A second Donald Trump presidency could escalate existing threats to free speech and protest freedoms, legal experts and researchers warn. 

Experts cited Trump’s incendiary language, threats to use the justice department to indict political opponents and abuses of executive power, like pushing for the deployment of federal agents and National Guard troops to respond violently to Black Lives Matters protests in 2020. Trump has repeatedly threatened to direct the U.S. military to quell dissent in America, calling his political opposition “the enemy from within.”

“What was perhaps most concerning about the first Trump administration was the open and flagrant nature of the efforts his administration took to crack down on people that disagreed with Trump,” said John Langford, a lawyer focused on First Amendment issues at the research, advocacy and legal nonprofit Protect Democracy. “That is an ominous sign of dangerous democratic backsliding and the purest version of unlawful viewpoint discrimination.” 

Criticism of Trump has come from both sides of the aisle, including some of his former staffers and allies. His own former chief of staff John Kelly said that Trump “falls into the general definition of fascist,” and was backed by 13 former Trump administration officials.

The growing crackdown on protest freedoms in the U.S.—encouraged in some instances by oil and gas industry lobbying—is largely separate from the presidency and hinges more on state laws increasing the penalties for civil disobedience at fossil fuel facilities, corporate influence and patterns of retaliatory lawsuits targeting activists, including those advocating action on climate change. But Trump’s rhetoric could create an atmosphere that chills dissent, and some climate and environmental groups fear that a second Trump term would allow for tactics that further threaten freedoms of protest and dissent in the public sphere.

This year’s Supreme Court decision asserting that former presidents are entitled to absolute immunity from criminal prosecution for actions within their constitutional authority amplifies concerns about presidential overreach. 

“The stakes could not be clearer given the contrast between the choices,” said Charlie Cray, a senior research specialist at the environmental nonprofit Greenpeace. “The Supreme Court has essentially rubber stamped basically any power [Trump] might assert…we and the rest of the movement take this very, very seriously.”

Executive Overreach and Chilling of Dissent

In the summer and fall, the American Civil Liberties Union released two collections of memos analyzing potential impacts to civil liberties under both Trump and Harris presidencies, including a report detailing “gross abuses” of executive power during Trump’s first term, including what they described as “efforts to trample protest and dissent.” 

In the foreword to the memos, ACLU executive director Anthony Romero wrote that the ACLU does not endorse candidates but that the two prospective presidencies have drastic differences.

“A second Trump administration will be disastrous for our most fundamental rights and freedoms, while a Harris administration will bring a mix of challenges and opportunities that largely leaves these rights and freedoms intact,” Romero wrote.

The ACLU outlines three areas of potential abuse: deployment of military and federal law enforcement against protesters and press, politically motivated investigations of Trump’s opponents and surveillance.

Russell Vought, who served as the director of the Office of Management and Budget in the Trump administration, and other allies of the former president have suggested invoking the Insurrection Act, a vague law from 1792 that was last meaningfully updated more than 150 years ago, to deploy the military against domestic protesters and political opponents during a second Trump presidency. 

The act was last used in 1992 when George H.W. Bush called up the military to quell protests after the police beating of Rodney King. Joseph Nunn, a liberty and national security counsel at the Brennan Center for Justice, said that the language of the Insurrection Act is sweeping and lacks meaningful guardrails. 

“The Insurrection Act gives the president basically unlimited discretion to use the military as a domestic police force,” Nunn said. “[It] gives far too much power to the executive and that degree of discretion to use the military domestically is incompatible with a free society.”

In the long term, Nunn said that the use of the military to quell protests could lead to the degradation or collapse of civil institutions. 

“It’s a sort of shift in mindset where if you start solving every domestic problem or every protest by suppressing it or dispersing it with military force, then that starts to become the norm,” he said.

Ben Wizner, director of the ACLU’s Project on Speech, Privacy, and Technology and one of the report’s authors, said that although he thinks military deployment against domestic protest is unlikely, Trump’s unpredictability makes it important to consider all possible scenarios.

Trump’s first presidency could have been more extreme than it was, Wizner said, but “there were people in the administration who were sort of quietly defying his orders.” 

“If he has a more compliant administration this time, if it’s staffed with people who are not going to push back against the norm breaking, then we maybe need to get ready for scenarios that we didn’t see last time,” he said. 

SLAPP Suits and Legal Persecution

Environmental and climate defenders are also facing increased law enforcement and legal retaliations for protests and direct action tactics. Opponents of a controversial natural gas pipeline under construction in Virginia and West Virginia are currently battling large and costly civil lawsuits from Mountain Valley Pipeline, LLC, and activists in Atlanta with Stop Cop City—a grassroots movement opposing the construction of a new police training facility in the 381-acre Weelaunee Forest—have faced allegations of racketeering and domestic terrorism with severe personal, legal and financial consequences.

Greenpeace is currently facing a $300 million lawsuit brought by Energy Transfer, the company behind Dakota Access Pipeline, alleging that the environmental nonprofit incited disruptive protests at Standing Rock—where Native American communities encamped while attempting to halt construction of the pipeline they claimed threatened their water supply from the Missouri River. 

The company also claims the nonprofit fundraised under the guise of defending Indigenous rights and intentionally spread misinformation, among other allegations. Greenpeace denies the claims, maintaining that it supported the Indigenous-led peaceful resistance to the pipeline and calling the lawsuit an “abusive” attack on free speech. The case goes to court in February.

Critics are calling the lawsuit a SLAPP suit—a strategic lawsuit against public participation, meant to dissuade criticism and financially overburden opponents—and say the outcome of the case could lead to future freedoms or restrictions on advocacy and protest.

Wizner said that there’s a need for stronger anti-SLAPP protections, including a federal anti-SLAPP law, as well as a need for legal resources and lawyers who can defend protesters against those types of lawsuits.

“The biggest existing risks to protesters…are not that Trump is going to send the military after them, but that they’re going to be sued for a billion dollars by a company that doesn’t care if it wins or loses,” Wizner said. 

The Reporters Committee for Freedom of the Press reports that 34 states and the District of Columbia currently have anti-SLAPP laws. 

SLAPP suits are not dependent on who is in office, and anti-SLAPP legislation has received some bipartisan support. But activists raise concerns about close ties between business interests engaged in legal crackdowns on protesters, particularly the fossil fuel industry, and political candidates, including Trump.

Kelcy Warren, the executive chairman of Energy Transfer, who has said that pipeline protesters should be “removed from the gene pool,” has donated $5 million to Trump’s reelection campaign through the Turnout for America PAC and an additional $5 million to the Make America Great Again PAC, which supports Trump and other Republican candidates, according to Open Secrets. Open Secrets lists Energy Transfer as one of Trump’s top donors. Energy Transfer did not respond to a request for comment.

Trump critics say his track record of courting industry support and rolling back environmental regulations, along with his promises to quell dissent, make a dangerous combination for climate and environmental campaigners trying to advocate for action in the next four years, which scientists have identified as critical in the transition away from fossil fuels and other actions to slow climate change.

“There’s going to be a real attack on public health and environmental protections at the same time that you have this harnessing and weaponization of parts of the government against their critics,” Cray, of Greenpeace, said of a potential second Trump term.

Cray said that although the election does not directly impact Greenpeace’s case, the atmosphere of a Trump presidency could create further incentives for corporations to infringe on people’s rights. 

“With a Trump victory you kind of get this stance that companies can go on a rampage legally,” Cray said. “It’s part of the larger context we are operating in and the movement itself will be affected by.”

Critical Infrastructure and Threats to Anti-Fossil Fuel Advocacy 

Over the past decade, a number of states have passed or amended laws limiting protest freedoms through measures like broadening the definition of domestic terrorism or increasing penalties for civil disobedience or protest at “critical infrastructure” sites like oil and gas projects. Many of those critical infrastructure laws were modeled on proposals from the fossil fuel industry and its allies.

The International Center for Not-for-Profit Law has tracked legislation that restricts rights to peaceful assembly since 2017, during the Trump administration, finding that 45 states have considered anti-protest bills and 21 states have enacted a total of 49 anti-protest bills. Currently, 15 federal and 21 state proposals are pending.

The majority of the anti-protest bills tracked by the ICNL were introduced by GOP officials, and the future of such legislation could be influenced by the results of state elections.

In 2022, Climate Cabinet Education, a nonprofit that collects data on climate action, found that only about one-third of Democratic lawmakers who voted on bills restricting protests near pipelines voted in favor, compared with 96 percent of Republicans.

Nick Robinson, senior legal advisor at ICNL, noted that the organization observes that anti-protest bills are often proposed in response to social movements, referencing mobilizations for Black Lives Matter and against the Dakota Access Pipeline as two inflection points, along with recent campus protests in support of Palestine. 

Oklahoma representative Scott Biggs said in 2017 that Indigenous-led protests opposing the Dakota Access Pipeline were the “main reason” for his bill increasing the penalties for protests at “critical infrastructure,” including oil and gas facilities.

Oil companies have since lobbied across the country for similar legislation, building upon the Oklahoma bills and a model policy called the Critical Infrastructure Protection Act drafted by the American Legislative Exchange Council (ALEC), a corporate-interest funded think-tank. 

“The outsized influence of the fossil fuel industry at every level of government is absolutely a primary threat to human liberty, dignity, [and] safety,” said Russell Chisholm, an organizer fighting against the Mountain Valley Pipeline in Virginia and West Virginia.

The American Petroleum Institute, a trade association representing the U.S. oil and gas industry, did not comment on the industry’s influence on laws targeting protesters at oil and gas infrastructure projects.

Condemnation of nonviolent civil disobedience has come from both major parties, as has excessive policing. But the tactic of civil disobedience is core to social movements, particularly when activists see the laws they are breaking as unjust. 

“The public is looking at this ‘right way’ and ‘wrong way’ to protest argument, instead of saying there is an injustice happening here…and we’re speaking out about it,” Chisholm said.

Juan Mancias, tribal chairman of the Carrizo/Comecrudo Tribe of Texas, has been a vocal opponent of the liquified natural gas buildout on his people’s land in the Rio Grande Delta. He said that Texas’ critical infrastructure bill, passed in 2019, puts corporate priorities above the people and the land.

“Critical infrastructure to them is the whole idea of saying, ‘Hey, don’t mess up my wall, don’t mess up my drilling,” Mancias said. “Then I question them and say, critical infrastructure here is clean water, clean air, clean land.”

Bipartisan Threats to Protest Freedoms

Although most free speech experts and climate activists are much more worried about a second Trump presidency than a potential Harris presidency, some warn that presidents from both major parties have a tendency to infringe on first amendment freedoms. 

The ACLU’s memo on a potential Harris presidency argued that the Biden-Harris administration did not fulfill its civil rights responsibilities in certain areas, such as when it permitted some racial profiling practices and expanded certain government surveillance operations.

College campus protests against Israel prompted ire and law enforcement crackdown from both Democratic and Republican lawmakers, and civil liberties groups like the ACLU warned against  discrimination targeting protesters based on the views they were expressing and the dangers of escalated law enforcement on demonstrators.

Anti-BDS measures—bills and executive orders that oppose the movement to boycott, divest and sanction Israel for its human rights violations against Palestinians—have been enacted in both red states like Texas and blue ones like New York. And in recent years the anti-BDS playbook has been utilized by fossil fuel industry allies to target climate movements as well. In 2021, Texas state senator Phil King compared his sponsorship of a state bill requiring many businesses contracting with Texas to pledge not to boycott fossil fuels to the state’s 2017 law restricting boycotts of Israel. Civil liberties advocates have voiced concerns that the spread of anti-BDS legislation could be used against other movements, including those attempting to boycott the fossil fuel and firearms industries. 

Organizers opposing fossil fuel projects in their communities are frustrated with corporate influence on lawmakers across the political spectrum, identifying a systemic rather than partisan problem that puts politicians into the service of the oil and gas industry rather than the communities impacted by its polluting infrastructure. 

“They’re all getting money from fossil fuels, whether they’re Democrats or Republicans,” Mancias, the tribal chairman in Texas, said.

Chisholm, the organizer fighting the Mountain Valley Pipeline, said that although Trump presents a heightened danger and more potential for abuse of power, deference from lawmakers towards the fossil fuel industry has been constant regardless of who was in the White House.

“I think we would have a steeper hill to climb under a Trump administration,” Chisholm said. “But I don’t think doors are going to be thrown open” if Harris wins.