Too many Americans who say they believe in free speech mean only their speech. Adopting progressive dogma, the Biden administration claimed that free speech had limits, and broadly suppressed dissenting views. On his first day in office, President Trump issued an executive order to restore traditional (and constitutionally mandated) protections, but his administration’s adherence to that order has been situational.
The First Amendment prohibits Congress from making laws “abridging the freedom of speech … or the right of the people peaceably to assemble.” The Supreme Court has interpreted these protections also to govern executive branch actions and the states.
The Supreme Court explained that with few exceptions, the “First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” (Ashcroft v. ACLU), or because it is false (United States v. Alvarez), or because it is hateful (Matal v. Tam). The remedy is more speech that corrects the record (Whitney v. California).
Trump ran on a platform to end government censorship. His day-one order mandated that no “Federal Government officer, employee, or agent engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen.” Conservatives applauded and those who believe in free speech collectively sighed their relief.
Then things went off course.
As my writings confirm, I fiercely oppose antisemitism, support Israel’s actions since Oct. 7, 2023, and believe the claim that Israel has engaged in genocide is a deliberate lie. Demonstrations on campuses and in Jewish neighborhoods calling for “globalizing the intifada” – meaning to exterminate all Jews – and the rise of rancid antisemitic and white nationalist hate speech from, or legitimized by, the alt-right and alt-right adjacent influencers are abhorrent.
Yet, I defend the right of hate-filled ideologues – even those who may be paid by Hamas or Qatar – to have their say, or engage in demonstrations, so long as they avoid the narrow exceptions recognized by the Supreme Court, such as defamation and calling for imminent violence. Generalized calls for intifada do not meet that threshold.
The Trump administration’s efforts to regulate or defund universities that permit antisemitic speech or favor anti-Israel speakers is unconstitutional, though defunding universities that tolerate the intimidation of Jewish students is laudable. We don’t have to issue student visas to foreigners who oppose American principles, but once students arrive, unless they lied on their applications or commit crimes, deporting them for their distasteful views, as the administration apparently has sought to do, is inconsistent with American values.
Calls from private citizens to silence Tucker Carlson, Candace Owens, Hitler fanboy Nick Fuentes, Thomas Massie, and other influencers who espouse or enable antisemitism are commendable when they seek editorial discretion from publishers and networks, but go astray when they demand or imply action from the FCC or other government agencies. Trump got it right when he said “Ultimately, people have to decide.” He got it wrong when he and FCC Chairman Brendan Carr threatened Disney over Jimmy Kimmel’s intemperate remarks.
The First Amendment protects demonstrators, subject to reasonable restrictions on time, place, and manner to avoid conflicts with others. As the ACLU correctly observes, “If you grab a megaphone during a riot and yell ‘shoot the cop’ or ‘loot the shop,’ you may reasonably expect trouble.”
In 1976, the ACLU successfully argued that Nazis had a right to march in Skokie. Though disturbing, that victory protects conservatives, pro-life people of faith, anti-vaxxers, and supporters of Israel the next time progressives win the presidency.
None of the six senators who participated in a video last week urging servicemen to disobey unlawful orders have identified any such orders. They were transparently seeking to sow discord. However, contrary to President Trump’s response that they are guilty of sedition and subject to execution, the crime of sedition requires a conspiracy to “overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof” (18 U.S.C. § 2384), not mere words.
In Brandenburg v. Ohio, the Supreme Court held that government cannot punish inflammatory speech unless it is “directed to inciting or producing imminent lawless action” and is “likely” to do so. The video does not come close. By contrast, Sen. Mark Kelly, a retired Naval officer subject to the Uniform Code of Military Justice, might be guilty of interfering with the loyalty, morale, and good order and discipline of the armed forces. Whether he gains more than he loses if the Pentagon pursues that claim is an open question.
A majority of Americans believe government is the biggest threat to free speech. In 1783, George Washington warned that if “the Freedom of Speech may be taken away,” then “dumb and silent we may be led, like sheep, to the Slaughter.” The Trump administration, and conservatives generally, must restore core principles.
