By Jeremy Schulman
In December, Trump adviser Kash Patel set off alarm bells when he said that if the former president returns to the Oval Office, his new administration might prosecute media figures and others “who lied about American citizens.”
“We will go out and find the conspirators, not just in government but in the media,” Patel told Steve Bannon. “Yes, we’re going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections—we’re going to come after you. Whether it’s criminally or civilly, we’ll figure that out. But yeah, we’re putting you all on notice.”
Patel prefaced this menacing promise by insisting that a future Trump Justice Department would “follow the facts and the law.” But that was hardly reassuring. As legal scholar Jacob Mchangama explained in his 2022 tome, Free Speech: A History From Socrates to Social Media, the use of government power to punish journalists and dissidents for spreading fake news and “seditious libel” has for centuries been a favorite tool of tyrants.
The modern United States has generally been unique in this respect. With some glaring exceptions, American courts no longer allow law enforcement to target citizens for expressing disfavored views. For years, Americans have been widely supportive of the protections afforded by their country’s “free speech exceptionalism.” But as Mchangama warns, recent survey data suggests that the country’s remarkable “consensus around free speech” appeared to “break down during the presidency of Donald Trump.”
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Jacob Mchangama is the Founder and Executive Director of The Future of Free Speech. He is also a research professor at Vanderbilt University and a Senior Fellow at The Foundation for Individual Rights and Expression (FIRE).