Earlier this month, Congress held a dramatic hearing with the heads of three private corporations that manage important forums for public debate. Members of Congress criticized these leaders in the strongest possible terms for their alleged failure to stem harmful speech on their property. The White House weighed in the next day to denounce the leaders’ equivocal answers, and both the Biden administration and Congress have announced multiple investigations into whether these and other institutions have violated federal law by not cracking down on this speech.

The previous paragraph obviously describes the efforts by federal lawmakers to pressure university presidents to more aggressively police anti-Semitic speech on campus. But it could just as easily describe another recent pressure campaign—the one directed at social-media platforms. These companies’ CEOs, too, have been hauled before Congress to account for their speech rules, had their policies denounced by the White House, been threatened with legal liability, and had private communications with government employees about what speech they allow on their platforms.

Despite these similarities, the two pressure campaigns have been received very differently. The Biden administration’s effort to influence social-media platforms’ content policies sparked a vociferous outcry from Republican officials, culminating in a First Amendment lawsuit that is now before the Supreme Court. The pressure campaign over university speech policies, by contrast, has generated very little alarm about the First Amendment interests of either the schools or their students. This is a problem, because the threat of government interference with free speech is very real in both contexts.

[Genevieve Lakier: The great free-speech reversal]

For years, the Biden administration and Democrats in Congress have pressured social-media companies to stamp out COVID misinformation, election denialism, and other harmful speech on their platforms. And for nearly as long, a loose group of Republican lawmakers, conservative influencers, and COVID contrarians has insisted that this constitutes a kind of “censorship by surrogate” that violates the First Amendment. In 2022, two Republican state attorneys general filed a federal lawsuit seeking to block the administration from this sort of “jawboning.” A conservative panel of the Fifth Circuit Court of Appeals ruled in their favor. The Supreme Court paused the ruling from going into effect, but agreed to hear an appeal in the case this term.

The Fifth Circuit’s decision in Murthy v. Missouri (originally called Missouri v. Biden) is sloppy on both the facts and the law, but it nonetheless articulates an important principle: We should be wary of overbearing government pressure on private speech intermediaries. The government possesses a great deal of power to make life better or worse for the private companies that it regulates. And companies are, in this context, often quite responsive to even subtle governmental threats, promises, or acts of intimidation. The result is that, by holding public hearings, arranging private meetings, and threatening economic or legal consequences if they do not comply, officials may be able to pressure private companies into suppressing constitutionally protected speech. They may, in other words, be able to wield the power that in theory the First Amendment says they may not wield: the power to decide what views and voices can participate in public discourse.

The pressure campaign against universities raises the same constitutional issue. Yet some of its leaders are among the most vocal critics of the Biden administration’s relationship with social-media platforms. Representative Elise Stefanik—who has gone viral for her questioning of the university presidents at the hearing this month—has decried this “weaponization of the federal government.” She joined with 11 other Republican members of Congress in an amicus brief on behalf of the challengers in the case, calling for an end to such “government meddling” in the marketplace of ideas.

In fact, the amount of pressure being wielded against universities may outstrip what social-media companies have faced. Despite constant threats, hearings, and proposed legislation, the platforms’ broad immunity from liability provided by Section 230 of the Communications Decency Act remains intact, and the prospect of legislative reform remains as elusive as ever. Contrast this with the very immediate threat of legal liability for universities under Title VI of the Civil Rights Act, which prohibits discrimination on the basis of shared ancestry or ethnic characteristics. The Department of Education has announced investigations into more than a dozen schools over whether they have violated Title VI by not cracking down sufficiently on anti-Semitic and Islamophobic speech. University officials have disclosed that DOE officials have also privately warned universities that they must act against specific controversial pro-Palestinian statements such as “From the river to the sea, Palestine will be free”—which, as many have noted, is in most contexts protected speech under the First Amendment. Members of Congress are working on a bill to strip schools of federal funding, and have agreed to a bipartisan resolution calling on Harvard’s and MIT’s presidents to resign. These are very serious threats for universities already facing immense pressure from donors and alumni to do more to restrict student speech.

You may not like what students are saying on campus, nor what the university presidents had to say about it during their congressional testimony. But the First Amendment is fundamentally concerned with how to treat speech that some people don’t like. At private institutions, university leaders, not government officials, ultimately get to decide what speech is permissible. At public universities, meanwhile, the broad protections of the First Amendment apply: political advocacy cannot be censored, no matter how controversial, intemperate, or even hateful. The Supreme Court has declared that “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” But while this freedom may exist on paper, the enormous pressure from government officials is likely to make it hard for schools—and, by extension, their students—to exercise it in practice.

Of course, universities must act to prevent discrimination and harassment on campus, and the Department of Education has a responsibility to enforce Title VI. But when the government suggests universities need to repress speech that does not satisfy the relatively narrow statutory definition of harassment or discrimination, that is a problem. A risk-averse university will have a powerful incentive to suppress constitutionally protected speech to avoid even the possibility of legal trouble. This is a particular concern with regard to the debate over the Israel-Hamas war, because a defining feature of this debate is profound contestation over the boundary between political critique and bigotry. The result will be, almost invariably, the repression not only of truly anti-Semitic speech but a great deal of controversial political rhetoric.

[Yascha Mounk: The universities that don’t understand academic freedom]

This is not just about three elite East Coast schools. For every Harvard, there are dozens of other universities whose leaders are no doubt thinking about how to avoid becoming the next target of public humiliation and governmental pressure. This already appears to be having a marked impact on schools’ speech policies. After the hearing, several universities took the opportunity to issue public statements, unprompted, that on their campuses, the kind of speech that drew Stefanik’s ire would not be permitted.

Government officials have free-speech rights too, of course. Indeed, their job often requires them to articulate their views on matters of public importance. But in exercising this right, officials must not threaten or coerce. Nor should they exploit mechanisms, such as closed-door meetings or opaque investigations, that are not subject to democratic oversight. Where to draw the line between government speech and illegitimate pressure can be an extremely hard question to answer. The Supreme Court will hopefully give more guidance when it decides Missouri v. Murthy this term. Just as not all governmental criticisms of social-media companies violate the First Amendment, neither do all governmental criticisms of university policies.

We should not let the intense political disagreements of this moment blind us to this fundamental organizing principle of the democratic public sphere: Although the government can offer criticism, it cannot be permitted to do an end run around the Constitution. If the First Amendment protects against anything, it protects against illegitimate government pressure to censor protected speech.

The Colorado Supreme Court has left the justices of the United States Supreme Court in the very uncomfortable position of having to prove that they have the courage of their stated convictions.

Yesterday, Colorado’s high court ruled in a 4–3 decision that former President Donald Trump, because of his attempts to overturn the results of the 2020 election, is disqualified from appearing on the ballot in Colorado, based on Section 3 of the Fourteenth Amendment of the U.S. Constitution. The language of that section, written in the aftermath of the Civil War to disqualify former Confederates who had taken up arms against the United States in defense of the institution of human bondage, is short and simple:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

There is no language limiting the power of the section to former Confederates, however, and its scope is sweeping, with no requirement that those engaged in the specified conduct be convicted. Indeed, given the number of people who served in the Confederate army and governments, such a requirement would have been impractical.  

[David Frum: The Colorado Supreme Court just gave Republicans a chance to save themselves]

The Colorado court weighed all of this in arriving at its decision. “We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us,” the justices in the majority wrote. “We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

In framing the stakes this way, the Colorado court is calling the bluff of the U.S. Supreme Court’s originalists, forcing its conservative justices to choose between their purported legal philosophy and the partisan interests of the party with which they identify. The ruling itself seems written with a consciously originalist interpretation, with an eye toward legitimizing its conclusions to the justices who will ultimately be compelled to deal with the case.

The possibility that Trump’s actions disqualified him from holding office again was explored in careful detail in August by the conservative legal scholars William Baude and Michael Stokes Paulsen. They wrote, “It would not be going too far to say that Trump, having previously sworn a constitutionally required oath to preserve, protect, and defend the Constitution of the United States knowingly attempted to execute what, had it succeeded, would have amounted to a political coup d’etat against the Constitution and its system of elections and overturn the results of the constitutional process, in order to maintain himself in office as President contrary to law.”

There are a lot of practical reasons for opposing Trump’s disqualification. One is that it removes the choice of rejecting Trump from the electorate, which might seem undemocratic, even if it’s done with constitutional provisions adopted by the people’s chosen representatives. Another is that it could damage the legitimacy of democracy itself, by appearing to confirm Trump’s allegations that the political system is “rigged” against him. Still another is that it could lead to unrest or political violence. It is not hard to imagine Republicans embracing the provision and using flimsy pretexts to disqualify opponents who did nothing reasonably defined as “insurrection or rebellion.” Even if Trump were disqualified from appearing on the ballot, there is no way to prevent people from writing in his name and, after a potential victory, forcing the courts to litigate the issue again, but with his opponents demanding that the courts overturn election results.

These are all compelling reasons to avoid or disregard this provision, notwithstanding its plain meaning and intent. A second rejection of Trump at the ballot box seems like the least destabilizing outcome. The problem for a majority of the justices on the Supreme Court is that they’re not supposed to care about any of this. They’re originalists, remember? They have repeatedly insisted that if you don’t like what the law or the Constitution says, then you should pass a law or amend the Constitution, but that their own hands are rightfully tied by the text and intentions of the Framers.  

“The text means what it says. Similarly, if the rule supplied by the objective meaning of the text runs right on past the specific historical purpose for which it was enacted and embraces as well other insurrectionists, rebels, and aiders and comforters of enemies, that rule must be given full legal effect as part of the Constitution,” Baude and Paulsen write. “The rule’s overbreadth in terms of its perceived purpose, and even its inconvenience as a consequence of such overbreadth, are beside the point.”

In theory, originalism is committed to interpreting the Constitution according to its original meaning as it was understood at the time of adoption. This should lead to legal outcomes that liberals prefer sometimes and outcomes that conservatives prefer other times. In practice, it has most frequently been an undead version of the supposed “living constitutionalism” it rejects, a method of rationalizing and using history to offer a patina of legitimacy to the preferred outcomes of the Republican Party or its key constituencies. This reality has become more and more clear to the public since conservatives on the Court obtained a 6–3 majority, and began to reshape society on the basis of right-wing whims and obsessions.

[Adam Serwer: The Constitution is whatever the right wing says it is]

Originalists are not supposed to rule based on the impact of their decisions, a tendency they derisively refer to as “results-oriented judging.” Instead, they are merely supposed to ensure that the law is implemented to the letter, as it was intended to be. Indeed, all of the self-identified originalists and strict constructionists in the conservative intelligentsia should be demanding this provision be enforced as written, damn the consequences. If these labels had any meaning for most of them, they would be.

The evidence that Trump engaged in the sort of conduct the Fourteenth Amendment was designed to address is overwhelming, as is the originalist case for its application. Every piece of information that has emerged in the aftermath of the Capitol riot on January 6 has clarified what appeared even then to be a premeditated attempt to overthrow constitutional government in the United States.

What we saw on the day itself was sufficient: Having tried to bully Republican secretaries of state not to certify the results of the 2020 election, to pressure Republican state legislatures to overturn those results, to appeal to the courts to keep him in power based on fraud accusations the Trump campaign knew to be baseless, to compel the Department of Justice to substantiate fictional examples of fraud as pretexts for overturning the election, and to coerce then–Vice President Mike Pence to reverse the results based on a crackpot legal theory, Trump tried to remain in power by force.

Trump called his supporters to Washington, D.C., to protest his loss and urge Congress to overturn the results—an illiberal act but one protected by the First Amendment—then directed his followers to the Capitol, telling them, “If you don’t fight like hell, you’re not going to have a country anymore.” Retreating to safety, Trump watched on television as the mob turned violent, and initially refused to call off the rioters despite entreaties from right-wing figures who would later defend both his actions and those of the mob. The Capitol itself was ransacked as legislators fled under the protection of the Capitol Police, who lacked the numbers to restore order until the National Guard arrived. Internal messages from the organizers and a never-posted draft tweet from Trump himself have since revealed that Trump intended to direct this mob to the Capitol, hoping to prevent the peaceful transfer of power to his lawfully elected opponent.

If any of this had succeeded, Trump’s quislings were planning to order the U.S. military to suppress its own citizens if they rose up in protest to defend their right to democratic self-determination.

Still, I do not expect the Supreme Court to allow states to disqualify Trump from the ballot, and I am skeptical that the political aftermath would be desirable even if they did. Trump has been impeached twice, both times for attempting to subvert elections. The first time, he sought to use his power as president to force Ukraine to implicate his Democratic then-rival Joe Biden in a nonexistent crime in exchange for U.S. aid, and was spared removal from office by Senate Republicans. The second time he was impeached, it was for attempting to remain in power by force, and he was again spared by Senate Republicans.

Despite their anonymous whispers disparaging Trump to sympathetic reporters, the GOP elite has never possessed the will to rid themselves of a man they recognize to pose a threat to democratic self-determination, either because they are enthusiastic supporters of Trump’s authoritarian project or because they are cowards. Whatever their reasons, they have repeatedly delegated that responsibility of defending the republic to the people. I do not expect a different outcome here.

To be in this position at all, between disqualification of a man running to hold the highest office of a government he tried to overthrow and the possibility that he might win again outright, implies that no happy ending can be had, regardless of the path chosen.

The former president has been removed from the Colorado presidential primary ballot in a historic ruling by the state's Supreme Court over his role in the January 2021 Capitol attack.

“The experience of being disastrously wrong is salutary,” John Kenneth Galbraith wrote. “No economist should be denied it, and not many are.”

I’m not an economist. But I was wrong about the litigation to bar Donald Trump from the ballot as an insurrectionist. I wrote in August that the project was a “fantasy.” Now, by a 4–3 vote, the Colorado Supreme Court has converted fantasy into at least temporary reality.

The Fourteenth Amendment provides that anyone who swore an oath to support the Constitution of the United States, and who then “engaged in insurrection or rebellion against the same,” is forbidden to hold any federal or state office unless pardoned by a vote of two-thirds of both houses of Congress.

I doubted that any contemporary court would apply this Civil War legacy to the politics of the 2020s. Colorado’s supreme court just did. Trump swore an oath to the United States when he entered the presidency in 2017. According to Colorado’s court, his actions leading up to the violent coup attempt of January 6, 2021, amounted to “engaging in” an insurrection. Therefore, the court ruled earlier today, Trump is disqualified from appearing on the Republican primary ballot in Colorado.

The Colorado decision is not the final word. The Colorado Supreme Court is the ultimate word only on Colorado law. In this case, however, the Colorado court is interpreting a federal constitutional amendment. Its decision can and will be appealed to the U.S. Supreme Court.

[J. Michael Luttig and Laurence H. Tribe: The Constitution prohibits Trump from ever being president again]

But the possibility of one more judicial appeal does not diminish the drama of what just happened—or the political potential.

The big winner from tonight’s decision is not President Joe Biden. The Colorado Supreme Court decision is not about the general election in November 2024. It’s about Colorado’s Republican primary. If the decision stands, the principal beneficiaries will be Trump’s Republican rivals, one of whom—Florida Governor Ron DeSantis, former New Jersey Governor Chris Christie, former South Carolina Governor Nikki Haley, or the entrepreneur Vivek Ramaswamy—will win Colorado’s delegates to the national Republican convention. If the decision is extended to other states, one of that roster will win those delegates too.

The U.S. Supreme Court now has the opportunity to offer Republicans an exit from their Trump predicament, in time to let some non-insurrectionist candidate win the Republican nomination and contest the presidency.

The Colorado court has invited the U.S. political system away from authoritarian disaster back to normal politics—back to a race where the Biden-Harris ticket faces more or less normal opponents, rather than an ex-president who openly yearns to be a dictator.

I personally didn’t expect such a possibility to open, and I worried about the risks that accompany this possibility. Will pro-Trump voters accept the legitimacy of court actions against their candidate? But the timing of this case mitigates the risk.

The Colorado Supreme Court harshly condemned Trump personally. It ruled him an insurrectionist, in effect a traitor. It joined his name to the roster of the Confederate rebels whom the authors of the Fourteenth Amendment wanted to ban from politics. And at the same time, that court offered emancipation from Trump to Trump’s party.

The polls seem to indicate that Americans’ preferences for 2024 stack up as follows: Trump will probably lose to Biden, but almost any other Republican would likely beat the current president. Until now, Trump supporters have been protecting Biden from his own weaknesses, by insisting on nominating an even weaker alternative. Republicans who want to win in 2024 were just delivered a big favor, if they will accept it: a state supreme court ruling that their weakest general-election candidate is disqualified from running in the primaries where his too-loyal base is not emoting, not thinking.

If upheld by the Supreme Court, the Colorado court’s decision might yet save the GOP from itself. Will the GOP consent to be rescued?

[Read: Trump’s threat to democracy is now systemic]

Since Trump made his comments about wanting to be a dictator for a day, some Republicans have argued that there’s nothing to fear, because the institutions will stop him: The military won’t obey the illegal orders Trump has said he’ll issue; the Department of Justice won’t prosecute the authoritarian cases Trump says he wants to bring. For those Republicans: Here’s your chance. The Colorado court has just granted you what should be your fondest wish, a clear path to the Republican nomination for a post-Trump candidate. Chris Christie, Nikki Haley, and even the boorish Ron DeSantis would all be more constitutional presidents than Donald Trump—and Haley especially would likely prove herself a more compelling candidate.

Until now, Trump’s Republican rivals have shown themselves too scared to fight and too weak to win. The question ahead: Are they too scared and too weak even when the win is presented to them by the courts? The immediate reaction of many of them was, as usual, to cower and truckle—to take Trump’s side against their own. This is their last exit; if they drive past, there will not be another before the primaries finish.

The present Supreme Court is highly attuned to the wishes of conservative America. If the conservative majority senses permission from Republicans to save Republicans from themselves, they might do it. If they sense a veto from Republicans, they may not. What is said and done in the next days and hours may matter a great deal. If Republicans want rescue, they must stop pretending they object.

Donald Trump ineligible to run for US president in Colorado, state's supreme court rules, citing insurrection clause