GeoLegal Weekly #58: Freedom of Speech…Just Watch What You Say
Hear that silence? That’s everything everyone wants to say about the political climate but is afraid to for fear of political retribution, legal counterattack or even deportation.
Before I dive in, I have book launch events for UNRULY next week in DC on the 18th, New York on the 20th and LA on the 23rd - reply here if you want an invite.
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More than half of registered voters and most geographical units of America supported the election of Donald Trump. Those voters will range from comfortable with to supportive of policies like tariffs, mass deportations and restricting athletic participation of transgender competitors. Though not a significant part of his campaign rhetoric, shrinking the government at such an aggressive clip is unlikely to raise many hackles.
But what about restrictions on freedom of speech?
Welcome to Unruly America, where your law firm can be targeted for representing a past government official. Where your Jesuit law school can be targeted for choosing to teach about inclusivity and your university will lose federal funding if it permits political protests that offend the mind police. Where deportation proceedings can begin for a legal permanent resident not for being charged with any crime but for being a leader in those protests.
This is Unruly America where the Washington Post op-ed pages are no longer for debate but for dogmatism. Where the LA Times seems to measure its comment pages through a lens of impact on the owner’s FDA drug approvals. Where the global public square is owned by a special government employee who has changed the algorithm such that my “for you” feed is first met with his own rantings and then complemented by racist, homophobic, xenophobic, anti-semitic, Islamophobic and highly partisan content that is definitely not “for me.”
In Unruly America, companies are silent because retribution is more likely than ever before – and likely to be more painful than ever before. Seriously, what publicly listed company thinks recession-threatening tariffs are a good policy prescription besides a few steel and aluminium makers? Very few. But compare outspokenness about potential corporate tax rate increases during the campaign to silence about equally damaging economic actions today. Companies seem poised to stoically take the stock price nosedive rather than risk speaking up and likely then being singled out. At least to a point.
America may still have freedom of speech: Just watch what you say. (A free copy of my new book UNRULY to the first person who names that rap album without googling.)
Self-Censorship
No doubt you have wanted to voice something in the past few weeks and held back. Perhaps you are an ardent Trump supporter but don’t want to alienate those that aren’t. Or you like Trump but don’t like some of these policies. Perhaps you don’t like the direction of the country but fear retaliation. Maybe you think your company should maintain or implement some new HR or supply chain policy that you know will contravene the administration’s preferences. Indeed as I write this—or any article—I am considering the possibility of personal fallout.
When we have our nightmares about losing freedom, we often have dreams of hard censorship. Of not being able to post online about your views of the world. Of asking your AI a controversial question and being told the answer doesn’t exist, or receiving disinformation (DeepSeek is a good example but GROK had a momentary flash of this too). Of having secret police kick down your door in the middle of the night for thought crimes.
For many reasons this framing of such fears is probably misguided. Partly this is because of US constitutional and social norms, though these are under as great a threat as ever in an unruly world. But also because self-censorship and accommodation will be too tempting, too effective, and, at least in the short term, too easy.
The stakes are high. In today’s digitally governed universe, self-censorship is a big concern. Any utterance you make can be amplified to the wrong people and you can find yourself on the bad list (as I wrote about a couple weeks ago).
Take DEI. For years, companies have made the argument that a diverse and inclusive workforce was good for business. Finding and promoting talented individuals who might not have otherwise been given a chance, would become a competitive advantage. Suddenly, though, these same companies have quietly canceled their DEI programs. Did DEI values or the data supporting that diversity improves decision-making change between January 19 and January 21? Probably not. Did DEI economics change? Well, yes, they did, at least in a way.
Putting aside the MBA theories on whether DEI programs are indeed good for business, having a DEI program was previously good for business in the sense that many customers with money liked to do business with companies that aligned with their own pro-DEI values; the smartest students with their DEI friendly values coming out of school wanted to work for companies that shared those values.
Today, the risk of being called out by the Trump Administration for DEI or wokeism is increasingly viewed as too high a price to pay. Government contracts would be at risk for some; regulatory enforcement for others; and for all, the risk of being left with no one in the administration to call should you ever need their help.
Changing some corporate policies or editorial policies is a relatively low bar to avoid the wrath of the US Government. For many prominent companies that celebrated diversity and specifically implemented DEI programs prior to Trump's electoral victory, their reversal has been swift and in some cases, dramatic. This is sad but shrewd, at least in the short term.
But self-censorship isn’t only driving the political wedge issue of DEI. The Jeff Bezos-owned Washington Post not only declined to endorse its presumed preferred candidate, Kamala Harris, its owner later imposed a directive that the editorial page only print op-eds that supported “personal liberties and free markets.” While the impact of this on the opinion page is not yet clear, the exodus of staff from the newspaper by those saying they are unwilling to engage in self-censorship is noteworthy. Trump’s fury for media organizations hostile to him is well documented and Bezos has larger interests than just the barely profitable Washington Post.
Other types of accommodation are even easier. The tech CEOs that flanked Donald Trump during his inauguration clearly understood that proximity and deference to the new president was likely to have business benefits. Or maybe more accurately, that failing to do so might have adverse consequences.
The Cost of Silence
Freedom is not free, and restricting freedom has costs. The US attracts talent and capital from around the world because of strong institutions, rule of law, and economic dynamism. Much of that dynamism comes from being willing to fail and start over. Or being comfortable taking a stand and being respected for your right to do so. When immigrants fear working in America because of scrutiny of their social media posts, they won’t come and we will miss out on their talent. When investors fear US companies may bear downside political wrath for stepping on a trap door, they will put their funds elsewhere.
And, of course, when we all self-censor, we end up being untrue with those that depend on us. I’ve written about the liar’s dividend from deepfakes; when there is a chill through free speech, the risk is good old fashioned fear turning into gaslighting each other.
Fighting Back Against the Unruliness
There are no foolproof approaches. But first you need to be honest with yourself about what your values are. I’ve advised that companies to “talk less and smile more”—meaning not to comment on every errant political story. That lesson is now well understood.
But you should still speak to your core values or else you may survive the moment and have nothing to left to stand for.
Try to figure out how to tie your viewpoints to economic logic and patriotism. In the old days, when the government launched an antitrust case against you, you would vociferously reject it. Today, that would just bring more pain. But what about arguing to the president that you need to be a certain scale to be a national champion? That will have some appeal.
It’s the same with economic logic. The more you can move away from culture wars toward economic imperatives, the better off you will be. Jamie Dimon of JP Morgan, for instance, has talked about cancelling “stupid sh-t” because he doesn’t “like wasted money in bureaucracy,” referring to certain DEI trainings. But at the same time he reaffirmed that “the bank’s fundamental approach toward Black, Hispanic and LGBTQ communities isn’t changing.” The company has no interest in alienating communities it has fought hard to win, and how it does that should be its own business.
Remember, too, that there’s safety in numbers. Industry groups are not just a way to lobby for fewer restrictions but also a way to make it safe to raise your own standards - especially when articulating your own climate or diversity initiatives feels dangerous. Last year, I dove deep in how the mining industry moves toward sustainability by moving in unison. Such strategies are even more important today.
One final point is to not forget Congress. Congress is not a meaningful vehicle of policy change (for now). However, control of Congress is a main feature of Trump’s unrestrained approach. As the months wear on, concern about midterm elections will start to matter. Finding Republican battleground Senators and Representatives who can urge Trump to slow down certain initiatives that may put the state in electoral jeopardy may be persuasive. The most compelling way to do so is to show that states which went heavily for Trump will also economically reel from the fallout of some of these policies. Companies putting Republican members of Congress on notice that economic damage they allow will be noted at mid-term time will focus their mind and perhaps strengthen their resolve to to try to moderate Trump. We’re not seeing this yet but as midterms approach this will matter more.
-SW and DB