-on-peer harassment in the context of Title VI, which prohibits discrimination on the basis of race, color, and national origin. While religion is not a protected class under Title VI, the Department of Education under four consecutive presidential administrations has determined that Jewish students, and students from a variety of faiths, may face harassment tied not to their religious practices, but rather to their shared ancestry or ethnic characteristics. As such, for the past 20 years, the Department of Education has interpreted Title VI to protect Jewish, Muslim, Sikh, Hindu, Christian, and Buddhist students, or any other religious group, against discrimination based on racial or ethnic stereotypes.

So I call on the President to support legislation that codifies the Davis definition for all education-related antidiscrimination law, adds religion as a class explicitly protected under Title VI, and codifies the practice of applying Title VI to racial and ethnic stereotyping.

Those changes to Title VI will go a long way to improving the campus climate for Jewish students. But I ask the President to make one more change: to rescind Executive Order 13899, which directs federal agencies to use the International Holocaust Remembrance Alliance definition of anti-Semitism. As I state in the letter, “[w]hen used to enforce Title VI, the IHRA definition is vague, overbroad, and viewpoint-discriminatory in ways that pose serious threats to campus expression.” The IHRA definition was meant to measure sentiments, but you can’t punish someone for having bad sentiments alone.

3. Rein in government jawboning

One of the revelations from the Twitter files was just how much influence the government had over the platform, even though it never directed the platform to do anything, and frequently had its messages delivered through proxies. That use of government pressure to convince private individuals or companies to engage in censorship is called jawboning, and it’s bad for a free society. Last year, the first reform FIRE called for in our Report on Social Media was for the companies to be transparent about any time the government involved itself in a decision made by the platform.

In today’s letter, I call for further reforms:

• Support the passage of legislation to prohibit all federal employees from requesting suppression of protected speech on social media platforms. Until that occurs, FIRE encourages you to issue an executive order along similar lines.

• Support the passage of legislation to require transparency when government officials communicate with social media platforms about their content moderation practices. FIRE's SMART Act is one such model: It requires government officials to publicly report any communications sent in their official capacity to social media companies about content on their platforms. [FIRE Story: Government transparency is critical when fighting censorship] This transparency would allow users to know when the government contacts a platform about their content. If the content is subsequently removed, the user may be able to challenge the government's actions.

• Refrain from threatening or pressuring social media platforms to change their content moderation practices or suppress particular users. Presidents, like all government officials, retain the right to criticize the actions of social media companies. But such criticism must not take the form of threats, implicit or explicit, to bring any government action against the platforms because of their content moderation practices.

4. Protect First Amendment rights in the regulation of AI technologies

Last year, I testified before a House subcommittee about the threat posed by regulatory capture to the development of AI. Regulatory capture works like this: Existing companies support government rules that create high costs for anyone wanting to enter the business. Those costs serve as entry barriers, reducing competition and effectively creating an oligarchy of existing companies. The government thinks it’s protecting people when in reality it’s protecting existing big business, reducing innovation, and creating costs that will one way or another be passed on to end-users.

What makes regulatory capture particularly offensive in the context of AI is that code is speech. As I explain: “The First Amendment applies to artificial intelligence just as it does to other technologies that Americans use to create and distribute writings, images, and other speech. Nothing about AI software justifies or permits the trampling of those rights, and doing so would undermine its potential as a tool for contributing to human knowledge.”

I concluded the letter to the President by offering FIRE’s help in protecting and defending our First Amendment, which is the same offer FIRE makes to each and every one of us, every day. Transitions can be unsettling, and I can easily imagine there are those who feel their rights are under particular threat every time the White House changes hands. No matter who is sitting in the Oval Office, FIRE is here for you, ready to help.

SHOT FOR THE ROAD

Since it came up, here’s my testimony to a Congressional subcommittee on the threat AI regulation poses to free speech from February 6, 2024: