Attorney Jeffrey Portnoy joins producer/host Coralie Chun Matayoshi to discuss the Trump administration’s challenge to First Amendment rights including freedom of speech (e.g. purging information about the accomplishments of women and minorities, dismantling the U.S. Department of Education), establishment clause/separation of church and state (e.g. teaching religion in the schools), and freedom of the press (e.g. expelling established news organizations from the Pentagon, controlling the White House press pool, funding cuts to PBS and NPR).
Jeff Portnoy is a partner in the Cades Schutte law firm. He has extensive litigation experience and taught media law at the UH Richardson School of law. He is a past President of the Hawaii State Bar Association and Hawaii Chapter of the Federal Bar Association, and we served on the UH Board of Regents together.
Q. Two years ago, we talked about book banning and trying to erase the history of women and minorities, and it was bad then. Now that President Trump is back in office, has his administration taken censorship to a new level?
Diversity, equity and inclusion (DEI) is being stamped out by the Trump administration through executive orders (e.g. 1/29/25 Ending Radical Indoctrination in K-12 Schooling) and funding cuts. Examples:
- Military academies stripped their libraries of hundreds of books that explored race, gender, and national identity. The Air Force temporarily removed a module about the all-Black Tuskegee Airmen from its basic training and courses on race and ethnicity were eliminated from the Naval Academy and West Point curriculums.
- 442nd Regimental Combat Team webpage was removed from the U.S. Army’s website as part of a broader effort to revise content related to Asian Americans and Pacific Islanders (AAPI) in the military and republished as a “Key Military Unit” which removed its specific racial context and the unit’s bravery and contributions in light of the injustices faced by Japanese Americans during World War II.
- The Navajo code talkers, MLB legend Jackie Robinson’s military service, and others were temporarily removed from the U.S. Arm’s website, eliminating anything that would recognize the contribution of people of color
- Dismantling the Institute of Museum and Library Services, reducing funding to libraries, and firing the Librarian of Congress.
- Withholding billions of dollars of funding from Harvard and other universities for using what it calls “racial preferences and stereotypes” in their educational programs and activities.
Q. President Trump signed an Executive Order to dismantle the Department of Education and return authority to state and local communities. If challenges to this executive order fail, what might some conservative states do?
Florida Governor Ron DeSantis’s Stop Woke Law already limits students and teachers from learning and talking about issues related to race and gender. The bill authorizes discussion of topics such as sexism, slavery, racial oppression, racial segregation, and racial discrimination, in an age-appropriate manner, and in such a way that does not indoctrinate or persuade students to a certain point of view that is inconsistent with the principles of individual freedom and bans the teaching of anything that made students in public schools feel “shamed because of their race.” Concepts that constitute unlawful discrimination include:
- That members of one race, color, national origin or sex are morally superior to members of another race, color, national origin or sex.
- A person by virtue of their race or sex, is inherently racist, sexist or oppressive.
- A person’s moral character or status as privileged or oppressed is determined by race, color, national origin or sex.
- A person, by virtue of their race, color, national origin or sex should be discriminated against or receive adverse treatment to achieve diversity, equity or inclusion.
- The bill also requires instruction, instructional materials, and professional development in public schools to adhere to principles of individual freedom outlined in the bill. Those principles include that no person is inherently racist, sexist, or oppressive just by virtue of his or her race or sex and meritocracy or hard work ethic are not racist but fundamental to the right to pursue success.
In order to put a positive spin on the history of slavery in this country by saying that slaves benefited from learning skills, akin to a workforce training program. Florida’s Department of Education approved a new curriculum for the African-American Studies program in public schools which instructs students on the personal benefit of slavery to Black people. “They’re probably going to show that some of the folks that eventually parlayed, you know, being a blacksmith into doing things later in life,” said DeSantis.
Florida is also targeting the LGBTQ community. The Parental Rights in Education Act also known as the “Don’t Say Gay” law was passed in 2022.
The law prohibits Florida public schools from having “classroom discussion” or giving “classroom instruction” about sexual orientation or gender identity from kindergarten through third grade. It also prohibits public schools from keeping information about a student’s sexual orientation or gender identity from their parents. If parents have personal objections to teachings in these areas, they can file a lawsuit and the public schools are required to pay for all the expenses of the lawsuits. In April 2023, the Florida Board of Education expanded the ban on teaching about sexual orientation or gender identity to all grades K-12 except in health or reproductive courses. A subsequent law passed in Florida requires that sex education classes teach that “sex is determined by biology and reproductive function at birth”, and that reproductive gender roles are “binary, stable, and unchangeable.” Legislatures in at least 20 other states have introduced Parental Rights in Education bills similar to Florida’s.
Moms for Liberty started with 3 Florida moms fighting Covid-19 restrictions in 2021. They advocate for school choice and the “fundamental rights of parents” to direct their children’s education. Republican Governor Ron DeSantis and the conservative Heritage Foundation have embraced this movement while others like the Southern Poverty Law Center call Moms for Liberty a racist anti-LGBTQ organization that spreads misinformation and aims to eradicate diverse and inclusive materials from school lesson plans. Moms for Liberty is seeking to take over school boards and influence school superintendent elections in multiple states. Oklahoma’s public schools are directed to teach the Bible. Louisiana passed a law requiring the Ten Commandments to be displayed in all public schools in the state, but a federal judge declared it unconstitutional. Arkansas passed a law that would have allowed criminal charges (carrying a penalty up to 1 year in jail) against librarians and booksellers for providing “harmful” material to minors, which was declared unconstitutionally overbroad and void for vagueness.
Q. In addition to freedom of speech, the First Amendment’s establishment clause guarantees freedom of religion through the separation of church and state. As conservative states push to teach Bible and eliminate LGBTQ education in public schools, they also want taxpayer dollars to support private religious schools. How likely is this to happen?
In 1786, the Virginia General Assembly’s passage of Thomas Jefferson’s Act for Establishing Religious was the first time in American history that a legislature renounced state religion, which set the stage for the First Amendment’s commitment to freedom of religion. For over 70 years, the U.S. Supreme Court has consistently held that direct funding of religion by government violates the First Amendment’s establishment clause. Most recently, the U.S. Supreme Court in St. Isidore of Seville Catholic Virtual School v. Drummond (May 2025) barred a private Catholic charter school in Oklahoma from joining the state’s publicly funded charter school program, which would have been the first government-funded religious charter school in the nation. But the decision was a 4-4 tie (Justice Amy Coney Barrett recused herself), with no written opinion which means it only applies to the Oklahoma case and has no impact on future cases regarding other charter schools around the country.
Q. Another important first amendment right is freedom of the press. How is the Trump administration affecting these rights?
The Trump administration has expelled established news organizations from the Pentagon, curtailed Associated Press access to events and taken control of the White House press pool, sidelining major media outlets and undermining the role of independent journalism in holding those in power accountable, and cut funding to Public Broadcast Service (PBS), National Public Radio (NPR), and Voice of America (independent international broadcasting network that by law has editorial independence from the government).
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.