First Amendment Protection: How the US Constitution Limits Government Crackdowns on Controversial Speech

The Trump administration has declared its intention to clamp down on what it designates as hate speech.

Consider a scenario where protesters gather outside the funeral of a beloved political figure, some celebrating the death while displaying signs with messages like "God Hates the USA/Thank God for 9/11," "America is Doomed" and "Don't Pray for the USA."

Most Americans would likely find such demonstrations deeply offensive, regardless of their political affiliations.

Yet what would permit such distasteful activities? The First Amendment.

This scenario mirrors an actual protest, though not at a political figure's funeral. Members of the Westboro Baptist Church demonstrated outside the funeral of Marine Lance Cpl. Matthew Snyder, a serviceman killed in Iraq.

Through these demonstrations, this group expressed their belief that America is excessively tolerant toward those they consider sinners, particularly the LGBTQ community, and that U.S. soldiers' deaths represent divine punishment for such tolerance.

Snyder's family initiated legal action for intentional infliction of emotional distress and other claims. A jury awarded the deceased serviceman's family US $5 million. However, in a near-unanimous 2011 decision, the Supreme Court ruled that the First Amendment protected the protesters from such judgment.

This ruling offers particular insight today.

The Trump administration has pledged to suppress what it terms hate speech. It has designated antifa, a loosely organized anti-fascist movement, as a terrorist organization. Additionally, it has sought to penalize figures like TV host Jimmy Kimmel for statements perceived as critical of conservative activists.

The First Amendment clearly establishes that it protects speakers expressing views with which Americans disagree. As the Supreme Court stated in a decision issued one year after the funeral protesters case: "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."

Free speech, however, has limitations. As a legal scholar who has researched political movements, free speech, and privacy, I understand that government can regulate speech through "reasonable time, place, and manner" restrictions. These limitations cannot, however, depend on the content of the speech or expressive conduct.

For instance, government can prohibit campfires in wildfire-prone areas. But banning U.S. flag burning solely as political protest would constitute an unconstitutional speech restriction.

Certain speech categories lack First Amendment protection, including incitement to violence, obscenity, defamation, and "true threats."

When someone posts threats on social media with reckless disregard for whether they will instill legitimate fear, such posts aren't protected speech. Similarly, burning a cross on someone's property to instill terror and fear of bodily harm represents this kind of true threat.

There are also law violations sometimes prosecuted as "hate crimes" - criminal acts motivated by discrimination. In these cases, generally not the perpetrator's beliefs but their actions are punished when they engage in criminal conduct, such as physically assaulting someone based on race or religion. Such motives can increase punishment for the underlying criminal behavior.

Speech criticizing government policies and leaders enjoys the strongest free-speech protections. As the Supreme Court stated 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 explained in 2003, "The right to criticize the government" is at "the heart of what the First Amendment is meant to protect."

The First Amendment prevents government from directly curtailing speech, such as attempting to prevent publication of material critical of it. Americans witnessed this in the Pentagon Papers case, where the Supreme Court ruled that government couldn't prevent newspapers from publishing a leaked study on U.S. military involvement in Vietnam that was politically damaging.

It also applies when government acts indirectly, such as threatening to investigate a media company or cutting university funding based on politically disfavored action or inaction.

In 2024, the Supreme Court unanimously ruled that New York State's efforts to punish companies doing business with the National Rifle Association because of the organization's political positions violated the group's First Amendment rights.

Similarly, courts have recently ruled on First Amendment grounds against Trump administration efforts to punish law firms or withhold funds from Harvard University.

Just last week, a Florida federal court dismissed President Trump's lawsuit against The New York Times seeking $15 billion for alleged harm to his investments and reputation.

Nevertheless, some fear government retribution for criticizing the administration. Some, like ABC network, have taken speech-restricting action independently, such as temporarily removing Kimmel from air for comments critical of conservative activists following Charlie Kirk's death.

Before Kimmel's suspension, FCC Chairman Brendan Carr described his negotiations with ABC's parent company, Disney, saying, "We could do this the easy way or the hard way." Trump stated that some media companies might "lose their license" for criticizing the president. Encouragingly, ABC has reversed course and agreed to reinstate Kimmel.

The First Amendment protects speech across the political spectrum, even speech Americans dislike. Both liberal comedian Jon Stewart and conservative commentator Tucker Carlson recently agreed on this. As Carlson stated, "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."

Just last year in the aforementioned NRA case, the Supreme Court clearly stated that even indirect government efforts to curtail protected speech are unconstitutional. Given this ruling, efforts to limit criticism of any administration should deeply concern all Americans, regardless of political views.

Ray Brescia, Associate Dean for Research and Intellectual Life, Albany Law School

This article is republished from The Conversation under a Creative Commons license. Read the original article.