The essence of free speech isn’t just that you will find the text of the First Amendment in copies of the Constitution. It requires living up to the principle in practice: for freedom of religion, speech, press and association to be exercised freely without fear of ruinous retaliation and the abuse of state power. Today, a vicious campaign against these freedoms is being waged by the new right under President Donald Trump, Elon Musk and their allies.
There has been much discussion of the “information environment” and how it ultimately affects the behavior of voters in the exercise of our democratic self-governance. A crisis has been quietly brewing, fueled by the misuse of defamation law in the form of strategic lawsuits against public participation (SLAPPs) and outright abuses of state power. What was once a slow boil has now erupted into full view, as political actors and powerful figures weaponize institutional risk aversion to suppress speech they don’t like.
The fear of litigation has become deeply ingrained in professional journalism, distorting the ability to report the truth. This underscores a chilling reality for journalists, commentators and political opponents alike. Free speech in the United States is under attack through a diffuse, deliberate effort to undermine our core constitutional freedoms.
The fear of litigation has become deeply ingrained in professional journalism, distorting the ability to report the truth.
As Mike Masnick, editor of Techdirt and online free speech expert, aptly noted, “Defamation law has been so widely abused to chill speech and so few people know it.” The use of SLAPPs — lawsuits designed to intimidate and financially exhaust critics, even when they are legally meritless — has become a primary weapon in this war on speech. And when private lawsuits are not enough, state power is increasingly being mobilized to achieve the same ends, turning free expression into a high-stakes gamble for anyone daring to speak truth to power.
Defamation law, ostensibly meant to protect reputations against malicious falsehoods, is being twisted into a bludgeon to silence criticism and accountability — where even the threat of a defamation suit can serve to chill free speech. And in some cases, SLAPPs abuse other areas of law to target speech in order to evade the high First Amendment bar for defamation under Supreme Court precedents.
Elon Musk’s lawsuit against Media Matters, for example, epitomizes this trend. Media Matters reported on ads for major brands running next to neo-Nazi content on Musk’s X platform, formerly Twitter. Instead of addressing the substance of the report, Musk retaliated with a lawsuit, in this case based not on defamation as such but an even more outlandish “consumer fraud” theory. By allegedly presenting misleading examples, even though they were undeniably real and similar ones are easy to come by, the theory is this somehow falls under defrauding people into not using or buying ads on X. And as Musk frequently does, the case was filed in the Northern District of Texas to engage in blatant “judge shopping.” It paid off, with Judge Reed O’Connor, long known for his solicitousness toward conservative political efforts, allowing the case to proceed to trial despite its flawed premise.
The message was unmistakable: Critics calling out extremist content on his platform could come at a steep personal cost. It is not unrelated that Media Matters, faced with massive legal fees in fighting the wealthiest man in the world, was recently forced to resort to mass layoffs.
Donald Trump’s lawsuits provide further examples of this deeply disturbing strategy. He sued pollster Ann Selzer and the Des Moines Register for publishing a poll showing Kamala Harris ahead of him in Iowa — a lawsuit so baseless that its sole plausible purpose was to punish and deter unfavorable coverage. Similarly, Trump sued CBS over an interview with Harris, absurdly alleging unfair editing of the interview amounted to “deceptive practices” under Texas business fraud law, demonstrating how the rich and powerful are increasingly using litigation to control narratives. CBS is reportedly considering a settlement in part because of their regulatory interests at stake under the new administration.
These private SLAPPs are now being supplemented by direct state action, amplifying the chilling effect on speech. Florida Gov. Ron DeSantis’ “Stop WOKE Act” targets private employers for expressing disfavored views, while his retaliation against Disney for criticizing his policies exemplifies the use of government power to punish speech. Attorneys general in Texas and Missouri have launched criminal investigations into Media Matters. A federal judge enjoined these investigations as obviously retaliatory in violation of the First Amendment, but once again, the process of even having to litigate the matter is the real punishment.
Instead of addressing the substance of the report, Musk retaliated with a lawsuit.
Even the Federal Communications Commission (FCC), under its new Trump-appointed chair Brendan Carr, has revived previously dismissed complaints against media outlets seen as liberal-leaning, bringing the agency into politicized editorial disputes. Carr has made no secret of his desire to use the FCC to punish media outlets and corporations that he believes have contributed to the “erosion in public trust.”
In some cases, the courts do eventually step in and repudiate these assaults on the First Amendment, but the deliberate chilling effect remains all the same, an ongoing threat hanging over every major institution.
Consider, too, how U.S. media hesitated to report on Elon Musk’s apparent Nazi salute at a post-inauguration rally for Trump. German and Israeli outlets did not shy away from describing the incident as it appeared, yet many of their American counterparts tread more carefully. No matter how baseless, a lawsuit from Musk can cost millions of dollars to defend. The culture of risk aversion, compounded by legal threats and official intimidation, has narrowed the bounds of permissible discourse here, in the nation that is supposed to have the strongest free speech protections in the world.
What makes these actions particularly perverse is how they are often cloaked in the language of defending free speech. Musk’s rhetoric about combating the “woke mind virus” and DeSantis’ attacks on so-called woke corporations both claim to champion free expression while doing the opposite. This weaponization of free speech rhetoric is both cynical and dangerous, undermining the very principle it purports to defend, while seeking to rob their opponents of the language needed to accurately describe it. This war on free speech is not primarily about silencing individual critics directly. There is no secret police hauling people off for mean tweets about Trump, Musk and their unified control over the federal government. It’s about leveraging institutional risk aversion to create a chilling effect. Journalists, pollsters and watchdog organizations may still criticize powerful figures like Musk or Trump, but they do so under the constant threat of financial ruin. The goal is to make accountability so costly that fewer people are willing to try. What’s urgently needed are robust anti-SLAPP laws, both at the federal level and in states where protections are still weak or nonexistent. Anti-SLAPP laws allow defendants to quickly dismiss lawsuits that are filed with the primary intent of suppressing speech, with legal fees automatically awarded (often with some multiplier) to the defendants. Crucially, they shift the burden of costs onto the plaintiff, deterring frivolous lawsuits and protecting critics from devastating expenses. The free speech crisis hiding in plain sight is about whether institutions can withstand the pressure to self-censor in the face of legal and political intimidation. The broader legal context also underscores the stakes. Some figures, including Justice Clarence Thomas, have expressed interest in revisiting New York Times Co. v. Sullivan, the landmark Supreme Court case that established strong protections for speech about public figures. Undermining Sullivan would open the floodgates to even more defamation claims, further chilling speech. Anti-SLAPP laws are a critical counterweight to these trends, ensuring that free expression remains protected even as legal challenges multiply. But legal reforms alone are not enough. We must also recognize and call out these attacks for what they are: a coordinated censorship campaign. Whether through SLAPPs, state retaliation or regulatory threats, these actions aim to undermine the First Amendment by making the cost of speaking out intolerably high. They are not isolated incidents but part of a broader war on free speech, waged in the name of consolidating unchallenged political power. The free speech crisis hiding in plain sight isn’t about whether individuals can ever criticize powerful figures — it’s about whether institutions can withstand the pressure to self-censor in the face of legal and political intimidation. Without robust protections like anti-SLAPP laws and a renewed cultural commitment to defending open discourse, the chilling effect will only grow stronger, leaving what’s left of American democracy poorer for it. Free speech has always been a contested principle, but its survival depends on our ability to see through the hypocrisy of those who claim to defend it while working to suppress it. The fight against censorship is not just a legal battle. It’s a fight to preserve the foundation of a free and open society.
Andy Craig
Andy Craig is a fellow at the Institute for Humane Studies. 
