A Free Speech Shakedown—Trump’s Approach to American Civil Society 

“I’m gonna make him an offer he can’t refuse.” So says Vito Corleone, played by Marlon Brando, in The Godfather. But it might also serve as the motto for Donald Trump’s approach to American civil society. The self-proclaimed artist of the deal has exploited the power of the federal government like never before to shake down his critics. And in doing so, he has revealed a critical vulnerability in some of the most important institutions in our democratic polity. Federal support has been critical to the growth of American civil society, but in Trump’s hands, that support has become a lever to exercise extralegal control.

Civil society—the nongovernmental institutions through which individuals come together to advance mutual interests—is essential to a vibrant democracy. When one looks around the world, virtually every country has a constitution that looks as good on paper as ours. But in many instances, those constitutions exist only on paper. One key difference is the strength of civil society. Where it is robust, as it has traditionally been in the United States, civil society plays an important part in safeguarding rights and checking abuses of power. Understanding that, the framers designed the First Amendment to protect civil society from government control. It guarantees the right to dissent from the federal government’s views, to associate with like-minded others to advance one’s own views, to report on government misconduct, to protest in the streets, and to file legal actions seeking redress of grievances. And thanks in no small part to federal support of civil society, through grants, subsidies, tax breaks, and the like, the United States almost certainly has as powerful a civil society sector as any nation. It should be a source of national pride; it is a central element of America’s strength.

But the very federal support that has been instrumental in the growth of civil society can be exploited to further unconstitutional ends. The signs are all around us. In recent days, Columbia and Brown universities have agreed to pay millions of dollars to settle disputes with the Trump administration. Columbia is paying $221 million, and Brown $50 million—despite the absence of any credible evidence that either institution engaged in any legal wrongdoing, much less any violations that would warrant even a fraction of those amounts. The Trump administration loosely charges them (and many other colleges) with inadequate responses to antisemitism on their campuses, but most of what it points to is merely impassioned criticism of Israel’s slaughter and starvation of tens of thousands of Gazans. Even if some of those protests veered into antisemitism, the universities would be legally responsible only if they were “deliberately indifferent” to specific acts of discrimination, an extremely difficult standard to prove—and one that is not even arguably supported in either case. Both universities also agreed to bar transgender women from women’s sports, a rule that no law requires. What drove these agreements was not law but coercion. Both universities get billions of dollars in federal funding, much of it for scientific research, and they worried that if they didn’t “pay up,” they would stand to lose those funds.

Trump’s targeting of law firms was equally baseless and unconstitutional—as every judge has ruled in the four instances in which firms challenged his actions in court. Trump’s executive orders made plain that he acted against the firms because he disapproved of some of the lawsuits they filed and some of the lawyers they hired. He ordered the federal government not to do business with the firms, to deny their lawyers security clearances, and to deny them access to federal buildings, all forms of official support. But whom firms hire and what they sue about are not only none of Trump’s business; they constitute the exercise of constitutionally protected rights to petition for redress of grievances and to associate with others. Yet nine corporate law firms struck deals with Trump, collectively promising almost $1 billion in pro bono support for causes Trump supports; again, a “remedy” Trump had no legal authority to demand. The firms settled not because Trump had the law on his side but because access to federal buildings and clearances is essential for their work, and they feared the loss of private clients if they fought. Many of their business clients need approval from the federal government’s regulatory agencies for their ventures, from drug approval to authorization of mergers. Here, again, Trump was able to extort hundreds of millions of dollars from major civil society institutions, not because the law provided for it but because of fear that he would engage in further retribution if the targets did not pay.

The same is true of CBS, which took multiple steps to placate Trump in recent months, again not because it was legally obligated to do so but because it feared illegal retribution by the Trump administration in connection with a request by its parent company, Paramount, to merge with Skydance. It paid $16 million to settle an entirely baseless lawsuit filed by Trump against 60 Minutes for its editing of a 2020 interview with then vice-presidential candidate Kamala Harris. It fired Stephen Colbert, an outspoken Trump critic. And Skydance promised to provide “unbiased news,” appoint an ombudsperson to oversee that pledge, and end its DEI initiatives. Here, again, the law not only did not authorize the Trump administration to demand any of this. Yet CBS, Paramount, and Skydance caved to the president’s will out of concern that he would abuse his federal regulatory authority and deny the merger.

These actions reveal a critical vulnerability in civil society’s constitutional armor. When institutions are heavily dependent on federal support—whether federal dollars for scientific research or federal approval of business transactions—an unethical president can threaten to withhold support if he doesn’t get his way. Trump has done just that, time and again. And it’s working. He has compromised the independence of civil society—or perhaps more accurately, exploited its dependence.

As a constitutional matter, Trump could not legally punish universities for being too liberal, law firms for filing lawsuits challenging the government, or press outlets for criticizing the president. Under well-established First Amendment doctrine, he also cannot use government funding, or government benefits of any kind, including access to government buildings or federal approval of business initiatives, to condition a recipient’s speech, as he has done with the universities, law firms, and CBS. But like the leader of an organized crime ring, Trump has exploited the dependence of others to get what the law does not authorize and indeed forbids. Where institutions are willing to risk challenging his actions in court, they can win—as four law firms and Harvard have already shown. But it can be difficult to prove the full scope of retaliation, and the costs of fighting can be astronomical. Preserving civil society, and ending Trump’s extortion racket, will require not only courageous institutions, and courts willing to block the unconstitutional use of federal support to achieve unlawful ends. It will take the political opposition of us all.

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