By Ray Brescia
Imagine a protest outside the funeral of a popular political leader, with some of the protesters celebrating the death and holding signs that say things like “God Hates the USA/Thank God for 9/11,” “America is Doomed” and “Don’t Pray for the USA.”
No matter the political leanings of that leader, most Americans would probably abhor such a protest and those signs.
What would tolerate such activities, no matter how distasteful? The First Amendment.
The situation described above is taken from an actual protest, though it did not involve the funeral of a political figure. Instead, members of the Westboro Baptist Church protested outside the funeral of Marine Lance Cpl. Matthew Snyder, a U.S. service member killed in Iraq.
Through demonstrations like this, members of this group were conveying their belief that the U.S. is overly tolerant of those they perceive as sinners, especially people from the LGBTQ community, and that the death of U.S. soldiers should be recognized as divine retribution for such sinfulness.
Snyder’s family sued for intentional infliction of emotional distress, among other claims. A jury issued a US$5 million jury award in favor of the family of the deceased service member. But in a nearly unanimous decision issued in 2011, the U.S. Supreme Court found that the First Amendment insulated the protesters from such a judgment.
This holding is particularly instructive today.
The Trump administration has vowed to crack down on what it calls hate speech. It has labeled antifa, a loosely organized anti-fascist group, a terrorist organization. And it has sought to punish figures such as TV host Jimmy Kimmel for statements perceived critical of conservative activists.
What the First Amendment makes clear is that it does not just protect the rights of speakers who say things with which Americans agree. Or, as the Supreme Court said in a separate decision it issued one year after the case involving the funeral protesters: “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.”
But free speech is not absolute. As a legal scholar who has studied political movements, free speech and privacy, I realize the government can regulate speech through what are known as “reasonable time, place, and manner” restrictions. These limits cannot depend upon the content of the speech or expressive conduct in which a speaker is engaged, however.
For example, the government can ban campfires in an area prone to wildfires. But if it banned the burning of the U.S. flag only as a form of political protest, that would be an unconstitutional restriction on speech.
Protected and unprotected speech
There are certain categories of speech that are not entitled to First Amendment protection. They include incitement to violence, obscenity, defamation and what are considered “true threats.”
When, for example, someone posts threats on social media with reckless disregard for whether they will instill legitimate fear in their target, such posts are not a protected form of speech. Similarly, burning a cross on someone’s property as a means of striking terror in them such that they fear bodily harm also represents this kind of true threat.
There are also violations of the law that are sometimes prosecuted as “hate crimes,” criminal acts driven by some discriminatory motive. In these cases, it’s generally not the perpetrator’s beliefs that are punished but the fact that they act on them and engage in some other form of criminal conduct, as when someone physically assaults their victim based on that victim’s race or religion. Such motives can increase the punishment people receive for the underlying criminal conduct.
Speech that enjoys the strongest free-speech protections is that which is critical of government policies and leaders. As the Supreme Court said 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 would explain in 2003, “The right to criticize the government” is at “the heart of what the First Amendment is meant to protect.”
Restrictions on government action
The First Amendment prevents the government from taking direct action to curtail speech by, for example, trying to prevent the publication of material critical of it. Americans witnessed this in the Pentagon Papers case, where the Supreme Court ruled that the government could not prevent newspapers from publishing a leaked – and politically damaging – study on U.S. military involvement in Vietnam.
But it also applies when the government acts in indirect ways, such as threatening to investigate a media company or cutting funding for a university based on politically disfavored action or inaction.
In 2024 the Supreme Court ruled unanimously that the state of New York’s efforts to punish companies that did business with the National Rifle Association because of the organization’s political positions violated the group’s First Amendment rights.
Similarly, in recent months, courts have ruled on First Amendment grounds against Trump administration efforts to punish law firms or to withhold funds from Harvard University.
And just last week, a federal court in Florida threw out a lawsuit filed by President Trump against The New York Times seeking $15 billion for alleged harm to the president’s investments and reputation.
Nevertheless, some people fear government retribution for criticizing the administration. And some, like the TV network ABC, have engaged in speech-restricting action on their own, such as taking Kimmel temporarily off the air for his comments critical of conservative activists in the wake of Charlie Kirk’s killing.
Before Kimmel’s suspension, Federal Communications Commission Chairman Brendan Carr described his negotiations with ABC’s parent company, Disney, to take action against him. “We could do this the easy way or the hard way,” Carr said. And Trump said that some media companies might “lose their license” for criticizing the president. It is encouraging that, in the face of these threats, ABC has reversed course and agreed to put Kimmel back on the air.
AP Photo/Julia Demaree Nikhinson
The First Amendment protects speech across the political spectrum, even speech Americans do not like. Both liberal comedian Jon Stewart and conservative commentator Tucker Carlson have recently agreed on this. As Carlson said recently, “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 NRA case referenced above, the Supreme Court clearly stated that even indirect government efforts to curtail protected speech are indeed unconstitutional. In light of that ruling, efforts to limit criticism of the administration, any administration, should give all Americans, regardless of their political views, great pause.
Ray Brescia is Associate Dean for Research and Intellectual Life at Albany Law School.
Pogo says
@Ray Brescia (and FlaglerLive)
Amen.
Laurel says
The KKK have the right to march down Main Street, and I have the right to stand on the sideline with a sign that reads “Coneheads.”
What I cannot stomach is people calling the employers of people who have the right to criticize, and getting them fired. That’s just nasty, horrific and right out of dystopian dictatorship.
Most of us, who grew up in the 50’s and 60’s, *censored* ourselves simply out of common courtesy. We held it for more important protests, like the way black people were treated, or for the Vietnam War, which young men died for, basically, oil. To protest someone’s funeral is just tacky, and a sad lack of manners. Self censorship, not government censorship, should apply. Today, people cry and sue at the drop of a hat, and thin skinned Trump has made that normal.
Ed P says
Anyone who points a finger in the direction of the Republicans over any free speech violations needs to pause and think.
All of big tech/ social media have come clean that they censored and targeted select groups and de-platformed even a President of the United States.
Now, “quiet skies” TSA scandal exposes that it flagged republicans. Surveillance of Americans was justified under the Biden administration. Even Republican members of Congress were targeted. Hence, targeting Americans for using free speech or attending meetings or rallies.
Appears erosion of free speech started before Trump.
Pretty rich…..
Laurel says
Ed P: Free speech has always been under fire, but it has flared up dramatically under Trump, who feels it should be monitored.
Okay, I paused and thought. The Vice President of the United States, Vance, publicly encouraged people to “…hell, call their [enemy’s] employer!” Right out of freakin’ “1984.” The President of the United States, Trump, lied to the public repeatedly, by several thousand times, that has been fact checked and documented. The current *Republican* Party is okay with it all. Aside the way black people were treated, and the McCarthy era, our country has never been this oppressive in my lifetime. You absolutely cannot compare this U.S. administration against any other U.S. administration, concerning an oppressive environment. Trump takes the cake.
BTW, I never have noticed you correct Dennis C. Rathsam in his tirades that America is back to the way it was. It was never like this.
Sherry says
These are just a few of the horrific things said about women by Maga’s Lord and Master trump. . . why shouldn’t “HE” be fired? Yeah right. . . let the Maga excuses begin:
“I am much better looking than Kamala Harris.” [August 17, 2024]
“She was a bum three weeks ago. She was a bum. A failed vice president in a failed administration.” [July 27, 2024]
“She’s so bad. She’s so pathetic. She’s so fu*king bad.” [July 3, 2024]
“You know what, people don’t like her. Nobody likes her. She could never be the first woman president. She could never be. That would be an insult to our country.” [Sept. 8, 2020]
“Very, very nasty … the meanest, the most horrible, most disrespectful of anybody in the U.S. Senate.” [Aug. 11, 2020]
On “The View” co-host Sunny Hostin
“That is one dumb woman. Sorry. I’m sorry, women, she’s a dummy.” [October 9, 2024]
On “The View” co-host Whoopi Goldberg
“She was so filthy, dirty, disgusting. She was so dirty. Every word was filthy, dirty. What a loser she is.” [October 9, 2024]
On Fulton County, Georgia, District Attorney Fani Willis
“She was out of her mind.” [Jan. 9, 2024]
On House Speaker Emerita Rep. Nancy Pelosi
“She’s turned on him like a dog. She’s as crazy as a bed bug.” [July 20, 2024]
“We’ll stand up to crazy Nancy Pelosi, who ruined San Francisco — how’s her husband doing, anybody know?” [September 29, 2023]
On Democratic Rep. Alexandria Ocasio-Cortez
“This is not even a smart person, other than she’s got a good line of stuff. I mean, she goes out and she yaps.” [Aug. 14, 2020]
On Stormy Daniels
“Horseface.” [Oct. 16, 2018]
“I never liked horseface. That wouldn’t be the one.” [March 25, 2023]
On the #MeToo movement
“It is a very scary time for young men in America, where you can be guilty of something you may not be guilty of…” [Oct. 2, 2018]
“You’ve got to deny, deny, deny and push back on these women. If you admit to anything and any culpability, then you’re dead. … You’ve got to be strong. You’ve got to be aggressive. You’ve got to push back hard. You’ve got to deny anything that’s said about you. Never admit.”
Ed P says
Laurel,
Referencing your finger pointing, when was the last time you chastised anyone other than the right?
The content of Mr Rathsam’s post are not universally or entirely wrong. The blunt in your face delivery and over generalizations tend to push some folks buttons. I tend to think he knows it.
Actually, makes the whole experience at FL a bit more entertaining.
Lighten up a bit.
Laurel says
Ed P: I hardly expect you to know all that I have written here, of course not. I am an Independent, who is married to a Republican, and not particularly happy with either party. I have written:
Republicans take everything away.
Democrats give everything away.
Compromise is important, but it was the Republicans who, running in 2016, stated they would not comprise even 10% with the Democrats.
I have criticized Democrats too, but not nearly as often, as they are not trying to overthrow the government. I have not seen them climb the walls of our Capital, or crap inside it. I haven’t seen them put masked men, with no identification, pulling people off the streets and shoving them in unmarked vehicles, with no records of them available to the public. I’ve seen the current Republican administration cut taxes for the very wealthy, while cutting programs to feed children. I haven’t seen Democrats trying to whitewash history. I haven’t seen them thumb their noses at legal subpoenas, or work at undermining the departments of our government. I listened to Republicans cry “Jobs! Jobs! Jobs!” and turn around and kill the jobs of thousands…and they are not done. More than once, I have watched Democrats pass the torch to a Republican President with grace, and not denial. I see Democrats trying to get health insurance for all, so we no longer worry about losing our homes should a health problem arise, while the Republicans cut it up piece by piece, then blame the Democrats for its failure. I have heard the current President state “Sorry, I hate my enemies” and “the enemies come from within.” That’s us. That’s so, very wrong. That’s intentional division. I’ve seen supposed “Christians,” with their doorknocker crosses, spew nasty comments and plans with impunity, while condemning the very people their savior said to help.
I am not a follower, and don’t care about conformity or social acceptance. I have paid attention, and the crazy town ramblings, oppressive behavior and excessive lying comes from the top of the right. If I push buttons, that cause people to think, then that’s wonderful! Like Popeye, I eats me spinach, and I yam what I yam. And that’s a good thing!
Sherry says
Thanks so much Laurel and Right On! I see you as a great “truth teller”!
Laurel says
Thank you, Sherry!
*blush*