Abstract
On the day he was sworn in for a second term, President Donald Trump issued pardons and commutations to all of his supporters who attacked the U.S. Capitol on January 6, 2021. This sweeping act of clemency gave legal effect to a longstanding grievance: since the attack, which disrupted congressional certification of his 2020 election defeat, President Trump has consistently glorified the attackers and denounced their prosecutors. In defending the clemencies two days after issuing them, President Trump reiterated familiar themes. Once more he refused to acknowledge that he lost the 2020 election, celebrated the patriotism of his supporters, and maligned those who pursued their accountability through what became the largest FBI investigation in U.S. history.
President Trump’s script was so familiar that it obscured a constitutional novelty. For most of the time between the January 6 attack and the subsequent clemencies, President Trump was not the president. He was a private citizen, and his speech about January 6 was protected by the First Amendment even to the extent that it was false or dangerous. But, by noon on January 20, 2025, he was once again President Trump—a government official, speaking on behalf of the government, and thus uttering government speech. Government speech is not protected by the First Amendment, but rather by an evolving set of rules fashioned by the U.S. Supreme Court known collectively as the government-speech doctrine. In an instant, his comments took on an entirely new constitutional cast.
Ordinarily, this transition would be unremarkable; it occurs whenever a private citizen assumes a governmental role. But, combined with their content, President Trump’s statements—on this subject and many others—create a serious First Amendment problem. His remarks are deeply and distinctly illiberal, calibrated to falsely undermine the democratic legitimacy of a previous administration and rewrite the history of an insurrectionist threat that would have allowed him to maintain power by violent and antidemocratic means. It is fascist speech, which invites wildly different constitutional analysis depending on its source.
Accordingly, this Essay introduces and evaluates the concept of fascist government speech—a category we can no longer afford to ignore. Our First Amendment free speech rights spring in substantial part from a commitment to self-governance, and the protections that follow generally extend to private fascist speech from a forceful commitment to free debate that courts and scholars have long believed would facilitate a robust democracy. By contrast, the justification for the government-speech doctrine is functional necessity, a recognition that our democratic selfgovernance would be rendered ineffective if the government could not spread its message. Fascist government speech thus directly undermines the basis for the government-speech doctrine. Yet the doctrine, as constituted, ultimately does protect fascist government speech. Worse still, the doctrine operates to preclude private free speech claims, a result that is distinctly perverse when the preclusion functions to amplify fascist government speech. Th is Essay therefore argues for signifi cant revision to the government-speech doctrine to blunt the threat of fascist government speech.
