The Big Chill?
July/August 2025An interview with free-speech advocate and attorney Aaron Terr
It’s impossible to talk about religious freedom without also talking about free speech. Through the decades, landmark Supreme Court cases have showcased the intimate link between these two constitutional principles. Do Jehovah’s Witnesses have a right to share their faith door-to-door? In 1940 the Court said yes. Can state law compel a Christian website designer to speak messages, through her designs, that go against her deeply held religious views? In 2023 the Court said no.
In the United States, strong protection for free speech has long been a point of pride. Survey after survey shows that Americans, regardless of their political persuasions, see free speech as one of the defining features of their constitutional republic. It’s an opinion backed by reality. Compared with other Western liberal democracies, America’s free speech protections have, historically, been uniquely broad and robust.
And it is this reality that makes a recent open letter, signed by seven national free-speech advocacy groups, all the more noteworthy. Although acknowledging that “there have been other times in our nation’s history that witnessed sustained and misguided efforts to suppress speech,” the letter says that recent actions by the current presidential administration “taken together, represent an extraordinary and in some ways unprecedented challenge to First Amendment rights and the values they embody.”1
Are they right? Is free speech under pressure in America today? And if so, what does that mean for other civil liberties, including religious freedom?
For answers, Liberty editor Bettina Krause spoke with attorney Aaron Terr, who serves as director of public advocacy for the free-speech organization Foundation for Individual Rights and Expression, known as FIRE.
When it was launched almost 25 years ago, FIRE focused mainly on free speech on college and university campuses. It won a string of high-profile cases, some involving Christian student clubs that had been shut down by university administrations or denied the same access on campuses as secular student clubs.
In 2022, FIRE expanded its efforts beyond higher education and is today one of America’s most active and successful defenders of free speech, both on- and off-campus. FIRE’s mission is nonpartisan and straightforward: to defend free speech as a fundamental human right in the courts, as well as in the court of public opinion.
Bettina: When it comes to questions of free speech and constitutional limits on government actions, this is a confusing time for many Americans. I’m hoping you can help us sort through the daily deluge of headlines that, in one way or another, touch on free speech.
Aaron: There’s certainly a lot going on, and honestly, it’s even hard for me to keep up with, and I do this for a living! So I can understand that the average American, who’s not a lawyer, who doesn’t devote their life to free speech and First Amendment advocacy, can have a tough time keeping up with everything that’s happening, and that has happened during the first 100 days of this administration.
Bettina: I want to start with this question. Who “owns” free speech as an issue? Is it a liberal value, or is it a conservative value?
Aaron: I don’t think it’s a conservative or a liberal value. It’s a constitutional value. Free speech is fundamentally a check on government power. We need the First Amendment because power brings with it the temptation to silence dissent—that’s just human nature. The First Amendment ensures that no single person or administration can declare by fiat what’s true or false, what’s right or wrong, and make it illegal to disagree. So regardless of wherever you fall politically, you have a strong interest—a strong stake—in being free from that kind of authoritarian nightmare, where the government has control over what you can say and think.
But unfortunately, “free-speech hypocrisy” or “free-speech opportunism,” or however you want to describe it, is common.
Bettina: What is “free-speech hypocrisy”?
Aaron: Both liberals and conservatives are guilty of exploiting free speech when it’s politically convenient and abandoning it when it’s not. When they’re out of power, their only weapon is their voice, and they will rediscover the virtues of free speech. But then once they’re back in power, they realize, “Oh, well, now I can pull the levers of government to silence my political opponents,” and so censorship starts to look appealing again, and free speech starts to look like a little bit of a nuisance.
That dynamic has unfortunately played out throughout American history. There have been periods and contexts in which free speech was more kind of coded left or right, and this is always dependent on what was the dominant ideology or the dominant power at the time.
Bettina: How significant is free speech in relation to other civil liberties? At Liberty magazine we focus on the religion clauses of the First Amendment. But how closely are these clauses intertwined with free speech?
Aaron: Free speech and religious liberty are clustered in the same constitutional amendment for a reason. I’ve dedicated my career to defending free speech because I believe it’s arguably the most important right we have. I view it as the precondition for all other rights, because without free speech you can’t even argue in defense of other rights or oppose their infringement.
Free speech and religious liberty are also closely intertwined with such rights as the right to due process of law. That simply means that the government can’t arbitrarily deprive you of rights like free speech without going through a fair legal process.
But free speech and religious freedom, in particular, are closely interrelated. FIRE has often had cases that implicate both freedoms. For example, a college denying a Christian student group official recognition or funding or equal access to resources just because of their religious views—that’s a violation both of their right to free speech and their right to exercise their religion.
And religious liberty, of course, often involves speech and expressive acts. When a Catholic priest or a rabbi is delivering a sermon, or a Muslim is kneeling down on a prayer rug in silent prayer, Jehovah’s Witnesses going door-to-door to evangelize, these are all protected acts of free speech and religious freedom. And the First Amendment also, of course, protects the right to express opinions on issues like abortion and same-sex marriage that might be informed by a person’s religious beliefs.
Both of these rights are most important for people who have minority views or beliefs. When you’re a vulnerable minority, that’s when you most need these rights to protect you because you’re most likely to face censorship by hostile governments or disapproving majorities.
Bettina: I think we can all agree, in the abstract, that free speech is a fantastic idea, but then when we start seeing—as we have over the past few months—how government policy and politics starts interfacing with that right of free speech, we begin seeing some really polarized disagreements. What’s happening today, from your perspective as an advocate for free speech, that raises concerns for you?
Aaron: There’s a lot going on. We’ve seen attempts to deport foreign students and green card holders because of their anti-Israel advocacy. The administration is trying to cripple law firms for opposing the president in court or representing clients or causes he dislikes, revoking their access to federal buildings, pressuring federal contractors who do business with them to cut ties.
The administration is stripping universities of federal funding for refusing to accept the administration’s demands that they impose speech codes, that they adopt ideological litmus tests, and generally relinquish academic freedom.
You’ve got federal prosecutors threatening criminal investigations over speech that’s critical of the administration or its allies. You’ve got the White House cutting off press access to outlets based on their views and editorial choices, and the Federal Communications Commission launching baseless investigations into news networks whose coverage displeases the president. And that’s not even an exhaustive list.
And none of this is subtle; it’s a pattern. It’s the federal government using its full weight to pressure, intimidate, and punish dissent and people or speakers whose speech the administration finds politically inconvenient. I think it’s notable how open the administration has been about it. It doesn’t hide the fact that it’s targeting speakers based on their viewpoints, even though that is the cardinal sin of First Amendment law.
But I think that boldness and openness is intentional because the goal isn’t just to punish individual speakers, it’s to send a message. It’s to make others think twice before they speak up, before they represent the “wrong clients,” or before they protest a government policy. And when that kind of intimidation comes from the highest levels of government, it’s easy to see how it can freeze people into silence.
Bettina: Can you help us understand how a free-speech infringement in one area can filter down in ways that could ultimately start affecting individuals in another area? For instance, the issue of law firms. The administration is applying pressure to some wealthy elite law firms; they’ll suffer economic harm if they don’t abandon certain viewpoints. But this is not an overly sympathetic scenario for many people! This is a generally unpopular group. Why should the average American be concerned?
Aaron: I think part of the strategy is to go after targets that might be unsympathetic to broad swaths of the American public. Law firms are targets; elite universities such as Harvard and Columbia are another. But to take the example of law firms. The administration is targeting these major law firms because of whom they represented and what type of cases they’ve taken on. For example, one firm was targeted because it represented Dominion voting systems in its successful defamation lawsuit against Fox News over claims about rigged voting machines. Another law firm was targeted because of the pro bono work it did, including challenging the administration’s policies on immigration.
The effect of these orders is to deny access to federal buildings, revoke security clearances, and basically cripple the law firm’s ability to represent parties and disputes with the federal government. And the administration is also using these threats to pressure firms into agreeing to deals to do millions of dollars of free pro bono work on initiatives that the administration supports. So there’s punishment, and there’s also a kind of extortion.
Why should ordinary people care about this? I think it’s a serious threat, broadly speaking, to the independence of our legal system and to the rule of law. And I get that lawyers aren’t always the most sympathetic figures. Everyone knows a good lawyer joke, and I say that as a lawyer. But at the end of the day, our society depends on the rule of law. It depends on there being lawyers willing to represent unpopular clients who may be just ordinary Americans who are in the government’s crosshairs. There need to be lawyers willing to challenge the legality of government actions and policies to prevent us from sliding into an authoritarian society.
And if you’re someone who’s being prosecuted by the government, it you’re challenging a law’s constitutionality, or your rights are otherwise under threat, you probably need a lawyer. But the danger of the administration’s actions is that lawyers may be scared to represent you in your case; they may be fearful to take on any case in which they think they might face retaliation from the government.
Even if you support the policy outcomes sought by the current administration and you don’t like who’s being targeted, it’s laying the groundwork for future administrations to wield that same power against people and organizations that you do agree with, that you do support. So today it’s Harvard and Columbia University and elite left-leaning law firms or mainstream media outlets like CBS and NBC. But tomorrow it could be religious universities; it could be Fox and other conservative media. It could be other law firms that have a focus of representing conservative clients and viewpoints—they could be targeted by a future administration and have their access to federal buildings cut off if we leave these attacks unchecked.
Bettina: So what’s good for the goose is good for the gander?
Aaron: Exactly.
Bettina: Let me then play devil’s advocate. There may be some who say, “Well, what the Trump administration is doing doesn’t sound good, but it’s hardly unprecedented.” For instance, we saw in the Obama administration, especially with regard to interpretations of Title IX requirements regarding sex discrimination on campuses and so on, attempts to coerce speech.
Aaron: To be clear, past administrations absolutely engaged in censorship. I think all presidential administrations push boundaries to some extent. But what sets this current administration apart is the scope and scale and bold use of state power to retaliate against opponents and silence dissent. It is a systematic and coordinated crackdown on dissent, and retaliation against those whom the president perceives as standing in the way of his political agenda. FIRE has criticized the Obama and Biden administrations for threatening free speech. You mentioned Title IX; that’s an issue we’ve long been involved in and advocating on. President Trump, to his credit during his first term, repealed those previous Obama-era Title IX rules, and we applauded that. We advocated for that, and it strengthened due process and free-speech protections for all college students. The Biden administration we heavily criticized for leaning on social media platforms to police so-called misinformation.
But what we’re seeing under President Trump in his second term, which is different from his first term, is massive in scale and scope and in how openly it’s being done. And some of it, like the executive orders targeting law firms or stripping colleges of federal funding without going through any of the established legal processes, some of that appears to be unprecedented. So there’s a pattern of both parties pushing the limits of government power in ways that violate or chill free speech. But I think the way the current administration is blowing past those limits is noteworthy. And if we don’t acknowledge that, we risk normalizing a level of retaliation and control that no administration, left or right, should be allowed to exercise.
Bettina: Is the only way to respond to this through the courts? Or are there other ways to push back?
Aaron: Courts are critical. But they can also be slow, and a lot of harm can happen to free-speech rights before a judge can even weigh in. I think that is where public pressure matters, too. When universities or law firms or journalists or advocacy groups speak out, when they refuse to cave to government pressure, that helps reinforce legal boundaries. As more people speak up, it sends the message that we’re not going to allow this type of infringement on Americans’ rights to be normalized or tolerated.
We’ve now seen public commentators from across the political spectrum, including conservatives who still believe strongly in constitutional principles and the rule of law, calling out the administration for its lawless actions. These are encouraging signs. And I think this shows that these aren’t just partisan issues, this isn’t just partisan bickering; it’s genuine and well-founded concern about the administration’s encroachment on constitutional limits.
Bettina: There have been rumblings about the IRS taking action against the tax-exempt status of some private nonprofits, such as Harvard, which have disagreements with the administration on certain issues. And I’ve heard commentary that says, “Well, this isn’t necessarily problematic or unprecedented, because in the 1970s the government enforced its viewpoint on Bob Jones University—a private university—via the tax code.”
Can you unpack that a little? Are there potential dangers down the track of using the IRS in this way? Because I suspect there are a quite a few nonprofit organizations out there, many of them religious as well, who would have reason to not want a future government to weigh in on their viewpoints.
Aaron: I think it’s important to establish a constitutional principle here. No one’s arguing, and certainly FIRE is not arguing, that universities or any institution has an automatic right to a tax exemption, or that those funds or benefits can’t come with certain strings attached. But the nature of those strings matters. The government can’t leverage funding—whether it’s a grant, a contract, or a tax exemption—to strong-arm private institutions or individuals into giving up their constitutional rights. These benefits can’t be used as a tool to enforce ideological conformity.
So no one’s automatically entitled to a government benefit, but the government can’t weaponize them to suppress disfavored speech. A 501(c)(3) status tax exemption is a benefit for institutions that have an educational, religious, or charitable purpose. We’ve been here before with President Nixon trying to audit his enemies; the Obama administration was criticized for targeting conservative nonprofits; and the IRS under Obama targeting conservative nonprofits. And those actions were rightly condemned. I think this is no different. If we start using the tax code to punish dissent, no group is safe, whether it’s Harvard, the Heritage Foundation, the ACLU, a church group, or whoever.
It is true that, in the case of Bob Jones University, the court upheld revoking the university tax-exempt status because of the university’s policy of racial discrimination. But the case went through a long series of procedures; it took years, spanned multiple administrations, and was based on an unambiguous and long-standing federal policy of nondiscrimination. So you could argue that it was about ideological misalignment between the government and a private university, but it also wasn’t just purely about punishing speech or an ideological viewpoint. Rather, it was about the discriminatory conduct of the university. That’s very different from what the administration is proposing now, which is to go after First Amendment–protected speech and advocacy, and to do it in a way that doesn’t abide by any of the established legal processes for revoking these government benefits.
Bettina: Right—there’s a whole lot of due process that has to play out in a multiyear legal case as opposed to an executive order that’s shot out of the White House.
Aaron: Exactly.
Bettina: Let’s wrap up by going back to where we started. How are we mere mortals meant to sort through the headlines? Because we get opposing views expressed by talking heads on conservative networks and liberal networks. As someone who works in this space every day, how would you advise us to read headlines in a way that’s constructive rather than just overwhelming?
Aaron: There’s a lot of noise. It can be hard to separate legitimate concerns from the partisan narratives that get wrapped around them. I’m obviously biased, but I’d encourage people to follow FIRE’s commentary on free-speech issues. I think our track record speaks for itself. We’re nonpartisan, we’ve opposed censorship from the left and the right during our 25 years. We don’t pull punches, we don’t pick sides. We’re trying to call balls and strikes on the First Amendment and free-speech principles as our only guide. And so I think we can be a useful resource for people who want clarity.
And healthy skepticism is always a good thing. Don’t take everything you see at face value, whether it’s from the administration’s defenders or its critics. I just gave the example when it comes to the efforts to strip funding from universities where many defenders will say it’s about enforcing civil rights laws. Don’t just automatically accept that explanation, because it’s really going far beyond that.
In the months ahead I would encourage people to watch for how the legal and cultural pushback builds. As I mentioned, we’re already seeing pushback from across the ideological spectrum, from people who don’t agree on much but who do agree that government retaliation against speech crosses a red line. There have already been some preliminary court victories, and we’ll see more court challenges and, hopefully, more courts reining in the administration when it violates the Constitution. And also look at what conservative judges are ruling. There was a 7-2 Supreme Court decision on that immigration issue involving the person who was wrongfully deported despite an order withholding his removal to El Salvador. When you have a 7-2 Supreme Court decision that includes most of the conservative-leaning justices, that should signal that this isn’t a partisan issue. Or look at the recent opinion from Judge Harvey Wilkinson on the Fourth Circuit, raising concerns about how the administration is flirting with undermining the rule of law. For a conservative judge like Judge Wilkinson, who’s been on the bench for many years, to say something like that, that should raise anyone’s antenna.
1 “An Open Letter to Leaders of American Institutions,” May 15, 2025, signed by the Committee to Protect Journalists, Knight First Amendment Institute at Columbia University, PEN America, Foundation for Individual Rights and Expression, American Civil Liberties Union, Freedom of the Press Foundation, and Reporters Without Borders (RSF USA).