Law Firms, Executive Power, and the Return of the Star Chamber

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.

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