Alito, Thomas & Trump: How the Right Picks and Chooses Free Speech

The Right Loves Free Speech—Until You Use It.

Mar 10, 2025

Last week, the Supreme Court declined to hear a case challenging Indiana University’s bias-response program, a system allowing students to report perceived discrimination incidents. The case, brought by conservative students with the backing of Speech First, argued that such programs have a chilling effect on free speech, particularly right-wing voices.

At the same time, Donald Trump threatened to revoke federal funding for universities that allow student protests he deems "anti-American." His statement specifically targeted protests against his administration’s policies, making it clear that his version of “free speech” only applies to those who support him.

The irony is difficult to ignore: conservatives are crying free speech when it comes to protecting right-wing rhetoric on college campuses, yet the same movement is entirely silent—or actively hostile—when progressive speech is threatened.

Trump’s Hypocrisy on Free Speech

Trump regularly claims that his own free speech is under attack, yet he has repeatedly threatened speech he disagrees with.

He sued Twitter (now X) after being banned for inciting violence on January 6, claiming it was a violation of his free speech.
He called for strict regulations on social media companies because they allegedly “silence conservatives.”
He has openly said that protest movements (like Black Lives Matter and pro-Palestinian student protests) should be criminalized.

Now, Trump is actively threatening universities with funding cuts for allowing protests he dislikes. He isn’t defending free speech; he’s demanding ideological loyalty and punishing dissent.

This is not democracy. It’s not the First Amendment in action. It’s a power grab straight out of the authoritarian playbook.

See our reporting here on how Trump’s policies reflect the authoritarian playbook:

The Authoritarian Playbook is Open—And Trump is Reading It

Marie Riverton

February 5, 2025

Read full story

A Supreme Court That Picks and Chooses Its Free Speech Battles

While the Supreme Court refused to take up the Indiana University case, Justices Clarence Thomas and Samuel Alito dissented, signaling that they want a case like this in the future. Their concern? That bias-response teams could intimidate conservative students into silence.

Compare that to the silence from these justices when Trump threatens to punish universities for allowing speech he dislikes. Where are Thomas and Alito’s strong words about the chilling effect of federal overreach when it comes from a Republican president?

To see the hypocrisy clearly, let’s compare how Thomas and Alito have ruled on free speech depending on who speaks.

🟢 When Alito & Thomas Defend Free Speech (For Conservatives)

✅ Citizens United v. FEC (2010) – Corporate political spending was deemed protected speech under the First Amendment, unleashing unlimited money into elections. Alito and Thomas ruled that speech should not be restricted if it benefits the right.

✅ Religious speech cases – The Court has consistently ruled in favor of Christian student groups that want to exclude LGBTQ+ students from leadership positions. They argue that Christian speech must be protected, even when it leads to discrimination.

✅ Indiana University Bias-Response Case (2025) – Thomas & Alito wanted to take up the case, claiming that bias-response teams suppress free speech. When it’s conservatives on campus claiming suppression, they are eager to step in.

✅ Hypothetical future case – If a conservative student sued over being "silenced," the Court’s conservative majority would almost certainly rule in their favor, striking down DEI programs or campus speech codes.

🔴 When Alito & Thomas Oppose Free Speech (For Progressives)

❌ Occupy Wall Street protest cases (2011-2016) – After police violently cracked down on Occupy protests, multiple legal challenges were brought to the Supreme Court. Thomas and Alito refused to hear them, effectively endorsing mass arrests of left-wing protesters.

❌ Janus v. AFSCME (2018) – The Court ruled that public-sector workers cannot be forced to pay union dues, weakening labor unions under the guise of “free speech.” However, Alito and Thomas have never defended unions’ speech rights.

❌ Lozman v. City of Riviera Beach (2018) – A progressive activist was arrested at a city council meeting for criticizing corruption. The Court ruled that his speech should be protected, but Alito dissented, siding with government suppression of speech.

❌ Trump & Social Media Bans (2021-2023) – Thomas suggested government regulation of Twitter and Facebook when conservatives were banned. But when left-wing activists face deplatforming or government surveillance? Silence.

Do Thomas & Alito Ever Support Free Speech for Progressives? Rarely.

It’s worth noting that in a few cases, Thomas and Alito have supported broad First Amendment rights, such as striking down laws banning violent video games (Brown v. EMA) or animal cruelty videos (United States v. Stevens). However, these cases were not about progressive activism or protest but general speech rights that didn’t threaten conservative power.

When speech challenges entrenched conservative interests—student protests, labor organizing, or anti-government activism—their commitment to the First Amendment suddenly disappears.

Do you think free speech should mean all speech? Tell us in the comments.

The Future of Free Speech Under This Supreme Court

If a conservative speech case comes before this Court—say, a challenge to DEI programs or a case striking down campus bias-response teams—the conservative majority will likely rule in favor of free speech.

But if a progressive speech case arises—say, students protesting Trump’s policies or organizing for racial justice—we will likely see Alito, Thomas, and their allies suddenly decide that “order” on campus matters more than free expression.

This Court does not protect free speech; it protects power.

What Comes Next?

With Trump threatening universities and conservative justices waiting for the right case to gut progressive speech protections, the fight for free expression is far from over. The left cannot afford to be passive.

🔵 Universities must resist pressure from the Trump administration and defend their students’ right to protest.
🔵 Legal groups must challenge any attempt to defund schools based on political expression, just as conservatives have done with campus speech cases.
🔵 Progressives must push for consistent free speech protections, not just when it benefits their side.

Free speech should be a universal right, not a partisan weapon. And if we don’t fight for it now, we may wake up to find it has been lost.

See our reporting on Trump’s attacks on the free press here: