What Happens When Political Dissent Is Suppressed?

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Audio: Police: Sir, sir, hands up, hands up.

Audio: Senator Alex Padilla: I'm Senator Alex Padilla. I have questions for the secretary.

Simone Leeper: A lot of recent political videos make for a hard watch. One of them is the June 2025 arrest of California Senator Alex Padilla. He's in a Los Angeles office building at a crowded news conference where Kristi Noem, then the head of the US Department of Homeland Security is speaking. Two men shove the 6'4" senator out of the room into a hallway and onto his knees. They handcuff him. It all happens in under one minute.

Audio: Police: On the ground. On the ground. Hands behind your back.

Simone Leeper: Soon after, Padilla stood on the Senate floor to describe the episode.

Senator Alex Padilla: Before I could even get out my question, I was physically and aggressively forced out of the room, even as I repeatedly announced I was a United States senator and I had a question for the secretary. You've seen the video. I was pushed and pulled, struggled to maintain my balance. I was forced to the ground, first on my knees and then flat on my chest. And as I was handcuffed and marched down a hallway, repeatedly asking, " Why am I being detained?" Not once did they tell me why.

Simone Leeper: When a sitting senator or anyone is treated this way for merely trying to ask a question on behalf of his constituents during a press conference, that's a huge cause for concern. Senator Padilla was simply trying to exercise his right to free speech, a right protected by the First Amendment to the Constitution. But as we'll see later in this episode, it's a right that has been under attack recently. I'm Simone Leeper and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that can lead to a stronger, more transparent, accountable, and inclusive democracy. I work for Campaign Legal Center, a nonpartisan organization that for 25 years has been leading a campaign to solve the wide range of challenges facing American democracy. This season on Democracy Decoded, we're focusing on something that is at the very foundation of our country, but doesn't usually get the splashy headlines, the rule of law. When it works well, we hardly notice it. But when a presidential administration and its allies undermine or outright ignore this constitutionally enshrined cornerstone of our democracy, things start going sideways very quickly for Americans. The rule of law isn't just a legal principle, it's a safeguard. It protects the rights that define us as Americans, including as we will discuss in this episode, the freedom to speak out and express political dissent. Unfortunately, President Trump's second term has brought a wave of actions that challenge this basic principle. Today, our episode focuses on a pillar of the Constitution and the rule of law that allows us to even make this podcast. We're talking about the First Amendment and its protections for political dissent. This is one of our most cherished rights in America, but it's been under attack recently. What happened to Senator Padilla is only one of many incidents where someone's freedom to speak out has been curtailed, a trend that could have a chilling effect on others wanting to exercise their First Amendment rights. But before we get into all of that, let's take a step back to try to understand why the freedom to speak out is so important to us.

Robert Post: If you imagine that everybody agreed all the time, you wouldn't need a democracy. So democracy is a form of government in which a whole bunch of people who disagree with each other a whole lot and often don't like each other at all have to live together.

Simone Leeper: This is Robert Post. He's a law professor at Yale Law School who years ago clerked for Supreme Court Justice William J. Brennan Jr. Professor Post's philosophy on political dissent and democracy is that they are, in a word, inextricable.

Robert Post: So I have to live with somebody from a different political party than me. How do I live with them when I disagree with virtually all their policy prescription, with their values, et cetera? Well, I create a mechanism by which these differences can be reconciled and perhaps compromised, and that's through talking to each other, and reaching compromises, and understanding the point of view of the other and trying to meet each other halfway.

Simone Leeper: In politically divided times, it's easy to forget that the American system runs on trade- offs. Certainly the authors of our constitution didn't invent the concept of political compromise, but in Professor Post's view, the United States was founded at a special moment in history. Some crucial technologies allowed the founders to design a democracy that for the first time truly brought the public into those compromises.

Robert Post: Perhaps we should start with the Declaration of Independence. The Declaration is the product of a technological innovation, the invention of the printing press in the 15th century. It allowed people access to cheap reading. With the coming of the book, the printed word becomes available over time to just about everybody, literacy increases. And by the time newspapers get invented by the end of the 17th century and by the beginning of the 18th century, what you have is repeated circulation of news. And so what emerges in the beginning of the 18th century is something called the public sphere. The public sphere is the set of people who are exposed to these common circulating pamphlets and newspapers, books. And they're strangers to each other. This is a totally new social formation in the history of mankind. Now come back to the Declaration of Independence. What the Declaration of Independence is saying is we need to justify ourselves to the public sphere who are strangers to us, but whose judgment we accept.

Simone Leeper: Turns out the judgment of strangers is a big deal in a democracy. Free and fair elections mean that your ideas affect how your peers are governed, even if you've never met them, and in turn, their ideas affect how you are governed. Public opinion is high stakes.

Robert Post: We are subject to the judgment of people like us who are reading the things that we're reading. What the public sphere made possible is the control of the state, which had become very powerful by the end of the 18th century by politics. What we mean by politics is the contention of various parties to control and to influence public opinion. That's where a political process is. It's through words and communication, not through violence. And so what we now call a democracy, government by public opinion, is really made possible by the invention of printing, which leads to the public sphere, which leads to public opinion. So the colonists from the very beginning imagined their project and their goal was to make the state responsive to civil society through the political contestation in the public sphere for public opinion. And they made that very clear in 1791 when they ratified the First Amendment. That's the origins of the First Amendment, these social developments, these deep consequences of the technological innovation of the printing press.

Simone Leeper: The First Amendment protects five freedoms, and aside from the free exercise of religion, they all connect to public opinion. The First Amendment forbids Congress from passing laws that restrict freedoms of speech, the press, assembly, or petition of the government. All of these protections guard you from abuses of power. In other words, the First Amendment is chiefly about protecting your right to publicly disagree with whoever is in power. It protects dissent.

Robert Post: And what is dissent? Dissent is when the party that loses an election wants to talk in ways that bring the political opinion more in their point of view. That's the process that is constitutive of democracy. So in any democracy which requires heterogeneity in a population, there is always dissent and without dissent, there's no such thing as a democracy. There's only power which is being imposed on everybody else, and then that's the opposite of self- government. What makes it self- government is I can change the power and the only way I can do that is through dissent.

Danielle Lang: The right to political participation, to dissent, to a free exchange of ideas are the bedrock of any democracy. Elections don't happen in a vacuum. They happen in the context of a campaign in the context of political debates about how we should run our government.

Simone Leeper: This is Danielle Lang, a colleague of mine at Campaign Legal Center. As our vice president for voting rights and rule of law at Campaign Legal Center, she oversees our work on behalf of fair elections, the right to vote, access to the ballot, and the rule of law.

Danielle Lang: If we had to cast votes in a vacuum without that debate, we would be uninformed. We would be unable to make intelligent decisions about who will best represent us going forward. We'd be unable to understand who is promising change and who is promising more of the same. We'd be unable to form coalitions, to understand where do we as voters have common ground and where can we come together to push back against something that we don't like that's happening in our government. All of that coalition building, all of that free exchange of ideas, debate, persuasion all happens in the public sphere, and it all informs how our elections play out and who gets elected. And so if we were to quash that political dissent, even a little bit, even mute it, we're really changing the formula for our democracy. That's what we would say is happening sometimes in other countries where they technically have elections, but that debate is not as vibrant. Americans would typically look at that and say, " That's not a full democracy." To retain that kind of full sense of our democracy, that vibrant debate has to be behind it.

Robert Post: It's very interesting to think about the relationship between freedom of speech and democracy.

Simone Leeper: Once again, Professor Post.

Robert Post: If you ask most people what a democracy is, they'll say it's the kind of government that requires elections and in which majorities rule. But there are elections in North Korea, and majorities almost always rule, and you wouldn't call it a democracy. So when we think about what a democracy is, we're not talking about mechanisms of decision- making. I think most people would say a democracy is about self- government. I'm governing myself. But how do we govern ourselves? We have elections and if I lose the election 52 48, how am I governing myself? I've just lost. In what sense am I governing myself? So it turns out that neither majoritarianism nor elections do that work. The work is even though I lost the election, I nevertheless experience myself as governing myself because I could win the next election. How could I win the next election? By convincing other people that they're wrong and they should have voted with me. So what I'm identifying with, if I'm really precise about it, are forms of communication which allow me to affect public opinion, which in turn affects how people vote.

Simone Leeper: This point by Professor Post is vital to understanding how the American system should work. Winners of elections get to govern, they feel democratically represented, but if your side loses an election, you still get to argue with or critique those in government, and that is also democracy.

Robert Post: When you see it that way, you see that the essence of a democracy is really this free communication that allows me always to be in the game, and that give the election a certain meaning, namely it reflects what people are actually thinking, public opinion, and allows that to be perpetually open. That's what freedom of speech does. The responsiveness of government is to an election, but even more fundamentally, it's to what people want, the will of the people. And a word for that, the way in which we know what that is is public opinion. So freedom of speech is technically the freedom to participate in the formation of public opinion to the end that the government could be responsive, and that we each can believe by participating in the formation of public opinion, we have made the government potentially responsive to us. And so many theorists have said, when you get down to essentials, a democracy is government by public opinion.

Danielle Lang: We cannot have a functional democracy if we don't have political freedoms, and that is what the First Amendment protects.

Simone Leeper: Danielle Lang of Campaign Legal Center.

Danielle Lang: Elections won't work well if we can't have a free competition of ideas, if people don't feel free to advocate for their preferred candidate, or a candidate doesn't feel free to come forward with their political positions and their opposition to those who are currently in power. That's absolutely central, not only to the rule of law, but especially to a functioning democracy.

Simone Leeper: We called this show Democracy Decoded, and in broad terms, I think Danielle and Professor Post have cracked an essential part of the code. Before the world had functional democracies, it was a more chaotic place. Powerful centralized states, often run by monarchs, got to exert raw power over subjects. Democracy replaced much of that violence with political discussion. In a functional democracy, the people in charge continually make their case to the public in hopes that the public will keep them in power. But when the people in charge use the power of the state to quell, or subvert, or distort, or outright punish those public arguments, something else is taking place. They are impeding people's ability to participate in self- government. And unfortunately, that brings us to the state of political dissent since January of 2025.

Danielle Lang: We are in a new and strange era when it comes to questions of political freedom and political speech.

Simone Leeper: Danielle Lang.

Danielle Lang: Maybe I'll start with the good news first. Lots of Americans are speaking up. Lots of Americans are unhappy with what they're seeing in their country, and they are speaking up and speaking up loudly, whether that's showing up to protests, or speaking to their neighbors, or volunteering to participate in a campaign. Americans are stepping up to make their voices heard even when those voices are dissenting voices from those who are in political power. On the other hand, we are also seeing unprecedented actions, particularly at the federal level, but also at the state level, attempting to quash that political dissent, attempting to create kind of costs for Americans if they engage in political dissent.

Simone Leeper: At Campaign Legal Center, we watched as the Trump administration has made rapid aggressive changes to the American system. We've also watched administration officials attack people who inevitably voice their objections or merely ask questions about often radical and even lawless actions.

Donald Trump: If there's any protestor who wants to come out, they will be met with very big force. By the way, for those people that want to protest, they're going to be met with very big force.

Danielle Lang: Americans see regularly ways in which the Trump administration has sought to weaponize the Department of Justice and other agencies to attack political opponents. And that sends a message not only to those specific political opponents, but to anyone who's going to oppose the administration, that if they get on the radar of the administration as somebody who imposes some political cost, that they could be subject to retaliation. And I think that that's just as powerful, if not a more powerful way of attacking First Amendment speech, is to make everyone feel just a little uncomfortable, a little fearful that their dissent might lead to repercussions down the road from the very powerful federal government.

Robert Post: I would say this administration has shown a decided tendency to ignore First Amendment rights in many, many different dimensions.

Simone Leeper: Once again, Professor Post.

Robert Post: You can see it in the way in which it's imposing on universities. We want you to teach in a certain way or we're going to threaten you. We're going to threaten you by bringing Title VI or Title IX investigations. We're going to threaten you by withholding grants or visas for your students, et cetera, blatant efforts to compel speech. Same with the speech of law firms. They want to represent certain clients and the Trump administration very early on said, we're not going to let you do that or you can't walk into a federal courthouse.

Simone Leeper: The attacks on law firms are one of four key areas in which Campaign Legal Center has clocked and stood up against aggressive attacks by the Trump administration. Danielle will explain further.

Danielle Lang: Folks might recall that the beginning of the Trump administration, there were a number of executive orders specifically attacking law firms and seeking to impose a lot of costs on law firms that were disfavored by the president for one reason or another, and to say that those law firms would no longer be able to work with the federal government and impose other similar costs on those law firms. This caused a firestorm in the legal community. Several law firms in the immediate aftermath of those executive orders actually cut preemptive deals with the Trump administration, perhaps agreed to do whatever the Trump administration wanted and not what their legal ethics or their client demands would've otherwise required of them.

Simone Leeper: The Trump administration called out seven major law firms in unprecedented executive orders and memos. While many of them fought back legally, the president has ultimately shaken down these targeted firms for nearly a billion dollars worth of pro bono work among other concessions.

Danielle Lang: This was a real threat to the rule of law and in fact to the lawyers who enforced the rule of law on a regular basis. What was particularly notable was which firms were attacked by the Trump administration in those early days. Perkins Coie was one of those law firms that was attacked, as was Jenner & Block. These are law firms that have been very involved in not only actions that President Trump perhaps didn't like, but more generally in protecting voting rights and being involved in voting rights litigation. And they appear to have been attacked specifically for their role in protecting the integrity of our elections and protecting voters. So it was particularly important to Campaign Legal Center to be at the forefront of responding to these executive orders. While some law firms folded to President Trump's demands, many others fought back, including Perkins Coie, and filed lawsuits under the First Amendment and other parts of the Constitution, and immediately put these orders on hold. Because they're plainly unlawful. They're plainly targeting these law firms because of their political stances, and that is intolerable under our US Constitution. Every firm that fought back won and stopped those orders, but the Trump administration has not stopped and has appealed those decisions. At the appellate stage, we added our voice to talk specifically about the democracy implications of orders like this, the ways in which it is trying to shut down legal opposition with respect to election administration and election litigation in particular, to make the playing field unlevel so that the president's allies have the power of political law firms behind them, but to kneecap the power of law firms that might respond to any election litigation by the president's allies.

Simone Leeper: A second key area in which Campaign Legal Center has stepped forward, to protect the First Amendment rights of people protesting ICE actions.

Danielle Lang: Since the early days of the Trump administration, Americans have been exercising their right to protest, their right to dissent, the right to push back on governmental policies and actions that they disagree with. We talk about this as a right to protest. It's also a right to constitutional observation, the right to kind of conduct accountability over our government, and that is what a lot of American citizens chose to do in response to aggressive ICE actions and actions by DHS on immigrant communities. And what we saw as a result of those concerted actions by American citizens was a really concerning response from the Department of Homeland Security. Instead of respecting the right of American citizens to both protest their actions, and to observe their actions, and conduct accountability, there has been consistent actions of retaliation against folks who are standing up for their constitutional rights, and standing up for their community members and for what they believe in. We have seen retaliation take a lot of different forms. We have seen retaliation in the form of excessive force, something that folks are certainly aware of from high profile instances in Minneapolis, but that have been occurring across the country. But there's also a lot of other insidious forms of retaliation that those who are protesting ICE have seen. One of our clients lost his TSA global entry after he had been put down in the system as somebody who was protesting ICE. You saw a lot of ICE officers threatening protestors or constitutional observers by saying, " We're going to put you in a database where you'll be labeled as a domestic terrorist." That is in and of itself retaliatory, even if that was a fictional database, which unfortunately it is not, that kind of threat is itself unconstitutional and an impermissible retaliation against folks for speaking their mind. And so we at Campaign Legal Center are proud to be representing common cause and its members as they stand up for their right to engage in constitutional observation, and protest against ICE, and to be free from retaliation for speaking their mind. This case is absolutely critical to making sure protestors know that when there are abuses of power from the federal government, it will be met with a legal response, and for protestors to know that they will be protected.

Simone Leeper: A third area in which we are trying to protect free speech from this administration's actions has to do with people applying to come to the US on visas.

Danielle Lang: The federal government has announced that it is going to start looking into or has started looking into the social media accounts of anybody who's applying for a visa to come to the United States, looking for kind of vague things about hostility towards citizens, the culture or government of the United States.

Simone Leeper: Danielle Lang once again.

Danielle Lang: And perhaps on first blush some folks might think, okay, maybe the US government should look at visa applicants, but I think that all Americans should kind of stand back and understand what that means. It means that we are empowering our governmental agencies to decide who can come to this country or not, depending on that subjective view of the federal government of that person's political views. That doesn't just hurt those visa applicants. It really hurts all of us because we pride ourselves as a nation of being a melting pot, of being a place of free speech and debate, of welcoming that debate on a global stage. And if we start sending the message that folks are only welcome to come here if they have one set of political views, we all lose out from that. So CLC immediately saw this action and saw the attempt to kind of screen visa applicants based on their political views to be something that was an affront to our democracy and a front to political participation broadly. And so we submitted freedom of information requests to the federal government asking to understand this policy better and how it was being implemented.

Simone Leeper: And finally, the fourth case in which Campaign Legal Center is holding the Trump administration to account for its attacks on free speech involves last year's government shutdown. Thousands of rank and file civil servants found they had been turned into mouthpieces for this administration's political battles.

Danielle Lang: During the 2025 government shutdown, the US Department of Education altered their employees' out of office reply email messages without their knowledge or consent at the behest of the Trump administration to include explicitly partisan language. And there was a lawsuit from the union that represented these employees bringing, among other things, First Amendment challenges. The government was essentially putting its voice and a partisan voice into the mouth of these federal employees who had every desire to keep their speech nonpartisan. In fact, that's a legal requirement that their language be nonpartisan under the Hatch Act. So we filed a brief in support of the employees. In doing so, we not only affirmed the First Amendment rights of federal employees, but also underscored for the court the importance of nonpartisan civil service in ensuring trust in our government and ensuring that nonpartisan civil service promotes civil servants' First Amendment rights in their private lives.

Simone Leeper: Fortunately, in this case, the district court agreed with Campaign Legal Center, emphasizing that nonpartisanship remains the bedrock of civil service, not only because it prevents corruption and ensures the efficacy of our government, but also because it safeguards the First Amendment rights of federal workers.

Robert Post: The form of politics which you're seeing out of Trump says we represent the will of the people. And if in point of fact, empirically that's not true, we're going to make it true because we're going to suppress those aspects of the people who aren't us. And by suppressing, I mean preventing them from speaking. So public opinion is dominated by my side.

Simone Leeper: Once again, Professor Post.

Robert Post: That is not democratic. That's anti- democratic. And the question is why people want to do that? Why don't they want to live together with the other side, disagree, but enough respect to respect the processes by which we learn to live with each other when we do disagree? Why have we lost that? And I'm not exactly sure why we have lost that, but I can tell you that unless we regain that, all the laws in the world won't make a difference.

Simone Leeper: Disagreement in the American system is sacred, and anyone who wants to see the rule of law survive needs to be ready to protect dissent.

Danielle Lang: The first thing we need to do to safeguard our democracy and our First Amendment rights is for Americans to not back down.

Simone Leeper: Danielle Lang once again.

Danielle Lang: We need Americans, and I really believe that they will, to keep showing up, to keep being politically engaged, to act unafraid, to stand in the power of their First Amendment rights and engage in the same political freedoms that they always have, including showing up on election day to vote and have their voices heard there. And then I think we need to have a serious conversation at the policy level about how can we make sure that our First Amendment rights have the most protections possible? What are new laws that Congress could pass to prevent weaponization of federal agencies against Americans purely based on their political views? What checks can we put in place to ensure that Americans will not be retaliated against because of their free speech? As the election continues to heat up, as these debates are raging, I think we are likely to see more actions from this administration trying to silence political engagement, trying to retaliate against political engagement. The most important thing is for Americans to understand their rights, understand that the administration does not have the right to silence voters or Americans, and to stand in those rights, and know that a group like Campaign Legal Center has their backs.

Simone Leeper: Standing up for what's right isn't always easy. Even harder is standing up for other people you think are wrong, but that's a vital part of the American system. For our democracy to endure, we have to stand up for everyone's right to hold the floor, to respectfully argue their perspective, and to confront government power. Senator Alex Padilla put it succinctly after his ordeal of being thrown out of that ICE press conference.

Senator Alex Padilla: It doesn't matter if you're a Republican, or a Democrat, or an independent. We all have a responsibility to speak up and to push back before it's too late. So I do encourage people to keep peacefully protesting. There's nothing more patriotic than to peacefully protest for your rights because no one will redeem America but Americans.

Simone Leeper: Next time on Democracy Decoded, we'll take a look at one of the Trump administration's most glaring abuses of power, issuing executive pardons to political allies and high dollar donors. Among our guests will be a former Justice Department official who headed the office of the Pardon Attorney and who saw up close this administration self- dealing with a vital function of justice. This season of Democracy Decoded is produced by JAR Podcast Solutions for Campaign Legal Center. Campaign Legal Center is a nonpartisan legal organization dedicated to solving the wide range of challenges facing American democracy. For a quarter- century, Campaign Legal Center has been leading a campaign for democracy in courtrooms and capitals across the country, a campaign for voting rights and fair representation, a campaign to hold our government and elected officials accountable, a campaign to limit the corrosive influence of big money in our elections, and a campaign for the rule of law so every American can participate meaningfully in the democratic process. Today, the threats to our democracy go beyond anything we could have imagined when we first opened our doors. During this pivotal time for our democracy, Campaign Legal Center needs support to continue to fight on behalf of the American people. Your tax- deductible donation directly funds our efforts to do just that. If you would like to support our work, visit campaignlegal.org and click on the donate button. Special thanks to our guests, Professor Robert Post and Danielle Lang. I'm your host, Simone Leeper. Thanks so much for listening. If you've learned something new today, find us on your podcast platform of choice and hit subscribe. You'll get updates as we release new episodes. Leading this production for Campaign Legal Center are Casey Atkins, multimedia manager, and Madeline Greenberg, communications associate. This podcast was produced by Sam Eifling, editing and mixing by Luke Batiot. Democracy Decoded is a member of the Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at democracygroup.org.