{"id":7274,"date":"2026-02-10T17:04:06","date_gmt":"2026-02-10T17:04:06","guid":{"rendered":"https:\/\/revolutionsincommunication.com\/law\/?p=7274"},"modified":"2026-02-10T17:12:02","modified_gmt":"2026-02-10T17:12:02","slug":"how-the-first-amendment-protects-you","status":"publish","type":"post","link":"https:\/\/revolutionsincommunication.com\/law\/2026\/02\/10\/how-the-first-amendment-protects-you\/","title":{"rendered":"How the First Amendment protects you"},"content":{"rendered":"

\"\"By Ray Brescia\u00a0<\/em><\/strong>
\nAssociate Dean, Albany Law School, via The Conversation<\/a>,<\/p>\n

Imagine a protest<\/strong> outside the funeral of a popular political leader, with some of the protesters celebrating the death and holding signs that say things like \u201cGod Hates the USA\/Thank God for 9\/11,\u201d \u201cAmerica is Doomed\u201d and \u201cDon\u2019t Pray for the USA.\u201d<\/p>\n

No matter the political leanings of that leader, most Americans would probably abhor such a protest and those signs. Why would (we) tolerate such activities, no matter how distasteful? The First Amendment.<\/p>\n

The situation described above is taken from an actual protest, though it did not involve the funeral of a political figure. Instead,\u00a0members of the Westboro Baptist Church protested<\/a>\u00a0outside the\u00a0funeral of Marine Lance Cpl. Matthew Snyder<\/a>, a U.S. service member killed in Iraq.<\/p>\n

Through demonstrations like this, members of this group were conveying their belief that the U.S. is\u00a0overly tolerant of those they perceive as sinners<\/a>, especially people from the LGBTQ community, and that the\u00a0death of U.S. soldiers should be recognized as divine retribution<\/a>\u00a0for such sinfulness.<\/p>\n

Snyder\u2019s family sued for intentional infliction of emotional distress, among other claims. A jury issued a\u00a0US$5 million jury award<\/a>\u00a0in 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\u00a0the First Amendment insulated the protesters from<\/a> such a judgment.<\/p>\n

This holding is particularly instructive today.<\/p>\n

<\/p>\n

The Trump administration has vowed to crack down on\u00a0what it calls hate speech<\/a>. It has labeled\u00a0antifa<\/a>, a loosely organized anti-fascist group,\u00a0a terrorist organization<\/a>. And it has sought to\u00a0punish figures such as TV host Jimmy Kimmel<\/a>\u00a0for statements perceived critical of conservative activists.<\/p>\n

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\u00a0a separate decision<\/a>\u00a0it issued one year after the case involving the funeral protesters: \u201cThe 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.\u201d<\/p>\n

But free speech is not absolute. As\u00a0a legal scholar<\/a>\u00a0who has studied\u00a0political movements, free speech and privacy<\/a>, I realize the government can regulate speech through what are known as \u201creasonable time, place, and manner<\/a>\u201d restrictions. These limits cannot depend upon the content of the speech or expressive conduct in which a speaker is engaged, however.<\/p>\n

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.<\/p>\n

Protected and unprotected speech<\/strong><\/p>\n

There are certain categories of speech that are not entitled to First Amendment protection. They include\u00a0incitement to violence<\/a>,\u00a0obscenity<\/a>,\u00a0defamation<\/a>\u00a0and what are considered \u201ctrue threats<\/a>.\u201d<\/p>\n

When, for example, someone posts threats on social media with reckless disregard for whether they will instill legitimate fear in their target, such posts\u00a0are not a protected form of speech<\/a>. Similarly,\u00a0burning a cross on someone\u2019s property as a means of striking terror in them<\/a>\u00a0such that they fear bodily harm also represents this kind of true threat.<\/p>\n

There are also violations of the law that are sometimes prosecuted as \u201chate crimes<\/a>,\u201d criminal acts driven by some discriminatory motive. In these cases, it\u2019s generally not the perpetrator\u2019s beliefs that are punished but the fact that they act on them and engage in\u00a0some other form of criminal conduct<\/a>, as when someone physically assaults their victim based on that victim\u2019s race or religion. Such motives can\u00a0increase the punishment people receive<\/a>\u00a0for the underlying criminal conduct.<\/p>\n

Speech that enjoys the strongest free-speech protections is that which is\u00a0critical of government policies and leaders<\/a>. As the\u00a0Supreme Court said<\/a>\u00a0in 1966, \u201cThere is practically universal agreement that a major purpose of (the First) Amendment was to protect the free discussion of governmental affairs.\u201d<\/p>\n

As the late Justice Antonin Scalia\u00a0would explain<\/a>\u00a0in 2003, \u201cThe right to criticize the government\u201d is at \u201cthe heart of what the First Amendment is meant to protect.\u201d<\/p>\n

Restrictions on government action<\/strong><\/p>\n

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\u00a0the Pentagon Papers case<\/a>, where the Supreme Court ruled that the government could not prevent newspapers from publishing a leaked \u2013 and politically damaging \u2013\u00a0study on U.S. military involvement in Vietnam<\/a>.<\/p>\n

But it also applies when the government acts in indirect ways, such as threatening to investigate a media company or\u00a0cutting funding<\/a>\u00a0for a university based on\u00a0politically disfavored action or inaction<\/a>.<\/p>\n

In 2024 the Supreme Court ruled unanimously that the state of\u00a0New York\u2019s efforts to punish companies<\/a>\u00a0that did business with the National Rifle Association because of the organization\u2019s political positions\u00a0violated the group\u2019s First Amendment rights<\/a>.<\/p>\n

Similarly, in recent months, courts have ruled on First Amendment grounds against\u00a0Trump administration efforts to punish law firms<\/a>\u00a0or to\u00a0withhold funds from Harvard University<\/a>. and a federal court in Florida\u00a0threw out a lawsuit filed by President Trump against The New York Times<\/a>\u00a0seeking $15 billion for alleged harm to the president\u2019s\u00a0investments and reputation<\/a>.<\/p>\n

Nevertheless, some people\u00a0fear government retribution<\/a>\u00a0for criticizing the administration. And some, like the TV network ABC, have engaged in speech-restricting action on their own, such as taking\u00a0Kimmel temporarily off the air<\/a>\u00a0for his comments critical of conservative activists in the wake of\u00a0Charlie Kirk\u2019s killing<\/a>.<\/p>\n

Before Kimmel\u2019s suspension, Federal Communications Commission Chairman Brendan Carr described his negotiations with ABC\u2019s parent company, Disney, to take action against him. \u201cWe could do this the easy way or the hard way<\/a>,\u201d Carr said. And Trump said that some media companies might \u201close their license<\/a>\u201d for criticizing the president. It is encouraging that, in the face of these threats, ABC has reversed course and\u00a0agreed to put Kimmel back on the air<\/a>.<\/p>\n

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\u00a0Carlson said recently<\/a>, \u201cIf they can tell you what to say, they\u2019re telling you what to think. \u2026 There is nothing they can\u2019t do to you because they don\u2019t consider you human.\u201d<\/p>\n

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.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Ray Brescia\u00a0 Associate Dean, Albany Law School, via The Conversation, 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 \u201cGod Hates the … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[20,25,11],"tags":[],"class_list":["post-7274","post","type-post","status-publish","format-standard","hentry","category-censorship","category-constitutional-law","category-libel"],"_links":{"self":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts\/7274","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/comments?post=7274"}],"version-history":[{"count":5,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts\/7274\/revisions"}],"predecessor-version":[{"id":7280,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/posts\/7274\/revisions\/7280"}],"wp:attachment":[{"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/media?parent=7274"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/categories?post=7274"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/revolutionsincommunication.com\/law\/wp-json\/wp\/v2\/tags?post=7274"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}