In this insightful discussion on the First Amendment, Ray Brescia sheds light on the complex relationship between free speech and the limits imposed by U.S. law. The examination reveals that while free speech is a cornerstone of American democracy, it is not without its boundaries.
By Ray Brescia, Associate Dean for Research and Intellectual Life, Albany Law School. Originally published at The Conversation
Imagine a protest occurring outside the funeral of a beloved political figure. In this scenario, some attendees hold signs proclaiming messages like “God Hates the USA/Thank God for 9/11,” “America is Doomed,” and “Don’t Pray for the USA.”
Regardless of their political beliefs, many Americans would likely find such demonstrations and slogans repugnant.
Yet, who maintains the right to express such views, no matter how offensive? The First Amendment.
This description mirrors a real protest, although it did not occur at a political leader’s funeral. Instead, members of the Westboro Baptist Church protested outside the funeral of Marine Lance Cpl. Matthew Snyder, an American service member who lost his life in Iraq.
Through such demonstrations, members of this group expressed their conviction that the U.S. is excessively tolerant of those they deem sinful, especially individuals from the LGBTQ community. They further believe that the deaths of U.S. soldiers serve as divine retribution for such perceived sinfulness.
Snyder’s family took legal action against the church for intentional infliction of emotional distress, among other claims. A jury awarded the family $5 million, but nearly unanimously, the U.S. Supreme Court ruled in 2011 that the First Amendment protected the protesters from such legal recompense.
The Trump administration pledged to combat what it termed hate speech. It designated antifa, a loosely organized anti-fascist group, as a terrorist organization. The administration sought to punish public figures like television host Jimmy Kimmel for making statements critical of conservative activists.
What’s clear about the First Amendment is that it safeguards the rights of speakers, even when their opinions are unpopular. The Supreme Court articulated this principle in another ruling, stating, “The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”
However, free speech has its limits. From my experience as a legal scholar, I understand that the government can impose regulations on speech through what are known as “reasonable time, place, and manner” restrictions. These regulations must not be influenced by the content of the speech or expressive conduct in which individuals engage, though.
For example, while the government may prohibit campfires in wildfire-prone regions, it would be unconstitutional to ban the burning of the U.S. flag solely as a form of political expression.
Protected and Unprotected Speech
Certain types of speech do not receive First Amendment protection. This encompasses incitement to violence, obscenity, defamation, and what are classified as “true threats.”
For instance, if someone makes threats on social media with utter disregard for whether such actions instill genuine fear, those posts do not qualify as protected speech. Similarly, burning a cross on someone’s property to instill terror and inflict fear of harm also constitutes a true threat.
Some illegal actions are prosecuted as “hate crimes,” which involve criminal acts motivated by discriminatory animus. In these instances, it is typically not the beliefs of the perpetrator that are penalized, but the act itself, particularly when someone commits a violent crime against a victim based on their race or religion. Such motivations may increase the severity of the penalties for the base crime.
Speech that receives the highest level of protection under the First Amendment is that which challenges government policies and authority. As the Supreme Court declared in 1966, “There is practically universal agreement that a major purpose of (the First) Amendment was to protect the free discussion of governmental affairs.”
As the late Justice Antonin Scalia articulated in 2003, “The right to criticize the government” lies at “the heart of what the First Amendment is meant to protect.”
Restrictions on Government Action
The First Amendment restricts the government from directly inhibiting speech. For instance, it cannot prevent the publication of materials that criticize its actions, as demonstrated in the Pentagon Papers case, where the Supreme Court determined that the government could not bar newspapers from printing a leaked study outlining U.S. military involvement in Vietnam.
This principle applies even in cases of indirect governmental action, such as when there are threats to investigate media companies or cut funding to universities based on their political stances.
In 2024, the Supreme Court unanimously ruled that New York’s attempts to punish companies for their associations with the National Rifle Association due to its political stance violated the group’s First Amendment rights.
Similarly, recent court rulings have overturned efforts by the Trump administration to penalize law firms or to withhold funding from Harvard University.
Recently, a federal court in Florida dismissed a lawsuit filed by President Trump against The New York Times, seeking $15 billion for alleged damage to his investments and reputation.
Still, there are concerns about potential government retaliation for dissenting against the administration. Some organizations, like ABC, have preemptively restricted speech, such as briefly removing Kimmel from the air following his remarks on conservative figures in light of Charlie Kirk’s death.
Prior to Kimmel’s suspension, Federal Communications Commission Chairman Brendan Carr commented on his discussions with ABC’s parent company, Disney, regarding actions against Kimmel, stating, “We could do this the easy way or the hard way.” Trump also indicated that certain media companies could “lose their licenses” for criticizing him. Fortunately, ABC later decided to reinstate Kimmel’s show after his brief suspension.
The First Amendment protects speech across the political spectrum, including expressions disliked by many. Notable figures such as liberal comedian Jon Stewart and conservative commentator Tucker Carlson recently expressed a common understanding of this. Carlson emphasized, “If they can tell you what to say, they’re telling you what to think. … There is nothing they can’t do to you because they don’t consider you human.”
In the case involving the NRA, the Supreme Court reiterated that even indirect government actions aimed at suppressing protected speech are unconstitutional. Given this ruling, efforts to silence criticism of any administration should raise significant alarms for all Americans, regardless of political affiliation.
