When the Founders drafted the First Amendment, they were not writing on a blank slate. They were responding to a long, bitter history of governments punishing disfavored speakers – especially critics of official power.

That history is not abstract. It is the core of a new amicus brief filed by Protect the First Foundation and its co-amici – Neutral Principles and the Center for Individual Rights – challenging four executive orders targeting law firms that have drawn the ire of President Trump. It warns that what is happening now has happened before. And the warning comes with a remedy – the Founders’ gift of the First Amendment to protect speech.

At issue are executive orders that impose penalties on law firms because of the clients they represent, the lawyers they have hired, and the arguments they have made. That is not just politics. It is viewpoint discrimination – government retaliation for disfavored speech and association.

The Founders Knew This Playbook

Long before the American Revolution, English rulers used licensing systems to control who could speak and publish. Printers needed government approval. Critics were denied licenses. Dissenters were punished. And the secret Star Chamber enforced these rules without juries or meaningful safeguards. Its purpose was simple – to punish opposition.

America’s Founding generation saw this clearly. As the brief explains, these systems were “among the very evils they identified as threats to the freedoms they would later enshrine in the First Amendment.” What mattered was not just outright censorship. It was targeted punishment – the government’s ability to choose who could speak and publish, and who could not.

That same dynamic is at work today when the government uses its power to deny contracts, revoke access, or impose regulatory burdens on disfavored speakers.

The Stamp Acts – Regulation as Suppression

The British Crown did not always silence critics directly. Sometimes it taxed them into submission. The Stamp Acts imposed costs on newspapers and pamphlets, especially those used to spread political dissent. Meanwhile, pro-government publications were spared or supported. The result was predictable – critics were marginalized, and government-approved voices flourished.

The Founders understood this as a direct assault on the freedom of the press. As the brief notes, even indirect burdens – when applied selectively – were understood as assaults on freedom. 

That principle matters today. You don’t need to ban speech outright to violate the First Amendment. You can burden it, isolate it, and punish it through the selective use of government power. Witness the attempts by Federal Communications Commission Chairman Brendan Carr and Federal Trade Commission Chairman Andrew Ferguson to punish journalists and commentators.

Or consider the executive orders that would have stripped lawyers of the ability to obtain security clearances, do any kind of business with the government, or enter a federal building – perhaps including a courthouse.

“Seditious Libel” – Punishing the Critics

The clearest historical parallel is the doctrine of seditious libel – the crime of criticizing the government. Under British law, even truthful criticism could be punished. As one formulation had it, “the greater the truth, the greater the libel.”

The colonial trial of John Peter Zenger in 1735 became a turning point. Prosecuted for criticizing a royal governor, Zenger was acquitted by a jury that rejected the idea that government could punish its critics.

The Zenger case underscored for the Founders, who would later write the Constitution, that a government that can punish its critics is a government without limits.

The amicus brief draws a direct line from that history to today, noting that punitive actions against lawyers for representing unpopular clients or advancing disfavored arguments were understood as classic violations of core freedoms. 

Executive Power Was Meant to Be Limited

The danger is compounded when such actions are justified as exercises of executive discretion. The Founders had just fought a revolution against a king who claimed broad, unchecked authority. They determined not to allow any form of Caesarism in their new country.

As the brief explains, the Constitution’s grant of “executive Power” was understood to be narrow – focused on carrying out the law, not creating new authorities and punishing political opponents. Unchecked discretion was not a feature of the new system. It was the very abuse the Constitution was designed to prevent.

The Modern Echo

We have seen in the Biden Administration’s attempts to secretly censor “disinformation” on social media, and now in the Trump Administration’s attempt to punish speech, a return of concepts like licensing regimes, the Stamp Act, and seditious libel in modern form.

The Founders did not trust government – or anyone – to police speech fairly. That is why they wrote a rule, not a suggestion, forbidding the government from abridging the freedoms of speech, press, or association. Full stop.

It doesn’t matter what you think of a journalist, a law firm, or a commentator. An authority that can be used against them can one day be used against you.

If the punishment of speech is allowed to return, the First Amendment becomes not a shield for dissent – but a relic of a freedom we once had.

The Founders saw this danger clearly. The question now is whether we still do.

​The latest furor over whether Stephen Colbert can air an interview with Democratic Texas Senate candidate James Talarico exposes a relic of broadcast regulation that no longer fits the modern media world: the FCC’s “equal time” rule. And what we’re seeing isn’t just awkward – it’s constitutionally and technologically outdated.

The rule, rooted in the Communications Act of 1934, requires broadcasters who give airtime to one political candidate to offer comparable time to opponents. In an era of three networks and scarce spectrum, regulators claimed such mandates served the public interest. Today, the rule feels as antiquated as a Philco radio crackling with the Eddie Cantor Show.

Even worse, enforcement is inconsistent. Traditional news programs are largely exempt from strict balancing requirements, while talk shows face a shifting and often opaque standard. When Arnold Schwarzenegger announced his California gubernatorial run on The Tonight Show in 2003, the FCC declined to invoke equal time. Yet now, Colbert faces scrutiny for doing what modern media personalities do every night – interview public figures.

Joe Lancaster, writing in Reason magazine, spells out how badly the equal time rule had become superannuated by 2024.
 
“Today the broadcast networks no longer have a stranglehold on what people can watch. Last year, according to Nielsen, the combined share of TV viewership that took place on over-the-air broadcasts or cable fell below 50 percent for the first time, as streaming skyrocketed. Only 20 percent took place on conventional broadcast television – meaning 80 percent of all TV viewership was not subject to any FCC content regulation, much less equal time rules.

“When the equal time rule was drafted, a far more limited number of frequencies were available across the broadcast spectrum. But that world no longer exists. We've reached the point where nearly 17 percent of American adults get their news from TikTok.
 
“The equal time rule imposes burdens on one group of broadcasters while sparing their cable or streaming competitors. Any public benefit that its drafters intended no longer meaningfully exists. Let's abolish it before the next election cycle begins.”
​
Lancaster points to some history that should be our guide.
 
In 1974, the U.S. Supreme Court in Miami Herald Publishing Co. v. Tornillo overturned a Florida law that required publishers to print a reply to any political editorial or personal criticism, print version of the equal time rule.
 
At that time, a dominant newspaper held tremendous sway in a market. Today, in most cities, the local newspaper is just another website. As with newspapers, broadcasters are now just one of many media outlets constantly competing for our attention.
 
It is time for the law to adjust. Throw the equal time rule into the round file.

​When a federal judge this week struck down President Trump’s executive order targeting the WilmerHale law firm, ruling the order unconstitutional, it was the third recent slap-down of his efforts to punish individual firms. It also brought into stark relief how rapidly this administration is moving in two radically different directions on the First Amendment.
 
On the positive side, the president issued on day one an executive order reaffirming this administration’s commitment to the First Amendment. That order fairly criticized the Biden administration for “exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”
 
Following up on that order, Secretary of State Marco Rubio pledged to “close the book” on “the weaponization of America’s own government to silence, censor, and suppress the free speech of ordinary Americans.” He fulfilled this promise by shuttering the agency’s Global Engagement Center, which secretly tried to kill conservative publications and served as a Trojan horse for filtering content moderation requests to social media platforms.
 
On the other hand, Trump has repeatedly used executive orders to go after past political opponents, putting law firms they had been associated with in the crosshairs for their political leanings.
 
This week, Senior Judge Richard Leon of the U.S. District Court for the District of Columbia essentially said “enough.” He granted summary judgment in favor of WilmerHale, finding the president’s order violated key First Amendment protections and constituted an improper attempt to punish WilmerHale for its legal advocacy.
 
As with other executive orders, this one had barred WilmerHale lawyers from federal buildings, ordered a review of client contracts, and suspended the firm’s security clearances. Any of these measures alone would have been enough to make it impossible for WilmerHale’s 1,100 lawyers to represent many of their clients, hobbling the careers of those lawyers and the cases of their clients.
 
Judge Leon found these measures retaliatory, noting they stemmed from the firm’s representation of clients and causes President Trump dislikes, especially WilmerHale’s long association with former special counsel Robert Mueller.
 
Judge Leon rejected the administration’s effort to defend its order piece by piece, but instead compared it to “gumbo” with the opening section condemning the firm for the hiring of Robert Mueller to justify the later “meaty ingredients – e.g., the Andouille, the okra, the tomatoes, the crab, the oysters.” But, Judge Leon wrote, it is the opening section that vents on Robert Mueller, “the roux” which “holds everything together. A gumbo is served and eaten with the ingredients together, and so too must the sections of the Order be addressed together … this gumbo gives the Court heartburn.” 
 
One doesn’t have to be a fan of the lengthy Mueller “Russian collusion” investigation to share Judge Leon’s heartburn. Leon warned that upholding the order would betray the vision of the Founders. Judge Leon’s opinion finds the executive order to be a grand tour of violated First Amendment rights – from retaliation for speech, to viewpoint discrimination, interference with petition rights, and infringement of free association. The judge wrote: “The Order shouts through a bullhorn: If you take on causes disfavored by President Trump, you will be punished!”
 
The parallels to the administration’s enjoined orders against Perkins Coie and Covington & Burling are equally clear. Judge John Bates, in blocking an action against law firm Jenner & Block, quoted the Supreme Court in a major precedent, National Rifle Association of America v. Vullo (2024), one that ought to make it clear to conservatives what it would feel like if the shoe were on the other foot. Judge Bates wrote:
 
“More subtle but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government-imposed orthodoxy. This order, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers. It thus violates the Constitution, and the Court will enjoin its operation in full.”
 
Especially concerning to these jurists was the orders’ use of federal contracts to coerce firms and clients. As Judge Leon wrote, that is coercion, not policy. The adversarial system depends on lawyers being free to take on controversial cases without fear of retribution. Nine firms settled to avoid similar orders. WilmerHale chose to fight – and won a sweeping ruling for the First Amendment and for the principle that legal advocacy must remain free from political interference.
 
With these precedents in place, we hope it is clear to President Trump that attacks on law firms are going to continue to hit a brick wall, one that likely extends all the way to the Supreme Court if necessary.
 
A better way forward is to drop this fruitless campaign of harassment and return to what worked so well for President Trump early on – defending the First Amendment.