It might be the second right granted in ...

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It might be the second right granted in the First Amendment, but freedom of speech is the

most recognized of the five rights in the First Amendment. In fact, about three quarters of

those surveyed1

could cite free speech as one of the rights, while less than half of those

same people could name one of the four other rights outlined.

Before diving into the free speech rights of Americans, it's important to note that free

speech issues deal with what government bodies permit or prohibit. Remember, the First

Amendment states, “Congress shall make no law...” In other words, while a government

body usually cannot limit free speech without violating the First Amendment, a private

group can. That issue will be discussed further in Chapter 12.

What Is Speech?

So, what counts as protected speech? Whether it's an armband, a song, a gesture, a dona-

tion—or even choosing not to speak—courts have supported the First Amendment right of

Americans to express themselves in many ways, including on the internet and social media.

This section highlights the various forms speech can take and the court cases that have

helped set the boundaries for what speech is allowable.

Symbolic Speech

During the Vietnam War, a group of students in Iowa decided to silently protest by wearing

black armbands to school. Despite the protest being peaceful, the students were punished.

They sued the school district, and the case was appealed all the way to the Supreme Court.

In the 1969 decision in Tinker v. Des Moines Independent Community School District, jus-

tices ruled 7 to 2 that students don't “shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate.”2

The case reinforced the rights of students to engage in nondisruptive speech at school.

It also clearly reinforced that symbolic speech is protected under the First Amendment.

Symbolic speech is when someone communicates a point of view by using symbols,

street theater, short phrases, or other nonverbal means. This kind of speech became pop-

ular in the 1960s during the Civil Rights Movement, protests against the Vietnam War,

women's rights marches, and other political demonstrations. It was effective because it took

advantage of the power of T.V news to communicate images.

Some examples include burning an American flag in protest, making satirical effigies

of political figures, holding up two fingers in a peace sign or splashing fake blood on the

steps of Congress. Symbolic speech now is a staple of demonstrations all around the world.

Dozens of cases beyond Tinker have been heard by the courts questioning whether the

government can censor or prevent symbolic speech.

In one, a young man attempted to enter a courthouse in Los Angeles wearing a coat

49

Figure 4.1 American flag set ablaze during Ferguson

protests of police killing of Michael Brown, Ferguson,

M.O, October 10, 2014.

Figure 4.2 Five Vietnam war protesters burn their draft

cards at Union Square Park, New York City, November 6,

1965.

with the phrase “Fuck The Draft” written on the back. He was arrested and convicted. The

case, Cohen v. California, went to the Supreme Court, which ruled in 1971 that the man had

the right to wear the coat, including on government property. The Court said this was clearly

political speech.3

There have been many cases involving the American flag. Flag burning, wearing a flag

on the seat of your pants, flying the flag upside down (a symbol of surrender), and using

the flag in irreverent ways in art have all been tested in the courts. The Supreme Court has

consistently ruled these uses of the flag as protected speech.4

This is why some have pushed for an

amendment to the U.S Constitution that

would prohibit desecration of the flag.5

That amendment has not passed. One of

the problems is defining desecration. Is it

stepping on a flag or burning it? Or does it

include flag symbols on clothing or using

the flag for commercial purposes, such as

to promote beer?

Some symbolic speech has not been

protected under the courts, though.

For example, in a 1968 decision, the

Supreme Court ruled that burning a draft

card was not protected speech. Draft-card

burning to protest the Vietnam War was

common during the 1960s. A group of

young men would gather in a public place and burn their draft cards while news photogra-

phers recorded the event. Many of these protesters were arrested by local police and con-

victed in local courts. In its decision upholding the arrests, the Court said the card was

government property since it had been issued by the government, and burning it was

destroying government property.6

In the 2020s, symbolic speech at

polling places has come into question, as

more people started taking photos of

themselves voting to share on their social

networks. In one such case, a woman sued

the state of North Carolina over a law that

prohibits photos in the election booth. She

was threatened with arrest for posting a

photo of herself holding her primary elec-

tion ballot in March 2024. “Laws against

#ballotselfie are bullshit,” she wrote in her

post on the social network X.7

There have

also been debates about whether voters

can wear political clothing and pins to the

polls.8

50 | The Power of Free Expression in America

Q.R 4.1 Dee Snider inter-

view about Senate hear-

ing on explicit lyrics

(YouTube).

Artistic Expression and Obscenity

Artistic expression has traditionally been upheld as protected First Amendment speech.

Looking at public reaction to one type of art—song lyrics—and the court decisions regarding

those battles is a helpful tool to understand the various limits to free speech.

Courts have ruled that speech can be limited when the content is “obscene,” and there

are also laws against copyright violations and defamation (which is addressed in Chapter

5).

Obscenity is when work includes highly offensive sexual content, without any redeem-

ing social, artistic, political, or scientific value. It is judged by community standards, which,

as you may imagine, can vary greatly from place to place. The law and the court cases that

helped define it are detailed in Chapter 9. Its application to artistic work is detailed here.

In the 1990s, the case of the Miami-based rap group 2 Live Crew tested these limits.

The group's 1989 album As Nasty as They Wanna Be included the hit song “Me So Horny.”

Some Florida residents complained to the county sheriff, who asked a federal judge to rule

the album obscene.9

The sheriff's office then arrested a record store owner in Florida for

selling the album, and the rappers in the group were later arrested after performing the

songs at a club.10The lyrics are mild compared to today's popular music, and it may be hard

to imagine a musician being arrested for performing a song that talks explicitly about sex.

And it turns out, a federal court overturned the obscenity ruling, and the musicians were

acquitted of the obscenity charges. Luther Campbell, a member of the group, reminisced

about the impact of the Court case in a Variety magazine article in 2020. “The obscen-

ity case was extremely far-reaching for hip-hop,” he said. “This case is the one that allows

artists to say what they want on their records.”11

Musicians have long been targeted for their lyrics, often by parents seeking to protect

their children from being exposed to offensive material. For example, Billie Holiday's song

“Strange Fruit” about lynchings in America, recorded in 1939, was banned from sales and

airplay in several parts of the country.

Concerns over song lyrics prompted a private group called

the Parents Music Resource Center (P.M.R.C) to propose record

companies add explicit content labels to albums that include sex-

ually explicit or offensive lyrics—work that wasn't considered

legally obscene, but that still included racy material. The group

lobbied for a law that would require the companies to add the

labels, and the 1985 Congressional hearings on the proposal

brought testimony from prominent musicians, who said the pro-

posed law would amount to censorship. One of those who testi-

fied was Dee Snider of the heavy metal group Twisted Sister,

whose song “We're Not Gonna Take It” was on the list of 15 objec-

tional songs compiled by the P.M.R.C. Any impure interpretation of

his songs belonged to the listener, Snider said. “The beauty of lit-

erature, poetry and music is that they leave room for the audience

to put its own imagination, experiences and dreams into the

world,” Snider testified.12

In the end, Congress did not pass a law requiring the explicit content labels. Regard-

less, record companies started including the labels after continued pressure from the

P.M.R.C,13 an example of how private pressure can have real impact on speech even if it is

not technically a violation of the First Amendment.

Chapter 4: Free Speech | 51

Figure 4.3 Parental advisory label from 2 Live Crew's

“As Nasty as They Wanna Be,” 1989.

In another case about lyrics in 2014, the Supreme Court in Elonis v. United States

reversed the arrest of a Florida man who posted threatening rap lyrics to his social media

account. At his trial, Elonis “testified that his posts emulated the rap lyrics of the well-known

performer Eminem, some of which involve fantasies about killing his ex-wife,” the Court rul-

ing read. 14

First Amendment challenges are not limited to music, of course, and artists are often

pushing boundaries in their work.

Photographer Robert Mapplethorpe's art made news in 1990 when a museum exhibit

of his sexually explicit photographs was shut down.15 The museum sued, and at the trial in

Cincinnati, a jury supported its right to showcase the art.16 Nine years later, another con-

troversial art exhibit made headlines in Brooklyn when New York City Mayor Rudy Guiliani

threatened to withhold city funding for the Brooklyn Museum in response to hosting the

exhibit, which included artwork “depicting the Virgin Mary as a Black woman made of ele-

phant dung and set against a shimmering gold background replete with women's buttocks

cut from pornographic magazines.”17 A federal judge issued a court order18 preventing the

city from acting against the museum, and the museum and city ended up settling outside of

court.19The publicity boosted the popularity of the exhibit.

Hate Speech

In an age of cyberbullying, partisan politics and negative discourse filled with racist, misog-

ynistic, and homophobic content, it can be difficult to accept that hate speech is protected

expression. But that is the case, and courts have again and again voted to protect hate

speech under the First Amendment.

The case that is often cited as setting the precedent is Brandenburg v. Ohio, in 1969.

Clarence Brandenburg, a Ku Klux Klan leader, challenged an Ohio law that prohibited orga-

nizing people to preach hatred or overthrow the government. He had been arrested at a

rally for speaking about hatred of Jews and Blacks. He had made comments about taking

action to force the government to change its laws. The state also presented evidence that

weapons and a Bible were found at the K.K.K rally. There was no violence. The Supreme

Court overturned the conviction of the K.K.K member. The Court said that the state may not

forbid advocating force except in circumstances where “such advocacy is directed to incit-

ing or producing imminent lawless action and is likely to incite or produce such action.”20

52 | The Power of Free Expression in America

This means that only when and if expression merges with criminal behavior will it be

considered outside the protection of the First Amendment.

Figure 4.4 Klansmen in robes with burning cross, January 1959.

Another form of symbolic hate speech is cross burning, which has been used by

groups such as the K.K.K to intimidate Black people and other minority groups.21 As a result,

several states have passed bans on burning crosses. In the 2003 Virginia v. Black case, the

Supreme Court partially struck down a 50-year-old cross-burning law in Virginia. In an opin-

ion column about the 7 to 2 decision, ucla First Amendment law professor Eugene Volokh

noted that burning a cross is “evil speech; but the First Amendment protects even evil

ideas.”22 He continued:

Burning a cross is considered “speech” for First Amendment purposes, just

like displaying a cross, burning a flag, or flying a flag. These forms of expres-

sion are very different morally, but they are all statements in a well-estab-

lished language of symbols—for over 70 years, the Supreme Court has said

that symbolic expression is covered by the free speech guarantee.23

Chapter 4: Free Speech | 53

Figure 4.5 Official portrait of Supreme

Court Justice Clarence Thomas, 2004.

In his dissent, Justice Clarence Thomas, then

the only Black member of the Court, wrote that all

cross burning was meant to intimidate and could

never represent freedom of expression. He wrote:

This statute prohibits only conduct, not

expression. And, just as one cannot burn

down someone's house to make a political

point and then seek refuge in the First

Amendment, those who hate cannot terrorize

and intimidate to make their point.24

Many well-meaning colleges across the United

States have passed so-called “anti–hate speech”

codes designed to prohibit students from insulting

other students based on their race, gender, sexual

orientation, or political views. Many states have also

passed some kind of “anti–hate speech” laws.

In 1992, the Supreme Court ruled in R.A.V. v.

City of St. Paul that it is a violation of the First

Amendment to pass laws or codes that attempt to

censor the content of speech. That is, it's legal to call someone a racist name or denigrate

someone's religion or sexual orientation. The codes and laws were declared to be overly

broad and forced a kind of “political correctness” on people who may have minority

views.25 And yet, many schools continue to restrict speech.

In 2024 there were many protests about the Israel-Hamas war in Gaza, particularly on

college campuses. There was intense political pressure on colleges and universities around

the United States to punish protesters, especially those accused of antisemitism. Many uni-

versities responded by making their student conduct codes stricter. The new codes include

attempts to stop hate speech and increased penalties for violations of the rules. These

codes have not been tested in courts as of this printing. It will require a substantial change

in the long-standing Supreme Court precedents permitting hate speech if the new codes

are upheld.

Hate speech clearly makes people uncomfortable and angry, but hate speech is legal.

But what about hate crimes? Hate crimes are those in which a normal crime has been

committed, such as assault, vandalism, or murder. If it can be proven that the crime was

motivated by some kind of “hate,” such as dislike of Jews or gay people, the state may

add time to the sentence of the person convicted. There is, in our system, a clear differ-

ence between speech and action. It is often said that you have the right to swing your arms

any way you want until they come into contact with my face. The point here is that a crime

is an action. If someone has desecrated a cemetery, beat up a Muslim person, or painted

swastikas on a synagogue, that is a crime. Adding time in jail for these kinds of hate-moti-

vated actions is constitutional. In the 1993 Supreme Court case of Wisconsin v. Mitchell, in

which several Black youths attacked and beat a White boy because he was White, the Court

ruled unanimously that the hate crime laws are within the Constitution. Chief Justice William

Rehnquist wrote, in part: “A physical assault is not by any stretch of the imagination expres-

sive conduct protected by the First Amendment.”26

54 | The Power of Free Expression in America

Consider this

Do you support free speech regardless of content? Even hateful, vile speech? Here's a story

that might help you grapple with this question.

In 1993, the American Civil Liberties Union (A.C.L.U) agreed to defend Michael Lowe,

the grand dragon of the Texas Knights of the Ku Klux Klan (K.K.K), in a First Amendment

case. Lowe was fighting a state order to turn over the membership list for his chapter—some-

thing the local K.K.K group believed would violate their rights to free association and free

speech under the First Amendment.27

The A.C.L.U lawyer who took on the case was Anthony P. Griffin, a Black man who, at the

time, was also an attorney for the Texas branch of the National Association for the Advance-

ment of Colored People (N.A.A.C.P).

It might seem odd, disturbing even, to have a Black man and N.A.A.C.P member represent

a K.K.K leader in court. But Griffin did just that, telling the New York Times in an interview:

“I told Mr. Lowe this was not about me liking him or him liking me. I said, 'This is about

the First Amendment and your right to assemble and your right to free speech.'”28 In other

words, Griffin believed the First Amendment protects all groups or individuals who want to

express their views.

It was a controversial move. The N.A.A.C.P later voted to remove Griffin as its Texas coun-

sel.29 In the New York Times article, Griffin noted the standard he was defending was set by

a 1958 Supreme Court decision30 involving a similar issue regarding a very different group.

In that case, the state of Alabama wanted the local N.A.A.C.P chapter to release its membership

list and other private documents.

“If we're going to apply the doctrines of the Constitution and the Bill of Rights, we can't

cut it one way for one group and then cut it another way for a different group,” Griffin told

the New York Times.

31

What do you think? Would you defend someone's right to speak, even if you strongly

disagreed with their words? Even if their words were hateful and targeted against you?

Consider what would happen if the government could shut down speech based on the

content. Would your opinion always be protected? If you think some speech should be lim-

ited, whom would you trust to decide which speech would fall into that category?

Political Contributions as Speech

Though previous Court decisions had reinforced that donating money to candidates is a

form of speech,32and that corporations have a right to engage in speech,33 it was a 2010

Supreme Court case that clearly articulated those rights combined and paved the way for

corporate spending on political campaigns in a way that America had never seen before.

The case dealt with a documentary that was highly critical of Hillary Clinton as she

sought the Democratic nomination to run for president in 2008. The nonprofit corporation

Citizens United funded the film and wanted to pay for advertisements to promote it. But that

action would violate a federal law limiting any corporation's ability to contribute to political

Chapter 4: Free Speech | 55

Figure 4.6 Protesters carry signs against

Supreme Court ruling in Citizens United v.

Federal Election Commission, March 12, 2011.

candidates or advocate for their election or defeat.34 So Citizens United sued the Federal

Elections Commission to challenge that law.

In Citizens United v. F.E.C, the Court ruled that

laws limiting corporate political speech and spend-

ing were unconstitutional. Writing for the majority,

Justice Anthony M. Kennedy asserted: “If the First

Amendment has any force, it prohibits Congress

from fining or jailing citizens, or associations of citi-

zens, for simply engaging in political speech.” He

continued, noting the inconsistency in the statute

being overturned:

The law's exception for media corporations

is, on its own terms, all but an admission of

the invalidity of the antidistortion rationale.

And the exemption results in a further, sepa-

rate reason for finding this law invalid: Again by its own terms, the law

exempts some corporations but covers others, even though both have the

need or the motive to communicate their views.35

The decision prompted a lot of debate and concerns that elections would be able

to be bought by the highest bidder. In the dissenting opinion, Justice John Paul Stevens

wrote that the ruling “threatens to undermine the integrity of elected institutions across

the Nation” and paves the way for foreign dollars to enter American elections via corpora-

tions.36President Barack Obama also warned that allowing corporate money to flood the

political marketplace would corrupt democracy. In his State of the Union address just one

week after the ruling, Obama said: “The Supreme Court reversed a century of law that I

believe will open the floodgates for special interests—including foreign corporations—to

spend without limit in our elections.”37

Those concerns have been realized. Spending on American political campaigns has

increased dramatically, and it can be harder to tell where the money originated. Political

Action Committees, known as P.A.C's, have traditionally had strict limits on what they can

donate to a candidate's campaign. But since the Citizens United decision, P.A.C's can spend

more freely on ads or other promotional materials that don't go directly to candidates. The

result is massive spending on political messaging and ways to obscure the source of that

money, what is referred to as “dark money.”38OpenSecrets dot org, a nonprofit research group

that tracks campaign spending, notes that about $1 billion in “dark money” has been spent

on American elections since the Citizens United decision.39

That's the money that can't be traced to a source. When it comes to all spending by

P.A.C's, the numbers are larger. In an analysis of the numbers, OpenSecrets noted: “In 2010,

super P.A.C's spent $62.6 million. Two years later, in the first presidential election cycle fol-

lowing Citizens United, super P.A.C's and hybrid P.A.C's spent $622.7 million. Spending by

those organizations surpassed $4.1 billion in 2024.”40 An example of this impact can be

seen in Elon Musk, considered the world's richest man. He gave more than $291 million

to Republican campaigns and P.A.C's in 2024, according to OpenSecrets. Five other donors

gave $100 million or more during that same election,41 showing the impact wealthy individ-

uals and groups can now have on American politics.

56 | The Power of Free Expression in America

Other 21st century cases, including a 2022 Supreme Court decision in F.E.C v. Cruz,

have reinforced political campaign contributions as protected speech.

Not Speaking

Just as various types of speech are protected under the First Amendment, so is refusing to

speak.

This was made clear when students in West Virginia schools were expelled for refusing

to salute the American flag, in violation of a state law. A 1943 Supreme Court decision over-

turned the law and the expulsions. In the majority opinion written by Justice Robert H. Jack-

son, the Court noted the tension caused by the desire to promote patriotism:

The case is made difficult not because the principles of its decision are

obscure, but because the flag involved is our own. Nevertheless, we apply

the limitations of the Constitution with no fear that freedom to be intellectually

and spiritually diverse or even contrary will disintegrate the social organi-

zation. To believe that patriotism will not flourish if patriotic ceremonies are

voluntary and spontaneous, instead of compulsory routine, is to make an

unflattering estimate of the appeal of our institutions of free minds.42

Figure 4.7 School students pledge allegiance to flag in New York City class-

room, January 1, 1943.

Chapter 4: Free Speech | 57

More than 30 years later in 1977, the Supreme Court in Wooley v. Maynard supported

the rights of a New Hampshire man to refuse to promote the state motto on his license

plate. George Maynard, a Jehovah's Witness, was arrested when he damaged his license

plate by cutting off the words “or die” from the state motto “Live free or die.” He objected

to the phrasing, but state law made it a misdemeanor to cover the motto. The Court in its

6 to 3 decision overturning the law said it had required drivers to “use their private property

as a 'mobile billboard' for the State's ideological message—or suffer a penalty... The First

Amendment protects the right of individuals to hold a point of view different from the major-

ity, and to refuse to foster, in the way New Hampshire commands, an idea they find morally

objectionable.”43

So, the First Amendment protects individuals from being compelled to speak. Several

other cases have reiterated this right. For example, in 2018, the Supreme Court struck

down an Illinois law requiring non-union members to pay membership dues to labor unions,

as the law compelled the workers to support the unions' political positions.44 In 2023,

the Supreme Court ruled that a Colorado law preventing discrimination violated the First

Amendment if it required a graphic designer to “create expressive designs speaking mes-

sages with which the designer disagrees,” specifically—websites about same-sex cou-

ples.45

Networked Speech

It may seem that court decisions over the years have clearly outlined the free speech rights

of Americans, and there should be few questions left. And yet, new First Amendment cases

continue to come before the courts each year. In particular, changes in the 1990s and early

2000s prompted by the internet and social networks have raised new questions about what

speech is allowed and what, if any, regulations should be instituted.

Communications Decency Act

As politicians and civic leaders started using the internet in the 1990s, they started to fear

for the safety of their children. This was the “Wild West,” after all. There was no control

over what was placed online. Someone, for example, bought the domain name www.white-

house dot com and hosted pornography there.46 No one was safe.

In 1996, Congress passed the Communications Decency Act. The law had many sec-

tions, and one part dealt specifically with indecent material online. Under the law, anyone

who used the internet to transmit indecent, “patently offensive,” or obscene material to a

minor could face fines or jail time. Indecency standards are lower than those for obscenity

and are subject to interpretation based on community standards.

Note: Broadcast is regulated more strictly than other media, as you'll read about in

Chapter 10, including limits on indecent materials.

Members of Congress may have had pornography in mind when drafting the law, but it

had real implications for a variety of educational and established websites. An informational

website about sexually transmitted diseases could be construed as “patently offensive.”

Romance novels targeted toward homosexual audiences—legal to be printed and sold in

person—might be in violation of the Communications Decency Act if sold online.

Dozens of groups joined together in two separate lawsuits challenging the law. One

group was headed by the American Civil Liberties Union and included the Philadelphia

58 | The Power of Free Expression in America

Gay News, Salon Magazine, and American Booksellers Foundation for Free Expression.

The other was headed by the American Library Association and included popular internet

providers, such as aol.47

Let's step back a second and put the era into perspective.

This was before Google. The New York Times had only just started publishing online.

Companies were only just starting to get email. And these disparate groups had to seek

understanding and support for free speech on the internet from Supreme Court justices

who had an average age of 63 in 1997 when the case was heard.

The case Reno v. A.C.L.U became a mission to educate about the internet as well as con-

vince the justices that this new medium deserved all the same protections as the printing

press. The effort was successful. In June 1997, the Supreme Court ruled 9 to 0 in favor of the

free speech advocates. The Supreme Court decided that the internet was more like print

than broadcast and should therefore be free from content regulations.

“Unlike communications received by radio or television, 'the receipt of information on

the Internet requires a series of affirmative steps more deliberate and directed than merely

turning a dial,'” the Court wrote in its decision.48

The Court struck down portions of the Communications Decency Act, saying they vio-

lated the First Amendment because the wording was essentially a “content-based” restric-

tion on speech in a medium that should receive full First Amendment protection. The Court

considered that in trying to protect children, the Communications Decency Act also pre-

vented adults from participating in free speech online. Justices borrowed wording from a

previous ruling, saying Congress was “burn(ing) the house to roast the pig.”49

“Although the Government has an interest in protecting children from potentially harm-

ful materials,” the decision stated, “the C.D.A pursues that interest by suppressing a large

amount of speech that adults have a constitutional right to send and receive.”

Speech on Social Media

Another section of the Communications Decency Act—one that wasn't overturned by the

Supreme Court in 1997—continues to impact the kind of speech seen in comments sections

and social media sites.

Section 230 of the Communications Decency Act states: “No provider or user of an

interactive computer service shall be treated as the publisher or speaker of any information

provided by another information content provider.”50

That basically means if you host a news website, and someone posts a libelous com-

ment on that site, you aren't responsible for that comment. Section 230 allows sites like

Facebook and YouTube to exist, because the owners of those sites don't have to worry

about what content users are posting. If these same websites published in other platforms

such as print or broadcast, they would be subject to libel laws. The Electronic Frontier Foun-

dation, a nonprofit group that defends civil liberties in the digital world, notes, “Rather than

face potential liability for their users' actions, most would likely not host any user content at

all or would need to protect themselves by being actively engaged in censoring what we

say, what we see, and what we do online.”51 The law also allows groups to remove or mod-

erate content on their sites.

Think about the impact such a law has had on the development of the internet and

social media. Consider the kind of content you see on social media and websites. From

strong opinions to straight misinformation, that material would likely not be published if the

Chapter 4: Free Speech | 59

hosting websites could be held liable for the content. Meanwhile, the same law that allows

that material to be published also allows for removal or moderation of user-submitted con-

tent and numerous publishers do engage in moderating comments and social media posts,

though that often comes with claims they are engaging in censorship. (Remember, private

control of speech is not a violation of the First Amendment.)

Comment moderation is controversial. Even among those who support it, there is not

a consensus of how it should be done. An international study conducted by researchers

at the Technical University of Munich on perceptions of content moderation published in

202552 found that 35% of respondents from 10 countries feel social media companies

should bear the primary responsibility for comment moderation. About 31% said the respon-

sibility should be citizens' and 30% said it should be up to governments. (Of the Americans

surveyed, the breakdown for those same answers was 38%, 35%, and 23%. In other words,

Americans were less likely to want government interference in comment moderation.)

Americans responding to the survey were also more likely than people from other countries

to say they had been doxed (having their home address published), harassed, or threatened

online.

Online comments aren't totally free from consequence. Despite the broad protections

of Section 230, libel lawsuits for online comments can still be filed against those people

posting the material. Among dozens of examples, two recent ones include a doctor suing a

former patient for posting a negative review online,53 and a man suing several women for

posting negative comments about dating him on a public Facebook group.54 When com-

ments are posted anonymously, though, it can be a challenge to find the person to sue.

Criticism of Section 230 has come from both sides of the political divide. On the

one hand, many have concerns that limiting or fact-checking details on social media plat-

forms—allowed under Section 230—could be a form of censorship. In fact, in an executive

order signed in 2025 on the first day of his second term in office, President Donald Trump

called out previous attempts to “trample free speech rights by censoring Americans' speech

on online platforms, often by exerting substantial coercive pressure on third parties, such as

social media companies, to moderate, deplatform, or otherwise suppress speech that the

Federal Government did not approve.”55

Meanwhile, others are concerned about how much misinformation is shared on those

same networks, which, again, is material permitted by the existence of Section 230.

The study on comment moderation previously mentioned highlights the growing con-

cerns about unfiltered speech online:

While freedom of expression empowers individuals to engage in public dis-

course, participate in activism and amplify marginalized voices, the openness

of digital platforms also leaves users vulnerable to harmful content with real-

world consequences. Those who are frequent targets of such content may

face additional hurdles, which can include increased self-censorship and a

diminished presence in public discourse.56

In the last decade, many politicians have criticized Section 230, and some have even

proposed bills to amend or repeal it, though the attempts have not been successful.57

Trump took aim at Section 230, calling it a “serious threat to our National Security & Election

Integrity” in a December 2020 post on social media,58 though he has been less vocal

60 | The Power of Free Expression in America

since starting his own social media company in 2022, notes Sarah Grevy Gotfredsen of the

Columbia Journalism Review.59

This is an area to watch, as politicians continue to debate the law and its impact on free

speech online.

Consider this

Most speech online is possible because of private companies. Social media posts are shared

through networks like Facebook and X, which are operated by corporations, not the govern-

ment. And even independent websites require that publishers pay for a domain and hosting

through a private company like Google or WordPress.

While private groups are not bound by the First Amendment and can limit speech, typ-

ically content choices have been left up to the publisher or individual poster.

Those norms were tested in 2017, when The Daily Stormer, an alt-right website, posted

hate-filled content about protests in Charlottesville that year, including racist and anti-

Semitic views. In response, GoDaddy, the company that hosted its domain, banned The Daily

Stormer. Several other web-hosting companies also declined to allow The Daily Stormer to

publish through their servers, effectively shutting off its speech to the general public.

The decision was met with support by many who felt the hate speech was destructive.

But it also raised concerns about free speech. The question, as the Electronic Frontier Foun-

dation (E.F.F) raised in its response, is whether this same tactic might be used for other speech

as well. “On the Internet, any tactic used now to silence neo-Nazis will soon be used against

others, including people whose opinions we agree with,” the E.F.F wrote in an August 2017

article about the controversy.60

What do you think? Should a web-hosting company be able to deny a domain to a group

because of speech the company disagrees with? Should social networks be able to limit speech

they find objectionable?

Public Officials on Social Media

As case law surrounding internet free speech evolves, an area to watch is how public offi-

cials' use of social media is treated. Two key questions have been considered: Can public

officials block other users? And can social media platforms block public officials? Both ques-

tions have been addressed in cases involving President Donald Trump.

When Trump was first elected president in 2016, he brought with him his existing Twit-

ter account, @realDonaldTrump. With new posts added several times a day, many found

his unfiltered comments refreshing in an era of carefully crafted statements and public rela-

tions. And his posts received engagement from the American public, with tens of thousands

of retweets and comments on average for each. But Trump also blocked some followers

who criticized him, and those users sued along with the Knight First Amendment Institute at

Columbia University.61

Previous cases in lower courts have ruled that social media accounts for elected offi-

Chapter 4: Free Speech | 61

cials can operate as “a forum for speech on the First Amendment,” and banning people

from the pages can, in fact, be a violation of their free speech.62

While the Supreme Court didn't weigh in on the case against Trump (In 2021 it ruled

the case was moot because Trump was no longer president and because he was banned

from Twitter at that time),63 a 2024 decision in Lindke v. Freed outlined when and how pub-

lic officials can block users from their social media pages. The Court ruled that in order

for social media activity to be considered state action, the official needs to be authorized

to speak on behalf of the state and must be actively speaking as the state instead of in a

personal capacity.64 The decision read: “Here, if Freed acted in his private capacity when

he blocked Lindke and deleted his comments, he did not violate Lindke's First Amendment

rights—instead, he exercised his own.”

Meanwhile, Donald Trump sued Twitter (now called 10), Meta (the company that oper-

ates Facebook), and Google (which operates YouTube) because those platforms banned

him following the January 6, 2021, riot at the U.S Capitol. Trump's lawsuit against Twitter

claimed his First Amendment rights had been violated because lawmakers pressured social

media companies.65 Trump settled most of those lawsuits and was restored to the plat-

forms.66

Emerging Technologies

As new technologies develop, there are bound to be new questions about how they inter-

act with the free speech rights outlined under the First Amendment.

For example, generative artificial intelligence tools create their own content. Is that

speech protected under the First Amendment? Probably not, according to Jack M. Balkin,

the Knight Professor of Constitutional Law and the First Amendment at Yale Law School,

who commented on the issue in a 2024 interview:

The programs themselves don't have First Amendment rights. Nor does it

make sense to treat them as artificial persons like corporations or associa-

tions. The law gives corporations and associations First Amendment rights

because they are groups of human beings who work together on common

projects. It's convenient to use the fiction of legal personhood to assign rights

to the collective project. You don't need to do this in the case of generative

A.I. Nevertheless, people and companies that use A.I to produce content that

they claim as their own have First Amendment rights as speakers. And people

have rights to read or listen to content produced by A.I, even though A.I itself

has no First Amendment rights.67

There are other concerns about A.I speech, like when A.I publishes libelous materials

about people. Some lawsuits have already been filed regarding A.I libel, and legal experts

are debating whether Section 230 should apply to A.I.68 This area will continue to evolve as

the technologies advance and more people interact with them.

Other 21st century tools such as facial recognition, devices that listen and interact with

humans, and big data collection have their own First Amendment implications and will likely

be featured in upcoming court cases as well.

62 | The Power of Free Expression in America

Changemaker: Martin Luther King, J.R.

Few have influenced the nation and world through their use of freedom of expression as did

Martin Luther King, Junior.

At the height of the Civil Rights Movement of the 1950s and 1960s, his words and gift

for oratory shaped a nonviolent movement that helped dismantle segregation and discrimi-

natory laws in the United States.

King developed strong beliefs in the social justice elements of religion and change

through nonviolence.69 He became a public face of Civil Rights during the bus boycotts

prompted by Rosa Parks's arrest for refusing to give up her seat on a city bus. In 1957, King

helped found and became the first president of the Southern Christian Leadership Confer-

ence.

70

Though many were involved in nonviolent protest for civil rights, King helped coalesce

that movement and came to represent it. His powerful oration inspired crowds to action

despite the dangers.

Taylor Branch, a King biographer, described how King commanded attention through

his sermons, saying “his listeners responded to the passion beneath the ideas, to the bottom-

less joy and pain that turned the heat into rhythm and the rhythm into music.”71

Figure 4.8 Martin Luther King, Junior. addressing crowd from the steps of the

Lincoln Memorial where he delivered his “I Have A Dream” speech during

March on Washington, August 28, 1963.

King's “Letter from Birmingham Jail,” and “I Have A Dream” speech are famous works

studied in American schools to this day.

Chapter 4: Free Speech | 63

“I am in Birmingham because injustice is here,” King wrote in 1963. “I cannot sit idly by

in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is

a threat to justice everywhere...Whatever affects one directly, affects all indirectly.”72

He was the youngest person, at 35, to win a Nobel Peace Prize. The Civil Rights Move-

ment led to passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which

dismantled legal discrimination against Black people. King was targeted by officials, arrested

29 times, and assassinated in 1968 at age 39.73 Congress approved a national holiday for King