Will This Substack Get Me in Trouble?

How are you feeling about the First Amendment these days?

Earlier today, I recorded an episode of DSR’s Words Matter Podcast with my co-host and friend Norm Ornstein. Norm is a brilliant man, one of our leading experts on the Congress of the United States and a mensch of the first order. It is really a privilege to get to work with him and very therapeutic to be able to speak with him about the situation in which we currently find ourselves as a nation.

Norm said that he had just flown back from California. He travels a great deal but he said that this trip back was one of the first he could recall on which he was nervous about the flight. I’ve heard similar comments from others recently. The recent series of aviation accidents has people rattled and understandably so, especially as the administration lays off crucial air safety personnel despite the fact our air traffic control system was already dangerously understaffed.

That said, despite the crashes that have been in the news so often recently, the odds of your experiencing a plane crash are still extraordinarily low. Air travel is safe even if the Trump Administration is not doing what it should to make it as safe as it can be. And clearly, the fact that it remains safe by and large is no comfort to those who have lost loved ones or suffered due to recent fatal incidents.

On the other hand, other risks we face have grown substantially in the past several weeks as a result of actions by this administration. The odds that inflation will rise have gone up. The odds that the stock market is likely to suffer have also risen. So to the odds that recklessness or mistakes by the administration or their partners in the Congress will produce a government shutdown or payments crisis shaking confidence in our economy and/or in the dollar.

The odds that administration policies will encourage further Russian aggression in Europe have also risen. The odds that senior U.S. government officials are engaging in corruption are way up. The odds that Israel will take Trump policies as a sign that they can further abuse Palestinians perhaps by claiming more land in the West Bank or Gaza, perhaps through wanton violence are also measurably higher (although they were pretty high under the Biden Administration.)

The odds that the international system is weakened over the next several years by U.S. behavior are nearly 100 percent. Similarly, it is a near certainty that American influence will decline during the same period. Will innocent people be rounded up by overzealous immigration authorities or other innocents die due to irresponsible health care policies? Definitely.

Some of these shifts mimic things we have seen in the past due to political changes in the U.S. Others—like America’s about face on Russia or the likely negative consequences of out-of-control DOGE vendettas—are new and deeply disturbing.

In this latter category is another type of risk which has risen to a level I never imagined possible before in the United States: It is increasingly probable that Americans will be harassed, threatened, or penalized by our government because we levy criticism against our president or the administration.

Just this week, we have seen the representatives of the Justice Department assert that they will prosecute those who engage in political attacks against the administration. One member of Congress received a letter seeking to intimidate him because he dared criticize Elon Musk. Musk called a U.S. Senator, Adam Schiff, a criminal. The president’s immigration enforcer said that Alexandria Ocasio Cortez should be prosecuted for seeking to provide advice to immigrants about their rights.

Today, a man was confirmed to be the FBI Director who has promised openly and frequently that not only did he want to gut the FBI but that he wanted to use the tools of the state to go after those he perceived as enemies of the administration.

I have to be honest, just as Norm felt uncomfortable getting on a plane, I felt a twinge of unfamiliar discomfort as I sat down at my keyboard to begin writing this post. It occurred to me that sooner or later something I wrote, some fair criticism of the administration, some rant, some commentary, some ill-considered crack, some act of expressing my views could get me into trouble with our government.

I do not know what form the trouble might take. It could be a lawyers letter. It could be a knock on the door. It could be a social media threat from a government official. It could be some other form of government harassment.

But what I do know is that never before in my life here in the U.S. have I ever felt such apprehension about simply exercising my first amendment rights. Indeed, I have been in foreign countries with tough regimes and not felt the concern because I always felt that as an American, I was largely protected, felt my government would have my back even if I was expressing a view with which they did not agree.

Could something I or someone else said on one of our podcasts, get us put on some enemies list? Could it trigger some vigilante thug who operated with the tacit blessing of the government?

How far will this administration take their threats of suppressing divergent views? How far will the courts let them go?

Is free speech in America at risk?

Sadly, that is a rhetorical question. The answer is for all the reasons cited above, it is not only at risk, it is probably in great jeopardy than it has been at any time in our history. What is more, there are also signs that some within the administration and some of their supporters would like to strip away other protections that past court decisions have afforded (see New York Times Co. vs. Sullivan, for example).

I certainly do not feel that Trump or Pam Bondi or Ed Martin or Emil Bove or Kash Patel will protect my right to freely share my views as other U.S. administrations of both parties would have. And I recognize I’m a small potato and that there are many others of greater prominence and impact who have much much more to be worried about than do I.

Nonetheless, it has gotten to the point—if I may be honest—that I have had a conversation with my wife and my colleagues at work and raised the issue that if I and others among colleagues speak our minds it could have negative consequences. Those could be legal or they could be financial. I felt it was necessary to articulate and discuss my sense of the growing risk—a sense that many others I know also feel.

The consensus was we live in a time when truth matters and we must be willing to undertake risks—perhaps substantial ones—to articulate it and share it and fight for it. Indeed, as the risk of repression grows, the urgency that we challenge it grows too.

I’d be interested to know whether others among the readers of this Substack have felt the same concerns or whether they think I am overstating the threat. (I might be. Though I doubt it.)

But what I know for sure is this, my colleagues and I will act as though the protections we believe we have under the Constitution are as strong as they have ever been. We will take the risks. I think we all must—each of us in different ways—if we are to stop the encroachments we are seeing on the rule of law in this country, on our fundamental freedoms, on our values, on the stability and security of our institutions and on one another.

It is not often in the course of most lives that we are tested as we are likely to be tested in the next few years. It is therefore time, I think for a gut check for all of us. How we respond will determine whether the current threats ultimately calcify and crush vital elements of what has been our social contract or whether they can be rebuffed and members of the current administration suffer the same fate as most of history’s other bullies, thugs and would-be autocrats.