I have written several posts related to Various topics, including the military, Voting, the economy, and religion, in America. A list of links has been provided at the bottom of this article for your convenience. This article will, however, address additional issues in these topics.

The history of assaults on the freedom of speech in the United States is a long and complex story of balancing free expression with other government interests like national security and public order. While the First Amendment was established to protect these rights, its scope and limitations have been consistently debated and challenged throughout the nation’s history, especially during periods of conflict or political tension. 

Colonial era and early republic

• Thomas Morton (1629): One of the earliest examples of censorship occurred when the Puritan government of Plymouth Colony banned and sent a military expedition to break up Thomas Morton’s settlement. Morton’s critical book, New English Canaan, and his “lascivious” verses about the Puritans led to his book being outlawed and a military expedition being sent to his settlement.
• Seditious libel trials (1735): The trial of newspaper printer John Peter Zenger, who was arrested for criticizing New York’s governor, is a landmark case for freedom of the press. Though a jury acquitted Zenger, establishing that truth was a defense against libel, the case demonstrated that criticizing the government was a criminal offense in the colonies.
• Sedition Act of 1798: In a blatant attack on free speech just a few years after the First Amendment was ratified, the Federalist-controlled Congress passed the Sedition Act.
  • This law made it a crime to publish any “false, scandalous, and malicious writing” against the government or its officials.
  • It was primarily used to silence political opposition, particularly supporters of Thomas Jefferson, during an undeclared naval war with France.
  • The act was widely unpopular and expired in 1801, but it set a precedent for suppressing dissent during wartime. 

19th century

• Abolitionist censorship (1830s): Before the Civil War, the U.S. Postmaster General refused to deliver abolitionist materials to the South. The First Amendment did not yet limit state and local governments, allowing Southern states to actively suppress abolitionist literature.
• Civil War (1861–1865): President Abraham Lincoln suspended the writ of habeas corpus and allowed for the censorship of telegraph lines and newspapers to control information and suppress dissent. Critics of the war were arrested, demonstrating the government’s willingness to curtail liberties during a national crisis.
• Comstock Act (1873): This federal law banned the mailing and distribution of materials deemed “obscene,” “lewd,” or “immoral,” including information about contraception. Named after anti-vice crusader Anthony Comstock, the act was a major blow to freedom of expression and education. 

20th century

• Espionage and Sedition Acts (1917–1918): In response to World War I, these laws made it a crime to interfere with the draft or to express disloyal or abusive language about the U.S. government, flag, or armed forces.
  • The Supreme Court upheld these restrictions, establishing the “clear and present danger” test in cases like Schenck v. United States (1919).
  • Thousands of anti-war activists, socialists, and pacifists were prosecuted under these acts, though the Sedition Act was later repealed.
• McCarthyism (1940s–1950s): During the Cold War, Senator Joseph McCarthy used public accusations of communism to blacklist and suppress the free expression of political opponents and artists.
  • This era was characterized by a widespread fear of communism that undermined civil liberties, prompting the Supreme Court to later issue rulings to protect radical speech.
• Civil Rights Movement (1960s): While the movement expanded First Amendment protections, civil rights activists faced direct suppression of their speech through permit denials for protests, police violence, and targeted lawsuits. Landmark Supreme Court cases during this period, such as New York Times Co. v. Sullivan (1964) and Tinker v. Des Moines (1969), were crucial in expanding free speech rights.
• Vietnam War censorship: The federal government attempted to block publication of the Pentagon Papers, which exposed classified information about the war. The Supreme Court ruled in New York Times Co. v. United States (1971) that the press could publish the documents, upholding the principle of a free press. 

21st century

• Post-9/11 security measures: The War on Terror led to increased security and surveillance measures that many civil liberties advocates argued impinged on free speech. Whistleblowers who leaked classified information, such as Chelsea Manning and Edward Snowden, have been prosecuted under the Espionage Act, reigniting debates over national security versus free expression.
• Social media and online censorship: The rise of social media has introduced new challenges, including platform moderation, disinformation, online harassment, and debates over “cancel culture”. Governments and private companies, including social media platforms, have been accused of suppressing speech for political reasons.
• Book bans and educational restrictions: Today, there is a rise in challenges to books in libraries and restrictions on classroom discussions, particularly concerning race, gender, and sexuality. The American Library Association notes a significant increase in coordinated challenges to library materials.
• Campaign finance and Citizens United (2010): The Supreme Court’s ruling in Citizens United v. Federal Election Commission allowed for unlimited independent political spending by corporations and unions. Critics argue this decision has given wealthy donors and special interest groups outsized influence in elections, distorting the “marketplace of ideas”. 

Freedom of Speech: An Overview

Summary

The First Amendment to the U.S. Constitution protects “the freedom of speech,” but that protection is not absolute. The Free Speech Clause principally constrains government regulation of private speech. Speech restrictions imposed by private entities, and government limits on its own speech, usually do not implicate the First Amendment. Even when the government is regulating private speech, a court reviewing a First Amendment challenge may decide that the regulation is consistent with the First Amendment if it is supported by a sufficient governmental interest and an appropriately tailored approach.

There is no one-size-fits-all test for deciding whether a speech regulation complies with the First Amendment. The analysis requires parsing out the appropriate legal standards from Supreme Court precedent and often involves applying those standards to new contexts and mediums of expression. Accordingly, when a litigant raises a First Amendment claim or defense in court, much of free speech analysis is directed at determining the appropriate legal standards to apply to the challenged law or government action. That analysis often coalesces around common questions, including the following:

• Is the government regulating speech or non-expressive conduct?
• Is the speech at issue protected or unprotected? Commercial or noncommercial?
• Is the speech regulation content based or content neutral?

Modern First Amendment jurisprudence has gravitated toward the application of tiers of judicial scrutiny ranging from rational basis review (the minimum standard of constitutionality) to strict scrutiny (a difficult standard for the government to satisfy). Typically, laws that regulate speech based on its content (i.e., its subject matter, topic, or viewpoint) receive strict scrutiny, except for regulations of commercial speech (e.g., product advertisements), which typically receive intermediate scrutiny. Laws that regulate speech in a content-neutral way, including some restrictions on the time, place, or manner of speech, usually receive a form of intermediate scrutiny.

The context in which the government regulates speech is also important. For example, the Supreme Court has developed specific tests or frameworks for evaluating the constitutionality of restrictions on student speech in schools, disciplinary actions against public employees for their speech, and policies limiting who can speak about what on government property. The type of free speech challenge (e.g., facial or as-applied) might also dictate the appropriate analytical framework.

Thus, a large part of evaluating a federal statute or bill for compliance with the Free Speech Clause involves determining the appropriate legal standards, which depend on the type of legal challenge or claim, the nature and context of the speech regulation, how that regulation operates, and the degree of protection for the speech at issue. Application of First Amendment scrutiny varies according to the test applied but usually involves considering the strength of the government’s asserted interests and whether the regulation of speech is sufficiently tailored to those interests.

---

The First Amendment protects “the freedom of speech,” but that protection is not absolute. Modern First Amendment jurisprudence draws on more than 80 years of case law developed by the Supreme Court, with hundreds of decisions shaping the presumptions, exceptions, and legal tests that courts apply in free speech challenges today. This report is designed to assist Members of Congress and congressional staff in identifying whether a particular policy proposal, bill, or law may implicate the Free Speech Clause of the First Amendment and what legal standards a court might apply in evaluating that legislative approach.

The report begins by discussing the types of laws that generally implicate the Free Speech Clause of the First Amendment. It then discusses two of the most commonly employed levels of First Amendment scrutiny: strict and intermediate scrutiny. These levels of scrutiny are tests that courts may use in deciding whether a law or government action affecting speech rights comports with the Free Speech Clause. The next section of the report discusses the differences between facial and as-applied challenges and describes the more specific claims of overbreadth, vagueness, and prior restraint that litigants might raise through such challenges. This section includes a flow chart (Figure 1) that illustrates the analytical steps a court might follow to determine what level of scrutiny to apply in deciding the constitutionality of a particular application of a challenged law. The report then presents special contexts for which the Supreme Court has developed legal standards that might differ from the traditional levels of scrutiny. The report concludes by describing other First Amendment rights related to the freedom of speech.

Laws Implicating Free Speech Protections

The Free Speech Clause generally constrains only government action (also called “state action”). A government action restricting speech may take the form of a federal, state, or local law. It can also comprise a less formal rule or policy from a public institution or a discrete government action, such as a prosecution or other enforcement action. The Free Speech Clause applies not only to laws that restrict speech, but also to laws that compel speech by requiring private persons to convey a particular message. In addition to such direct regulations of speech, laws that burden speech or condition government funding or benefits on undertaking or forgoing speech activity may also implicate the First Amendment.

As the First Amendment principally limits the government’s ability to regulate private speech, it generally does not constrain the government when the government is speaking for itself. Likewise, private action is not usually subject to First Amendment constraints. The line between government action and private action can be “difficult to draw” in some cases, such as when a public official blocks a follower on social media. The First Amendment also prohibits the government from coercing private actors to take actions that suppress other private entities’ speech.

Determining whether a particular law or government action comports with the First Amendment is often a multistep analysis. As a threshold matter, a court reviewing a free speech challenge may consider whether the government is in fact regulating “speech.” The First Amendment concept of speech includes the written and spoken word and other forms of expression in various mediums (e.g., photographs, videos). The actions of creating or disseminating speech are also forms of speech. So too are editorial functions—the decisions that go into “selecting and shaping other parties’ expression” into one’s “own curated speech product.” Beyond physical material that conveys a message, the concept of speech encompasses certain expressive conduct—that is, conduct “sufficiently imbued with elements of communication” to implicate the First Amendment (e.g., burning a flag in political protest). Although “a narrow, succinctly articulable message is not a condition of constitutional protection,” a court is more likely to consider conduct to be sufficiently communicative (and thus within the First Amendment’s ambit) if the actor intends to “convey a particularized message” and that message would likely be understood by those who view it.

The line between non-expressive conduct and speech—though sometimes blurry—can determine whether and to what degree a court scrutinizes a law or government action for consistency with the First Amendment. A law that primarily restricts non-expressive conduct may not trigger First Amendment scrutiny at all. In such circumstances, a court may determine whether the law has a “rational basis,” or it may hold that there is no First Amendment violation without invoking that standard. By comparison, a law that regulates pure speech or “inherently expressive” conduct is likely to receive First Amendment scrutiny. Between these two poles are more subtle regulations of speech, such as laws that restrict conduct with expressive and non-expressive elements, actions in which the government applies a conduct-focused law to restrict or punish speech because of its message, or laws that have the “inevitable effect” of disproportionately burdening certain speakers. The Supreme Court has also recognized the possibility that a law can “impose a significant burden on expressive activity” even if it does not expressly prohibit speech. This concept of chilling speech refers to the idea that even though individuals might want to engage in constitutionally protected speech, a law that is vague, overbroad, or creates significant barriers to speech could cause them to “curtail their expression.”

After deciding that a case likely involves speech, the next question a court might consider is whether the First Amendment protects the particular type of speech at issue. Courts often refer to speech as “protected” or “unprotected,” but the label is not always determinative of the constitutionality of the challenged law or government action. Most private speech is protected in the sense that government regulation of that speech would at least raise a constitutional question and likely warrant First Amendment scrutiny if challenged in court. The Supreme Court has, however, recognized certain historically rooted “unprotected” categories of speech, such as defamation or fraud. The government usually can penalize such unprotected speech consistent with the First Amendment. Laws aimed at these narrow categories of speech might trigger First Amendment scrutiny, however, if they reach protected speech or draw impermissible content-based distinctions. For example, in R.A.V. v. City of St. Paul, the Supreme Court struck down a local law construed to prohibit “fighting words,” an unprotected category of speech, because the law reached only those fighting words “that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.'” The Court reasoned that singling out fighting words based on the ideas they communicate violated a fundamental precept that the government cannot restrict speech because it disagrees with the message conveyed.

Even if a law or government action reaches protected speech, there is no one-size-fits-all test that courts apply in all contexts to analyze whether the law or action is constitutional. The Supreme Court has adopted several “means-end” tests (called levels of scrutiny), as well as additional legal standards to govern particular claims and scenarios. Accordingly, after deciding that a case involves protected speech, the next step in a First Amendment analysis is often to determine which level of scrutiny or legal standard applies. The answer to that question can depend on the kind of protected speech being regulated and additional factors, such as where the speech occurs and the way the law operates. For example, commercial speech, while protected, typically receives a lower level of scrutiny than other forms of protected speech.

Levels of Scrutiny and Key Concepts

Most often, a court adjudicating a free speech challenge will analyze the constitutionality of a law or government action by applying a level of scrutiny derived from the Supreme Court’s First Amendment precedents. The two most common levels of scrutiny in free speech analysis are strict and intermediate scrutiny. Strict scrutiny generally applies to laws that regulate speech on the basis of its content or message. It is a “demanding standard” that the government is rarely able to meet. Intermediate scrutiny has several different formulations but generally applies to content-neutral laws and commercial speech restrictions. Intermediate scrutiny too presents a high bar for the government, but regulations of speech are more likely to survive intermediate than strict scrutiny. To varying degrees, each level of scrutiny requires the government to prove that it has a sufficiently important interest in regulating the speech at issue and that the law directly advances and is narrowly tailored to that interest.

While laws that fail strict or intermediate scrutiny often do so on lack-of-tailoring grounds, the government sometimes fails to show that its interests are “real” and “not merely conjectural.” For example, it may be insufficient for the government to cite an interest that is significant in the abstract if the government lacks evidence of a concrete harm threatening that interest. For “prophylactic” speech restrictions in particular, the government must “demonstrate that it is regulating speech in order to address what is in fact a serious problem and that the preventative measure it proposes will contribute in a material way to solving that problem.

For more information on the levels of scrutiny and other key First Amendment concepts, readers of this report’s HTML and PDF formats can click on a term or phrase in the text box titled “Free Speech Terminology” to navigate to a discussion of that concept.

Strict Scrutiny

Strict scrutiny generally applies to content-based laws—laws that regulate speech on the basis of its subject matter, topic, or substantive message. A law can be content based on its face or in its design or purpose. The Supreme Court considers viewpoint discrimination—distinctions based on a “specific motivating ideology,” opinion, or perspective—to be “an egregious form of content discrimination.” For this reason, courts sometimes invalidate viewpoint-based laws summarily, without undertaking a strict scrutiny analysis.

Under strict scrutiny, the government must prove that its law is narrowly tailored to advance a compelling governmental interest and that the law is the least restrictive means of serving that interest. While not an exhaustive list, the Supreme Court has identified the following interests as compelling, at least in certain contexts:

• “national security”;
• “public confidence in judicial integrity”;
• “protecting the physical and psychological well-being of minors”;
• “ensur[ing] the basic human rights of members of groups that have historically been subjected to discrimination”;
• “eradicating discrimination against a state’s female citizens”; and
• “depriving criminals of the profits of their crimes, and in using these funds to compensate victims.”

Both strict and intermediate scrutiny require narrow tailoring, meaning that the government must “pursue its legitimate interests through ‘means that are neither seriously underinclusive nor seriously overinclusive.'” The precise degree of tailoring required under each standard differs. Under strict scrutiny, the challenged law or action must be the “least restrictive means” of satisfying the government’s compelling interest. In other words, if a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.”

Intermediate Scrutiny

Intermediate scrutiny typically applies to content-neutral laws and commercial speech restrictions, albeit following different lines of Supreme Court precedent. A law is content neutral if it “serves purposes unrelated to the content of expression” and does not, on its face, regulate speech based on its subject matter, topic, or viewpoint.

The Supreme Court has established an intermediate scrutiny standard for content-neutral time, place, or manner regulations. Specifically, the Court has held that “expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions,” such as a regulation to control the volume of music played at a bandshell in a public park. Time, place, or manner restrictions “are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

A similar test set out in United States v. O’Brien is used to evaluate restrictions on certain types of expressive conduct, such as “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct.”

Intermediate scrutiny is also the standard applied to commercial speech restrictions. Commercial speech is (1) speech that “does no more than propose a commercial transaction” (e.g., an advertisement for a product or service); or (2) “expression related solely to the economic interests of the speaker and its audience.” To sustain a restriction on lawful, nonmisleading commercial speech, the government must meet the standard set out in Central Hudson Gas and Electric Corp. v. Public Service Commission. Specifically, the government must show that its law “directly advances” a “substantial” governmental interest and is narrowly tailored—that is, “not more extensive than necessary”—to serve that interest.

Examples of substantial or important governmental interests include

• protecting the public from deceptive and misleading trade practices;
• “maintaining standards of ethical conduct in the licensed professions”;
• “energy conservation”;
• preventing “quid pro quo” corruption or its appearance in election campaigns; and
• “promoting fair competition in the market for television programming.”

The tailoring requirement for intermediate scrutiny is less rigorous than for strict scrutiny. Under intermediate scrutiny, a law “need not be the least restrictive or least intrusive means” of advancing the government’s interest. Nevertheless, the government “still ‘may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.'” Narrow tailoring for commercial speech restrictions, for example, requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.”

Table 1 summarizes the strict and intermediate scrutiny standards.

Other Tests for Determining Compliance with the Free Speech Clause

Strict and intermediate scrutiny are not the only tests used in free speech cases. The Supreme Court has developed additional tests for specific contexts and to account for different types of regulations. For example, another form of scrutiny called exacting scrutiny is often used to evaluate campaign finance disclosure requirements.

Although most regulations of commercial speech are subject to intermediate scrutiny, there are exceptions. Certain commercial disclosure requirements are subject to a less-stringent standard of review under Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio. Application of Zauderer requires, at a minimum, that the disclosure involves “purely factual and uncontroversial information” about the regulated entity’s own products or services. If these criteria are met, then the disclosure requirements need only be “reasonably related” to preventing consumer deception (or, in some jurisdictions, another sufficient government interest) and not “unjustified or unduly burdensome.” Additionally, the government generally can restrict commercial speech that concerns illegal activity or that is inherently misleading without having to satisfy either intermediate scrutiny or Zauderer review. By comparison, the Supreme Court has suggested that a law that singles out particular commercial speech and speakers for disfavored treatment may warrant “heightened judicial scrutiny” based on the broader principle that the government cannot restrict speech because of disagreement with the message it conveys.

The Supreme Court has also developed specific legal standards for particular forums or circumstances. These standards are discussed in the “Special Contexts” section of this report.

Types of Free Speech Challenges

First Amendment challenges can take multiple forms. A party can challenge a law’s validity on its face (facial challenge) or as applied to their speech activity (as-applied challenge). As-applied cases are more common because “courts usually handle constitutional claims case by case, not en masse.” Both facial and as-applied challenges can be based on different theories of constitutional invalidity. For example, the Supreme Court has recognized a type of facial free speech challenge based on a statute’s overbreadth—essentially, that a law aimed at non-expressive conduct or unprotected speech reaches too much protected speech when compared to its permissible scope. Additionally or alternatively, a litigant might argue that a speech restriction is unconstitutionally vague or imposes an impermissible prior restraint on speech. Each type of challenge carries its own legal standards, as discussed below.

The proponents and timing of free speech challenges can vary too. Defendants have raised the First Amendment as a defense in response to civil litigation, criminal prosecutions, or administrative enforcement actions. Plaintiffs have raised free speech challenges in the pre-enforcement context, on the basis that the threat of enforcement chills the exercise of their or others’ free speech rights. Plaintiffs have also sought monetary damages from the government for interference with their free speech rights, such as through a claim for First Amendment retaliation. The timing of a free speech challenge can raise questions of justiciability—that is, the court’s authority to hear the dispute—which are beyond the scope of this report but are addressed in other CRS products. For simplicity, this section of the report uses the term “claim” to encompass the various forms of First Amendment challenges.

Facial Challenge

A facial challenge occurs when a party claims that a law violates the First Amendment “on its face.” The judicial remedy may include a declaration that the law, or a portion of the law, is invalid. The government may not lawfully enforce any provisions that a court has held facially unconstitutional. A court’s rejection of a facial challenge does not necessarily preclude other litigants from succeeding on an as-applied challenge.

From the Supreme Court’s perspective, “facial challenges are disfavored.” First, “‘claims of facial invalidity often rest on speculation’ about the law’s coverage and its future enforcement.” Second, “‘facial challenges threaten to short circuit the democratic process’ by preventing duly enacted laws from being implemented in constitutional ways.” For these reasons, the Court considers facial invalidation of a law to be a “last resort” that courts should employ “sparingly.” The Court has also “made facial challenges hard to win.”

Facial First Amendment challenges can be based on a law’s overbreadth, vagueness, or prior restraint of speech (discussed below). The Court has not applied a uniform standard to evaluate such cases, though it clarified the test for a facial overbreadth claim in a 2024 decision. Rather, each of these theories carries its own set of legal tests and presumptions. It can be difficult to tell how these legal standards dovetail with the levels of scrutiny developed to evaluate free speech challenges to content-based or content-neutral laws. In some cases, the Court appeared to combine principles from more than one test, while in other cases, it applied an unmodified strict or intermediate scrutiny standard to decide whether a law facially violated the First Amendment. Accordingly, the precise test used to evaluate a facial free speech challenge may depend on how the litigants and the reviewing court frame the issue.

As-Applied Challenge

A party bringing an as-applied challenge alleges that a law or government action violates the Free Speech Clause as applied to its activity or intended activity, instead of asserting that the law as a whole violates the First Amendment. In an as-applied challenge, a court usually limits its judgment and any remedies to the parties or set of circumstances before the court. Accordingly, a court’s disposition might allow the government to continue enforcing the law with respect to other parties or contexts.

Figure 1 illustrates the typical analysis that a court might follow in an as-applied challenge to determine the applicable level of First Amendment scrutiny. A court might also apply the analysis in Figure 1 in a facial challenge to decide which applications of a law would comply with the Free Speech Clause. As different legal standards might apply in particular contexts, it may be helpful for readers to begin by skimming the “Special Contexts” section of this report to determine whether any of the listed scenarios might apply to one or more of the speech regulations in the legislative proposal under consideration.

While the number and order of steps may vary, a court might begin its analysis by considering whether the case implicates the Free Speech Clause at all, asking whether the law involves non-expressive conduct or speech. At the second step of the inquiry, a court might ask whether the speech at issue is protected or unprotected. In an as-applied challenge, a court might focus on the nature of the challenger’s speech or the government’s reasons for applying the law to that speech, whereas in a facial challenge, a court might first need to determine the scope of the law in question and then evaluate its various applications. As reflected in the third step of Figure 1, a court might then ask whether the law at issue is content based or content neutral.

Overbreadth Claim

In constitutional law, a facial challenge usually requires the objecting party to show that the law is invalid in all of its applications or “lacks any ‘plainly legitimate sweep.'” In free speech cases, however, the Supreme Court has recognized a “less demanding though still rigorous standard” for the objecting party to satisfy in the context of an overbreadth claim. An overbreadth claim may arise in situations when a law aimed at non-expressive conduct or unprotected speech nonetheless reaches protected expression. In an exception to judicially recognized limits on standing, a litigant can raise an overbreadth claim even if the government could constitutionally apply the law to the litigant’s own speech. This, according to the Supreme Court, is because facial overbreadth challenges are “not primarily for the benefit of the litigant, but for the benefit of society—to prevent the statute from chilling the First Amendment rights of other parties not before the court.” If a court holds that a law violates the overbreadth doctrine, that holding normally “suffices to invalidate all enforcement of that law”—at least “until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.”

To succeed on an overbreadth claim, a litigant must show that the law “prohibits a substantial amount of protected speech” in relation to its “plainly legitimate sweep.” The Supreme Court clarified some aspects of this overbreadth test in its 2024 decision in Moody v. Netchoice, LLC. That opinion addressed separate challenges to two state social media laws that restricted private online platforms from removing or deprioritizing user content in certain ways. Trade associations representing the interests of some of the regulated companies raised facial First Amendment challenges to the laws. The Supreme Court held that the lower courts failed to apply the correct overbreadth analysis and remanded for further consideration under the appropriate standard. In its opinion, the Supreme Court used two different formulations of the overbreadth test, asking whether the laws would prohibit “a substantial amount of protected speech” and whether “a substantial number of the laws’ applications are unconstitutional.” The Court emphasized that lower courts and litigants may not focus solely on the “heartland applications” of a challenged law. Instead, courts must “address the full range of activities the law covers, and measure the constitutional against the unconstitutional applications.”

The Moody opinion will likely influence how lower courts conduct an overbreadth analysis in future cases. For example, it might not suffice for a court to find that a law regulates significantly more protected speech than unprotected speech or conduct. Because the government can regulate protected speech under some circumstances, a court might also need to decide whether the particular regulation of protected speech would be constitutional. In practice, the Moody decision could mean that a court reviewing an overbreadth challenge must

• determine all the ways in which the challenged law could be applied;
• for each potential application that could reach protected speech, decide what level of scrutiny or specific First Amendment test applies;
• apply that First Amendment standard to determine whether the particular application of the law would be constitutional or unconstitutional; and
• compare all of the results to determine “if the law’s unconstitutional applications substantially outweigh its constitutional ones.”

The Supreme Court in Moody did not identify which party bears the burden of proof at each stage of this process. In past cases, a party raising a facial challenge bore the burden of proving that the law reached a substantial amount of protected speech. The Court in Moody appeared to confirm that, generally speaking, the burden to demonstrate overbreadth rests with the challenger. By comparison, the strict and intermediate scrutiny tests require the government to prove that the challenged law is narrowly tailored to serve a compelling governmental interest. This tension suggests that some burden-shifting may take place in future overbreadth cases.

While the Supreme Court has cautioned that invalidation of a law for overbreadth is “strong medicine,” it has dispensed this remedy in some cases. For example, in 2010, the Court held unconstitutional a federal law criminalizing the commercial creation or sale of depictions of animal cruelty after concluding that the “presumptively impermissible applications” of the law “far outnumbered any permissible ones.” The Court reasoned that the law could prohibit not only animal fighting videos but also recreational hunting videos. By contrast, in 2023, the Court rejected an overbreadth challenge to a federal statute that made it a crime to “encourage or induce” an immigration law violation. The Court construed the operative language narrowly to apply only to non-expressive conduct and speech integral to criminal conduct (one of the “unprotected” categories of speech). Based on this reading, the Court concluded that the law had “a wide legitimate reach” and that “the ratio of unlawful-to-lawful applications” was “not lopsided enough to justify the ‘strong medicine’ of facial invalidation for overbreadth.”

Vagueness Claim

Vagueness is a type of claim ordinarily raised under the Due Process Clause of the Fifth Amendment (for federal laws) or the Fourteenth Amendment (for state laws), particularly in challenges to criminal laws, convictions, or penalties. Vagueness generally refers to uncertainty about who is covered by a law or what standard the government will use to “ascertain guilt.” An unconstitutionally vague law violates due process principles because it fails to provide “fair notice” of the conduct prohibited.

Vagueness poses a special problem for laws that regulate speech because vague laws have the potential to chill protected expression. According to the Supreme Court, “[u]ncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.'” Accordingly, litigants in First Amendment cases sometimes assert vagueness as an additional basis for challenging a speech restriction or penalty. Even if a speech restriction is not void for vagueness as a matter of due process, ambiguous terms regarding the law’s coverage may render the law unconstitutional under applicable First Amendment standards. Thus, vagueness can be a First Amendment defect even if it does not rise to the level of a due process violation.

The Supreme Court has recognized two ways in which a law regulating speech can be unconstitutionally vague: first, if the law “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits”; and second, if the law “authorizes or even encourages arbitrary and discriminatory enforcement.” A law is not impermissibly vague just because it lacks “perfect clarity and precise guidance.” Nor is a law vague because there is some uncertainty about how it might apply in “close cases.” Instead, a law may be vague if it sets out an “indeterminant” legal standard or one that relies on “wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings.” For example, in 1971, the Court held that an ordinance making it a crime for people to “assemble” on city sidewalks and “conduct themselves in a manner annoying to persons passing by,” was unconstitutionally vague on its face. The Court reasoned that “conduct that annoys some people does not annoy others,” so the ordinance essentially supplied “no standard of conduct . . . at all.”

A vagueness claim can be styled as either a facial or an as-applied challenge. To succeed on a facial vagueness claim, “the complainant must demonstrate that the law is impermissibly vague in all of its applications.” While not completely foreclosing relief under a facial challenge, the Supreme Court has urged lower courts to evaluate vagueness claims on an as-applied basis because “a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”

Prior Restraint Claim

Penalties for engaging in speech activity are typically imposed only after the defendant has had a chance to contest the allegations or offer any defenses through a criminal, civil, or administrative process. By comparison, a prior restraint on speech occurs when the government “forbids certain communications” before they occur or requires a private person to obtain the government’s permission before speaking. In a system of prior restraints, the government might review the intended message for compliance with government-imposed standards and decide whether to allow publication of the speech.

While the First Amendment limits both “previous restraint” and “subsequent punishment” of speech, prior restraints are an “especially condemned” form of speech infringement because they closely resemble the “official censorship” that the Framers of the Bill of Rights sought to prevent. A law that requires a speaker to obtain a license before engaging in speech is a classic example of a prior restraint. According to the Supreme Court, the First Amendment was directed at the “core abuse” of prepublication licensing laws in 16th- and 17th-century England, whereby the government “prescribed what could be printed, who could print, and who could sell.” Still, the Supreme Court has recognized that the government has interests in licensing particular businesses or professions for regulatory purposes such as health and safety that are unrelated to the suppression of free speech. Accordingly, not all licensing schemes raise the same level of censorship concerns.

Prior restraints can also take the form of a court order, such as an injunction restricting the publication of specific information or prohibiting private parties from engaging in speech on a particular topic in the future. Additionally, the Supreme Court has recognized that, although not prior restraints “in the strict sense of that term,” regulatory schemes that effectively require private persons to seek agency advisory opinions before they can speak can raise similar concerns.

Procedurally, a litigant can raise a prior restraint argument in either a facial or an as-applied challenge. If a law is a prior restraint, raising the types of concerns discussed above, a reviewing court might subject the law to strict scrutiny or ask whether it contains certain procedural safeguards. In particular, if a prior restraint involves a content-based restriction on speech or gives a licensing official “unduly broad discretion,” courts might, among other safeguards, require the government to promptly go to court and prove the constitutionality of the restraint. Thus, although prior restraints come with a “heavy presumption” of invalidity, they are not automatically unconstitutional.

Special Contexts

In addition to the legal standards discussed above, the Supreme Court has developed special tests or factors for consideration when the government seeks to regulate speech in particular contexts. While not an exhaustive list, the sections below describe some of the main areas where free speech standards have developed to accommodate a particular context, including links to CRS products that discuss these legal standards in more detail. The special rules or limiting principles associated with “unprotected” categories of speech (e.g., defamation) are beyond the scope of this section.

Campaign Finance

Campaign finance regulations can take multiple forms, including contribution and expenditure limits, source restrictions for contributions, and disclosure and disclaimer requirements. Such regulations implicate political speech and association and have often triggered First Amendment scrutiny when challenged in court. The Supreme Court has applied different levels of scrutiny depending on the type of regulation at issue. For example, limits on independent expenditures in support of a candidate would likely receive strict scrutiny. By limiting the “amount of money a person or group can spend on political communication during a campaign,” limits on independent expenditures can “reduce the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” By comparison, disclosure requirements for political committees would likely receive a form of exacting scrutiny because although they “may burden the ability to speak,” they “impose no ceiling on campaign-related activities” and “do not prevent anyone from speaking.”

Compelled Subsidization

When the government is speaking for itself through a regulatory program, it generally can require its citizens to help finance that message without violating the First Amendment. By comparison, the government typically may not require a person to contribute monetarily to a private group that engages in expressive activity that conflicts with that person’s beliefs. The Supreme Court has opined that compelled subsidies of this nature are “closely related” to compelled speech and compelled association and pose similar First Amendment concerns. For example, in Janus v. AFSCME, Council 31, the Supreme Court held that compulsory agency fees collected by public-sector unions violated the First Amendment. The Court declined to decide whether strict scrutiny applied to such arrangements, because it concluded that the law failed an exacting scrutiny standard derived from earlier precedents.

Government Programs or Funding

In general, the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” Accordingly, requirements that restrict or compel the speech of government grantees, beneficiaries, or program participants might be challenged as an “unconstitutional condition” on government funding.

Although the Court has not announced a universal standard to apply in all unconstitutional conditions cases, it has identified some overarching principles in the context of government programs and funding arrangements. For instance, the government may “selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program”—even if those programs are carried out through speech. Additionally, the government may make content-based (and sometimes viewpoint-based) distinctions within the contours of its own programs. The government may not, however, leverage funding to control private speech outside of its sponsored programs.

Government Property and Public Forums

When it comes to government-owned or government-controlled property, the degree to which the government can regulate speech may depend on the type of forum at issue. A forum can be a physical space or a “metaphysical” one.

The Supreme Court has identified at least three types of forums for purposes of First Amendment analysis. In a traditional public forum such as a public street, sidewalk, or park, content-neutral time, place, or manner restrictions must satisfy intermediate scrutiny, whereas content-based restrictions must satisfy strict scrutiny. The same rules apply in a designated public forum: a forum the government opens “for use by the public as a place for expressive activity.” Thus, traditional standards of First Amendment scrutiny generally apply in public or designated public forums.

By comparison, the government has more leeway to restrict the speakers admitted to, and content presented in, a nonpublic forum—property that the government has not intentionally designated as a place for public communication. A restriction on access to a nonpublic forum must be “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”

A possible fourth category is the limited public forum. In Walker v. Texas Division, the Court suggested that a limited public forum was a distinct category from a designated public or nonpublic forum, stating that a limited public forum is created when the government “has ‘reserv[ed a forum] for certain groups or for the discussion of certain topics.'” However, the Walker Court did not explain which test applies to limited public forums. In other cases, the Court has used the term in ways synonymous with both designated public forums and nonpublic forums.

Intellectual Property

Intellectual property law routinely involves speech, including copyrighted works and trademarks. While not immune from First Amendment scrutiny, copyright and trademark law also contain unique features that help serve to balance free speech and intellectual property interests. For example, copyright law includes “built-in First Amendment accommodations,” such as the statutory “fair use” defense to a copyright infringement claim. That defense protects certain uses of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research.” Similarly, when a person uses another’s trademark without permission to denote the source of goods or services, the “likelihood-of-confusion inquiry” for evaluating trademark infringement claims typically “does enough work to account for the interest in free expression,” without applying a separate First Amendment test.

The presumption of unconstitutionality for content-based laws applies differently in the trademark context. In its 2024 decision in Vidal v. Elster, the Supreme Court explained that “because of the uniquely content-based nature of trademark regulation and the longstanding coexistence of trademark regulation with the First Amendment, we need not evaluate a solely content-based restriction on trademark registration under heightened scrutiny.” As a result, the government may deny trademark registration in some circumstances because of a mark’s subject matter or topic, though viewpoint-based distinctions are still prohibited.

Prisons

Under the First Amendment, the government generally has more leeway to regulate inmates’ speech and access to information within correctional facilities. The Court has recognized this latitude in light of the broader limitation on rights and privileges that incarceration brings and because of the “legitimate policies and goals of the corrections system.” Still, an incarcerated individual “retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” In Turner v. Safley, the Court set out a reasonableness standard of review for a prison regulation that burdens inmates’ free speech rights. Such a regulation “is valid if it is reasonably related to legitimate penological interests,” with reasonableness assessed by four factors set out in Turner.

Public Employment

Under First Amendment case law, the government has greater constitutional authority to regulate the speech of its employees than it does the citizenry in general. A free speech question might arise if a government employer disciplines or fires an employee based on the employee’s speech. A reviewing court faced with a First Amendment retaliation claim in such a case would first ask whether the employee’s speech was entitled to First Amendment protection by considering whether the employee was speaking “as a citizen” rather than pursuant to the employee’s official duties, and on “a matter of legitimate public concern.” If the court answers both questions affirmatively, then First Amendment protections apply and the court typically applies a balancing test outlined in Pickering v. Board of Education to determine whether the government can restrict the speech. Under this test, the court balances the employee’s interests as a citizen against the government’s interests as an employer “in promoting the efficiency of the public services it performs through its employees.” Different legal standards might apply outside of the context of individual retaliation claims; for example, prophylactic restrictions on public employees’ speech or political activities might trigger more stringent scrutiny.

Schools

The First Amendment applies to speech regulations at public schools because state and local governments own or operate these schools and because teachers and students have First Amendment rights. At the same time, public primary and secondary schools (e.g., elementary, middle, and high schools) can restrict student speech in some circumstances “in light of the special characteristics of the school environment.” In other words, a “school need not tolerate student speech that is inconsistent with its ‘basic educational mission,’ . . . even though the government could not censor similar speech outside the school.”

The Supreme Court established one of the primary frameworks for evaluating school speech restrictions in Tinker v. Des Moines Independent Community School District. In Tinker, the Court considered a public high school’s policy that prohibited students from wearing black armbands, which at that time signified opposition to U.S. involvement in the Vietnam War. The Court stated that in order for the school “to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” The Court held that the policy violated the First Amendment because the school had no evidence that displaying these armbands would cause “substantial disruption of or material interference with school activities.”

Tinker‘s “substantial disruption” standard is not the only basis for upholding regulations restricting student speech. In a 2021 decision, the Court identified “three specific categories of student speech that schools may regulate in certain circumstances” as a result of the Court’s post-Tinker case law:

(1) “indecent,” “lewd,” or “vulgar” speech uttered during a school assembly on school grounds; (2) speech, uttered during a class trip, that promotes “illegal drug use”; and (3) speech that others may reasonably perceive as “bearing the imprimatur of the school,” such as that appearing in a school-sponsored newspaper.

Thus, while the Court in Tinker found a First Amendment violation, its reasoning paved the way for more deferential treatment of school speech restrictions.

Whether Tinker and its progeny govern regulations of speech at public institutions of higher education (i.e., colleges and universities) is somewhat uncertain. On the one hand, the Supreme Court has cited principles from Tinker in cases involving public colleges and universities. On the other hand, the Court has recognized the role of these institutions in facilitating free debate, opining that “the college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.'” In one opinion, the Court suggested that while Tinker might apply to “reasonable rules governing conduct,” disciplinary actions against university students based on disfavored speech would be subject to traditional First Amendment scrutiny. According to the Court, “the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech.”

Zoning of Sexually Oriented Businesses

In the 1980s, the Supreme Court developed the “secondary effects” doctrine in zoning cases involving the location of adult theatres depicting sexually explicit movies. Under this doctrine, if an ordinance is aimed at the “secondary effects” of such businesses on the local community (e.g., crime, property values), rather than suppressing the expression that the businesses purveyed, a court may apply the intermediate scrutiny standard applicable to content-neutral time, place, or manner regulations.

In subsequent decisions, the Court has suggested that the secondary effects doctrine might not apply outside of the zoning context. When the Court decided Reed v. Town of Gilbert in 2015, it held that facially content-based laws warrant strict scrutiny “regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” That case involved a town sign code that restricted the display of signs to varying degrees based on a sign’s topic or message. Despite these developments, as of the date of this report, the Court has not formally overruled its secondary effects cases.

Related First Amendment Rights

Free speech claims are sometimes brought alongside claims that the government violated other rights enshrined in the First Amendment. Those rights are the free exercise of religion (and the bar on government establishment of religion), the freedom of the press, the right to peaceably assemble, and the right to petition the government for a redress of grievances. The Supreme Court has also recognized the right of association as an implicit corollary to the freedom of speech, covering not only expressive association but also certain forms of intimate association. As First Amendment rights can be intertwined in some cases, the Supreme Court has sometimes addressed multiple First Amendment interests through a single legal framework.

The Liberal Assault on Freedom of Speech

America has less freedom of speech today than it has ever had in its history. Yet it is widely believed that it has more. Liberal law professor Archibald Cox has written: “The body of law presently defining First Amendment liberties” grew out of a “continual expansion of individual freedom of expression.” Conservative constitutional scholar Walter Berns agrees: “Legally we enjoy a greater liberty [of speech] than ever before in our history.” Both are wrong.

Liberals and libertarians applaud what Cox, Berns, and others perceive as an expansion of free speech. Conservatives sometimes deplore it, rightly assuming that the expansion in question leads to greater scope for nude dancers, pornographers and flag burners. But from the point of view of the original meaning of free speech, our speech today is much less free than it was in the early republic.

Campaign Finance Regulation

In 1974, for the first time in American history, amendments to the Federal Elections Campaign Act (FECA) made it illegal in some circumstances for Americans to publish their opinions about candidates for election. Citizens and organizations who “coordinate” with a candidate for public office were prohibited from spending more than a set amount of money to publish arguments for or against a candidate. Those who “coordinate” with a candidate are his friends and supporters. In other words, publication was forbidden to those with the greatest interest in campaigns and those most likely to want to spend money publishing on behalf of candidates.

The Bipartisan Campaign Reform Act of 2002 goes well beyond the 1974 law, imposing substantial limits on the right of political parties and nonprofit organizations to publicize their views on candidates during election campaigns. Imagine the shock of the Founders if they were here to see that government was heavily into the business of banning private citizens from pooling their fortunes to publicize their opinions about candidates for elections.

These laws do contain a notable exception. Newspaper owners may spend as much money as they wish publishing arguments in support of candidates with whom they “coordinate.” This solitary exemption from restrictions on free speech is, of course, no mistake: The dominant newspapers in America are liberal, and the 1974 law was passed by a Democratic Congress on the day before Richard Nixon resigned in disgrace from the presidency.

Campaign finance regulation stands in direct opposition to the Founders’ understanding of the First Amendment. For a large class of people, it effectively prohibits and punishes the most important thing that the right to free speech is supposed to guarantee: open discussion of candidates and issues at election time.

Those who favor campaign finance regulation sometimes claim that their primary concern is with “corruption and the appearance of corruption”—that is, what used to be called bribery or the appearance of bribery. But that is not the real agenda of the reformers. There is a good reason why the 2002 Act, like the 1974 law, was voted for by almost every House and Senate Democrat, and opposed by a large majority of Republicans: These laws are primarily about limiting the speech of conservatives.

Here are some quotations from the 2002 congressional debate:

Sen. Maria Cantwell (Dem.-Wash.): “This bill is about slowing the ad war…It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves.”

Sen. Barbara Boxer (Dem.-Calif.): “These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… We have an opportunity in the McCain-Feingold bill to stop that.”

Sen. Paul Wellstone (Dem.- Minn.): “I think these issue advocacy ads are a nightmare. I think all of us should hate them… [By passing the legislation], [w]e could get some of this poison politics off television.”

In other words, the law makes it harder for citizens to criticize liberal politicians when they disagree with their policy views.

Some congressmen were willing to be even more open about the fact that the new law would cut down on conservative criticism of candidates. Rep. Jan Schakowsky (Dem.-Ill.) said: “If my colleagues care about gun control, then campaign finance is their issue so that the NRA does not call the shots.” Democratic Reps. Marty Meehan (Mass.) and Rosa DeLauro (Conn.), and Democratic Sens. Harry Reid (Nev.) and Dick Durbin (Ill.) also cited the National Rifle Association’s political communications as a problem that the Act would solve. Several liberal Republicans chimed in.

What this means is that government is now in the business of silencing citizens who believe in the Second Amendment right to keep and bear arms.

Sen. Jim Jeffords (Ind.-Vt.) said that issue ads “are obviously pointed at positions that are taken by you, saying how horrible they are.” “Negative advertising is the crack cocaine of politics,” added Sen. Tom Daschle (Dem.-S.D.). What these quotations show—and there are many more like them—is that the purpose of campaign finance regulation is to make it harder for conservatives to present their views to the public about candidates and issues in elections.

In its shocking December 2003 decision in McConnell v. Federal Election Commission, the five most liberal members of the Supreme Court upheld this law and saw no conflict with the First Amendment guarantee of freedom of speech and of the press. Yet it is impossible to imagine a more obvious violation of the First Amendment, unless the government were explicitly to authorize the Federal Election Commission to close down conservative newspapers and magazines. In his powerful dissent in the McConnell case, Justice Clarence Thomas wrote:

The chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation of the press. None … of the reasoning employed by the Court exempts the press… What is to stop a future Congress from determining that the press is “too influential,’ and that the “appearance of corruption’ is significant when media organizations endorse candidates or run “slanted’ or “biased’ news stories in favor of candidates or parties? Or, even easier, what is to stop a future Congress from concluding that the availability of unregulated media corporations creates a loophole that allows for easy “circumvention’ of the limitations of the current campaign finance laws?

With the National Rifle Association announcement that it intends to acquire a media outlet in order to get around Congress’s unconstitutional restrictions on issue ads during elections, Justice Thomas’s nightmare might come true even sooner than he anticipated. We are already hearing statements suggesting that any media owned by the NRA will not count as “real” media. At some point, perhaps in the very near future, the Federal Election Commission may find itself deciding which newspapers and broadcast stations are “real” news media (and can therefore be permitted their First Amendment rights) and which ones are “slanted” or “biased” (thus whose First Amendment rights must be denied).

Censorship Through Broadcast Licensing

Reading today’s scholarship on freedom of speech, one would hardly guess that government control over the content of speech through licensing requirements—supposedly outlawed long ago—is alive and well. The amazing ignorance with which this matter is usually discussed today may be seen in the following quote from legal scholar Benno Schmidt, the former president of Yale:

The First Amendment tolerates virtually no prior restraints [on speech or the press]. This doctrine is one of the central principles of our law of freedom of the press… [T]he doctrine is presumably an absolute bar to any wholesale system of administrative licensing or censorship of the press, which is the most repellent form of government suppression of expression…”

Schmidt fails to notice that every radio, television, and cable broadcaster in America is subject to a “wholesale system of administrative licensing,” i.e., the “most repellent form of government suppression of expression.”

Broadcasters have to obtain a license from the Federal Communications Commission. Stations receive licenses only when the FCC judges it to be “in the public interest, convenience, or necessity.” Licenses are granted for a limited period, and the FCC may choose not to renew. The FCC has never defined what the “public interest” means. In the past, it preferred a case-by-case approach, which has been called “regulation by raised eyebrow.”

During most of its history, the FCC consistently favored broadcasters who shared the views of government officials, and disfavored broadcasters who did not.

The first instance of serious and pervasive political censorship was initiated by Franklin Roosevelt’s FCC in the 1930s. The Yankee Radio network in New England frequently editorialized against Roosevelt. The FCC asked Yankee to provide details about its programming. Sensing the drift, Yankee immediately stopped broadcasting editorials in 1938. In order to drive its point home, the FCC found Yankee deficient at license renewal time. They announced,

Radio can serve as an instrument of democracy only when devoted to the communication of information and exchange of ideas fairly and objectively presented… It cannot be devoted to the support of principles he [the broadcaster] happens to regard most favorably… .

In other words, if you want your broadcasting license renewed, stop criticizing Roosevelt.

The FCC soon afterwards made exclusion of “partisan” content a requirement for all broadcasters. It was understood, of course, that radio stations would continue to carry such supposedly “nonpartisan” fare as presidential speeches and “fireside chats” attacking Republicans and calling for expansions of the New Deal. In the name of “democracy,” “fairness” and “objectivity,” the FCC would no longer permit stations to engage in sustained criticism of Roosevelt’s speeches and programs.

In 1949, the FCC announced its Fairness Doctrine. Broadcasters were required “to provide coverage of vitally important controversial issues … and … a reasonable opportunity for the presentation of contrasting viewpoints on such issues.” In practice, the Fairness Doctrine only worked in one direction: against conservatives.

During the Republican Eisenhower years, the FCC paid little attention to broadcasting content, and a number of conservative radio stations emerged. After John Kennedy was elected in 1960, his administration went on the offensive against them. Kennedy’s Assistant Secretary of Commerce, Bill Ruder, later admitted, “Our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.”

This strategy was highly successful. Hundreds of radio stations cancelled conservative shows that they had been broadcasting. The FCC revoked the license of one radio station, WXUR of Media, Pennsylvania, a tiny conservative Christian broadcaster. When WXUR appealed to the courts, one dissenting judge noted “that the public has lost access to information and ideas … as a result of this doctrinal sledge-hammer [i.e., the Fairness Doctrine].” The Supreme Court refused to hear the appeal. It saw no free speech violation in the government shutdown of a radio station for broadcasting conservative ideas.

The government also revoked the license of a television station in Jackson, Mississippi. WLTB was unapologetically and openly opposed to federal civil rights policies at the time, and would introduce NBC’s news reports with this warning: “What you are about to see is an example of biased, managed, Northern news. Be sure to stay tuned at 7:25 to hear your local newscast.” The D.C. Circuit Court ordered the FCC to revoke WLTB’s license. In an outrageous opinion authored by Warren Burger, who was shortly afterward appointed by President Nixon as Chief Justice of the Supreme Court, the Circuit Court demanded in indignant tones that WLTB’s owner be silenced: “After nearly five decades of operation, the broadcast industry does not seem to have grasped the simple fact that a broadcast license is a public trust subject to termination for breach of duty.” Again, the Supreme Court refused to hear the station’s appeal.

Conservatives tried to use the Fairness Doctrine as well, but failed in every case. Liberal author Fred Friendly writes, “After virtually every controversial program [on the major TV networks]—“Harvest of Shame,’…“Hunger in America’ [1960s programs advocating liberal anti-poverty policies]—fairness complaints were filed, and the FCC rejected them all. As FCC general counsel Henry Geller explained, “We just weren’t going to get trapped into determining journalistic judgments…’” In other words, when liberals were on the air, the FCC called it journalism. When conservatives were on the air, the FCC called it partisan and political, and insisted that the liberal point of view be given equal time.

In the 1980s, President Reagan appointed a majority to the Federal Communications Commission, and it abolished the Fairness Doctrine in 1987. The effect was dramatic. Immediately, conservative talk radio blossomed. Rush Limbaugh was the biggest winner. He came along at just the moment when, for the first time since the 1950s, stations could be confident that conservative broadcasting would no longer lead to license renewal problems or Fairness Doctrine complaints and litigation.

The end of the Fairness Doctrine was a tremendous victory for the First Amendment. But it does not mean that broadcast media are now free. The authority of the FCC over broadcasters remains in place. It can be brought back with the full partisan force of the Roosevelt and Kennedy administrations as soon as one party gets control over all three branches of the federal government and chooses to do so.

Harassment Law

For about 25 years, government has required businesses and educational institutions to punish speech that can be characterized as “hostile environment” harassment. This standard is so vague that the question of what constitutes a “hostile working environment” is endlessly litigated. One court ordered employees to “refrain from any racial, religious, ethnic, or other remarks or slurs contrary to their fellow employees’ religious beliefs.” Another court banned “all offensive conduct and speech implicating considerations of race.” Of course, there are some who find any criticism of affirmative action offensive, even racist. Others are offended when someone alludes to his own religious convictions. So this policy, in effect, makes it potentially illegal for employees to say anything about their own religious beliefs or to defend the “wrong” kind of political opinions. UCLA law professor Eugene Volokh has cited a headline in a major business magazine that sums up this denial of free speech in the workplace: “Watch What You Say, or Be Ready to Pay.”

The Founders’ Approach

Let us turn to the original meaning of free speech in the Constitution to see how far we have abandoned the original meaning of that document.

The Declaration of Independence calls liberty an inalienable right with which we are “endowed by our Creator.” As human beings are born free in all respects, they are also born free to speak, write and publish.

Nevertheless, although all human beings possess the same natural right to liberty, the Founders believed there is a law of nature that teaches us that no one has the right to injure another. The most obvious kind of injurious speech is personal libel. Here is a quotation from an early libel case:

[T]he heart of the libeller … is more dark and base than … his who commits a midnight arson… [T]he injuries which are done to character and reputation seldom can be cured, and the most innocent man may, in a moment, be deprived of his good name, upon which, perhaps, he depends for all the prosperity, and all the happiness of his life.

But the Founders knew very well that allowing government to punish abuses of speech is potentially dangerous to legitimate free speech. So they relied on three pillars to secure this right of free speech while setting limits on injurious speech.

First, no speech could be prohibited by government except that which is clearly injurious. Today, as we have seen, noninjurious political and religious speech is routinely prohibited and punished through campaign finance and other laws.

Second, there could be no prior restraint of speech. Government was not permitted to withhold permission to publish if it disapproved of a publisher or his views. Today, the media from which most Americans get their news is subject to a government licensing scheme that is strikingly similar to the system by which England’s kings kept the press in line in the sixteenth and seventeenth centuries.

Third, injurious speech had to be defined in law, and punishment of it could only be accomplished by due process of law. Guilt or liability could be established only by juries—that is, by people who are not government officials. Today, clear legal standards, formal prosecutions and juries are mostly avoided in the convoluted censorship schemes employed by government in broadcasting law, campaign finance law, harassment law and the like.

As an aside, I mention one other area where the dominant view today is opposed to the older view. The Founders viewed prohibition of obscene or pornographic materials in the same light as the regulation of, e.g., sexual behavior and public nudity. Sex is by its nature connected to children. The political community cannot be indifferent to whether and how children, its future citizens, are generated and raised. That is why the laws prohibited or discouraged nonmarital sex such as premarital sex, homosexuality and adultery. Obscene words or pictures were banned because they tended to promote the idea of sex apart from marriage and children, dehumanizing sex by making men and women into “sex objects.”

Today’s Liberal View

Why have liberals rejected the Founders’ idea of free speech?

The Founders looked toward a society in which each person’s right to life, liberty, property, free exercise of religion, and pursuit of happiness would be protected by government. Except for sex, marriage, and other matters connected with the generation of children, and injuries to persons or property, government would be mostly indifferent to the manner in which citizens lived their private lives. Laws would protect everyone’s rights equally, but it was understood that equal rights lead to unequal results, because of differences in talent, character and luck. About a century ago, liberals began to argue that the Founders’ view, which is embodied in the Constitution, is unjust in two ways.

First, they argued that by protecting everyone’s property equally, government in effect sides with the rich against the poor. It protects the rich and leaves the poor open to oppression. It is not enough, in the liberal view, for government to be neutral between business and labor, between men and women, between whites and racial minorities, and so on. In each case, liberals say, justice requires that government must put burdens on the rich and powerful and give special advantages to the weak and vulnerable.

Applied to free speech, the liberal view leads to the conclusion that government must limit spending by those who can afford to publish or broadcast their views. As University of Chicago law professor Cass Sunstein writes, the traditional autonomy of newspapers “may itself be an abridgment of the free speech right.” Government interference with broadcasting content through FCC licensing is from this standpoint a positive good for free speech. Without it, rich white males will dominate, and the poor, women and minorities will be marginalized and silenced. Therefore, in the liberal view, speech rights must be redistributed from the rich and privileged to the poor and excluded.

University of Maryland professor Mark Graber endorses this view: “Affluent Americans,” he writes, “have no First Amendment right that permits them to achieve political success through constant repetition of relatively unwanted ideas.” In other words, if you publish or broadcast “too much,” government has the right, and the duty, to silence you. Yale law professor Stephen Carter agrees: “Left unregulated, the modern media could present serious threats to democracy.” Sunstein calls for a “New Deal for Speech,” in which government will treat speech in exactly the same way as it already treats property, namely, as something that is really owned by government, and which citizens are only permitted to use or engage in when they meet conditions established by government to promote fairness and justice.

Arguments like these are the deepest reason that liberals no longer follow the Constitution, and why Americans today no longer know what the free speech clause really means.

One might raise the objection that these are only law professors. But their view turns out to be squarely in the mainstream. Several candidates for the presidency in 2000 from both political parties (but not George W. Bush) called for much more stringent limitations on free speech in the name of campaign finance reform. One of those candidates, Bill Bradley, proposed a constitutional amendment in 1996 that would have repealed the free speech clause of the First Amendment. Dick Gephardt, the former minority leader of the House of Representatives, has made the same proposal. In the end, even President Bush signed the Bipartisan Campaign Reform Act of 2002.

I am reminded by this of Abraham Lincoln’s remark in the 1850s about those who would read blacks out of the Constitution and the Declaration of Independence: If that view is to prevail, why not move to Russia, he asked, where we can take our despotism unalloyed? Liberals today are on the verge of throwing off all pretense and admitting openly that what they mean by equality is the abolition of liberty.

There is a second reason that today’s liberals see the Founders’ view of free speech as oppressive. The Founders’ regulation of sexually explicit and obscene pictures and words, they believe—like any interference in the sex lives of citizens—stands in the way of the most important meaning of liberty. People must be permitted, in this view, to establish their own way of life and engage in whatever kind of sex they please. A famous passage from a Supreme Court pro-abortion decision sums up this liberal view. It reads, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

The Founders would have replied that we are precisely not free to define our own concept of existence and meaning. God and nature have established the “laws of nature and of nature’s God,” which have already defined it for us. Human beings, Jefferson wrote, are “inherently independent of all but moral law.” If men defy that law, they are not free. They are slaves, at first to their own passions, eventually to political tyranny. For men who cannot govern their own passions cannot sustain a democratic government.

Our task today is to recover the cause of constitutionalism. In doing so, the recovery of a proper understanding and respect for free speech must be a high priority.

Where the Battle Over Free Speech Is Leading Us

The United States is in a speech war. Normally, human beings fight over money or land or love, but that is not what is happening today. Today, people are fighting over words. People’s lives are being damaged and sometimes destroyed not for something they did but for something they said. We live in a society of doxing, trolling, cancelling, sanctioning, slandering, deplatforming, defunding, persecuting, prosecuting, firing, and sometimes killing over the expression of an opinion. A big part of the craziness is that some of the people going to war over words are casting themselves as champions of free speech. It’s the people they are trying to silence, they claim, who are the enemies.

The lord of misrule here is the person you would expect. On January 20th, his first day back in office, Donald Trump issued an executive order titled “Restoring Freedom of Speech and Ending Federal Censorship.” It accused the Biden Administration of chilling speech it disagreed with and announced that

It is the policy of the United States to:

(a) secure the right of the American people to engage in constitutionally protected speech;

(b) ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen;

(c) ensure that no taxpayer resources are used to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen;

(d) identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech.

The President and his Administration then proceeded to ban the Associated Press from certain press events because it did not refer to the Gulf of Mexico as the Gulf of America, sanction law firms that represented clients whose political views the Administration regards as unfriendly, arrest and seek to deport immigrants legally in the United States for opinions they expressed in speech or in print, defund universities for alleged antisemitic speech and leftist bias, sue the Wall Street Journal for libel, extort sixteen million dollars from the corporate owner of CBS because of the way a “60 Minutes” interview was edited, set about dismantling the Voice of America for being “anti-Trump” and “radical,” coerce businesses and private colleges and universities to purge the word “diversity” from their websites, and order the National Endowment for the Arts to reject grant applications for projects that “promote gender ideology.”

After threats from the head of the Federal Communications Commission, a late-night television personality had his show suspended because of some (rather confusing) thing he said about Trump’s political movement. Other media outlets were advised to get in line. Trump has proposed that licenses be withdrawn from companies that air content critical of him. The Administration has opened Justice Department investigations into and yanked security details from people whose political views it dislikes. It has also warned that it may revoke the visas of and deport any foreign nationals who joke about the death of Charlie Kirk. West Point cancelled an award ceremony for Tom Hanks, after having already winnowed its library of potentially offensive books.

The President is suing the Times, which he calls “one of the worst and most degenerate newspapers in the History of our Country,” for libel. (In the initial iteration of the case, the judge threw out the eighty-five-page-long court filing as “decidedly improper and impermissible.”) A top complaint in his lawsuit is that the paper ran its “deranged endorsement” of Kamala Harris on the front page. Apparently, this is tortious behavior. At press conferences, Trump makes noises about investigating reporters whose questions he doesn’t like. (Who’s the snowflake now?)

This is not social shunning. This is not speaking from the bully pulpit. Apart from the libel suits, which the President can add teeth to by threatening regulatory sanctions or by slow-walking mergers and other business deals that require government approval, this is the persecution of people and organizations based on point of view. Much of this is exactly what the Supreme Court has said the First Amendment prohibits the federal government from doing. The Administration is not even pretending to follow the law, let alone its own proclamations about free speech. It’s getting results, so why should it?

Compared with all this, a bunch of college students shouting down the conservative political scientist Charles Murray—an incident at Middlebury College now immortalized through endless retelling—is small potatoes. Somehow, though, in the war of words, college students tend to get the blame. “Charlie Kirk was assassinated while speaking on a college campus,” the president of Barnard College, Laura Ann Rosenbury, wrote in a recent Times opinion piece. “This is a grim moment for higher education, for our country and for freedom of speech. Violence is never a legitimate means of disagreeing with a speaker on a college campus.”

What is she talking about? Neither Kirk nor his alleged shooter was a student. The incident says nothing about tolerance for speakers on college campuses, and it is irresponsible for a college president to suggest that it does. Rosenbury notes disapprovingly that there was a petition to rescind Kirk’s invitation. A petition is classic First Amendment-protected expression. Surely the president of Barnard is not suggesting that students are inciting violence when they sign a petition. She is effectively throwing a bone to the White House, which can claim that Kirk was the victim of academic cancel culture.

As many people have rightly remarked, the response to Kirk’s murder is emblematic of the current hypocrisy. Kirk is being celebrated as a champion of free speech who was willing to debate anyone anywhere and who was killed by someone who could not tolerate his views. At the same time, Kirk’s admirers are campaigning to get people who make negative comments about those views—which are, after all, highly controversial and designedly so—fired from their jobs. And many have been. The Attorney General initially suggested that Kirk’s detractors could be prosecuted for hate speech (which happens to be constitutionally protected). Evidently, saying racist things is not hate speech, but calling someone out for saying racist things is.

All this suggests that Christopher L. Eisgruber’s new book, “Terms of Respect: How Colleges Get Free Speech Right” (Basic), is not ideally timed. Eisgruber is the president of Princeton University. It is a truth universally acknowledged that university presidents should not write books about their own schools, to which they have a fiduciary duty. The terms of their tenure require that they not do or say anything that might damage the school’s reputation or fund-raising capacity. It is therefore impossible for them to comment disinterestedly or openly on topics bearing on their own institutions.

Within the self-censoring limits of the genre, Eisgruber has sensible things to say, maybe too sensible. His main practical point is that, as he puts it, “speech must be both uncensored and regulated.” This seems to mean that we should be in favor of what are called “time, place, and manner” restrictions on campus speech—no chanting in the library, no bullhorns in the quad, and so on. Fair enough. There are all kinds of things you cannot lawfully do in public spaces. The problems arise when you try to draw the line of permissibility, and Eisgruber doesn’t help us much here. His own reactions to speech controversies at Princeton, as he relates them, seem to have been largely seat-of-the-pants. And, so far, reasonably successful.

Eisgruber also believes that speech should conform to norms of civility. “It is possible to believe in free speech and insist that people ought to address one another civilly and politely,” he writes. Again, nice to say. But the right to free speech is intended to protect what the Supreme Court Justice Oliver Wendell Holmes, Jr., called “opinions that we loathe and believe to be fraught with death.” In the free-speech marketplace, “fuck you” is legal tender. But private universities can constrain speech in ways public universities cannot, and, if Princeton wants to impose civility constraints on its students, it may. No one is being forced to go there.

The same is true of the workplace. There is what we might call a free-speech norm in the United States, such that we are sensitive to the suggestion that someone is being penalized—not getting a promotion, say—for things they have said or beliefs they espouse. Most Americans would not want to give up this norm. But it is unenforceable. You have a right to say what you like, but you do not have a right to host a late-night talk show. A lot of campus speech regulation is an effort not to violate this norm, but this is not because students need a “safe space.” It’s because maintaining an ethos of free speech is central to the educational mission. You can’t run Princeton like Disney.

In general, Eisgruber thinks that “free speech is more robust on college campuses than in other sectors of our polarized society” and that “when it comes to getting free speech right, colleges and America’s young people deserve higher marks than they get.” A lot of what look like acts of censorship from the outside, he argues, are actually attempts to negotiate a level playing field.

There may be some whistling past the graveyard here. Many surveys show that college students are fearful of saying something that will alienate them from their peers or invite the disapproval of their instructors. And faculty worry that teaching certain subject matter and texts might offend students and, if students complain, lead to administrative sanctions. The faculty experience has been that administrations often side with the complainers. If this is so, it is because, until recently, the complainers have had agencies on their side that enforce federal anti-discrimination law (Title VI of the 1964 Civil Rights Act, Title IX, and the Americans with Disabilities Act, plus, for public schools, the equal-protection clause of the Fourteenth Amendment). Universities did not want to sanction the professors, but they did want the complaints to go away.

You could say, as Eisgruber does, that campus speech anxieties reflect the polarization in our society as a whole, but the freedom to say what you think is not the essence of most jobs, and it is the essence of liberal education. Without the ability to speak freely, teachers are not educating and students are not learning.

Eisgruber discusses some of the well-known campus disputes, many of them venerable chestnuts in the free-speech wars, like the picketing of Charles Murray, which happened eight years ago, and the blowup over Halloween costumes at Yale, which happened when Barack Obama was President and we were still living on the Big Rock Candy Mountain. All the same, it is hard to fight off the sense that Eisgruber is mainly interested in defending Princeton. He is doing, much less recklessly, what Barnard’s president was doing with her opinion piece: he is preëmptively defending his institution against government attack.

That’s fine. That’s his job. But you would never know, reading his book, that there was a pro-Palestinian encampment on the Princeton campus in the spring of 2024. You would never know that there were sit-ins and that students were arrested. There is virtually no mention of Trump in the book, apart from a vague reference to “multiple Trump administration executive orders that targeted higher education” and a remark that Trump has not done a lot for civility norms. This is despite the fact, also not mentioned, that last April the Administration suspended hundreds of millions of dollars in federal grants to Princeton.

Eisgruber spoke out quite assertively at the time in defense of academic freedom, but he has said little publicly since. That Harvard is in court and subject to multiple phony “investigations” as the government tries to bully it into submission goes unmentioned in his book, too. Yet he does see fit to critique Harvard’s institutional-voice policy, which limits public pronouncements by the university to issues affecting higher education, that being the one subject academics are competent to opine on. He prefers an approach unconstrained by such “mechanical formulae.” Again, fine as long as it works.

You also would not know from the book that in 2020 hundreds of Princeton graduate students, staff, and faculty—including professors from thirty-four of Princeton’s thirty-six departments—sent the university administration a four-thousand-word petition demanding that it address systemic racism by, among many other things, rewarding departments that have hired underrepresented minority professors and denying new appointments to departments that have not, and granting extra pay and sabbatical time to professors who are members of underrepresented minority groups.

The petitioners further demanded that the administration

constitute a committee composed entirely of faculty that would oversee the investigation and discipline of racist behaviors, incidents, research, and publication on the part of faculty, following a protocol for grievance and appeal to be spelled out in Rules and Procedures of the Faculty. Guidelines on what counts as racist behavior, incidents, research, and publication will be authored by a faculty committee for incorporation into the same set of rules and procedures.

This could be read, and by many people was read, as a chilling assault on the principle of academic freedom, which courts have interpreted as a component of the First Amendment protection of free speech.

Eisgruber’s elision of this episode—there is an oblique reference to “widespread student and faculty interest in seeing the university do more to address the effects of racism on the university community and America”—is understandable. The petition was widely circulated in the academic world, and it was not received with enthusiasm. The idea of a faculty committee empowered to vet scholarly publications for racial bias has, ineluctably, a Star Chamber vibe.

The omission is particularly unfortunate because it bears directly on the main point Eisgruber wants to make, which is that free speech and equality are not rival ideals but, in fact, belong together. His key text is the Supreme Court’s opinion in the 1964 case New York Times v. Sullivan. That is where the Court raised the bar in libel suits by public officials, ruling that, absent “actual malice,” meaning willful or reckless disregard for the truth, you can publish anything you want about someone the Court recognizes as public—a category that has expanded over the years.

Eisgruber, who is a scholar of constitutional law, believes that Sullivan is the cornerstone of American free-speech law. And it is significant, he argues, that it was a civil-rights case. It involved an advertisement in the Times soliciting donations to Martin Luther King, Jr.,’s defense fund that contained some factual inaccuracies. Those were the basis for the lawsuit, which was filed by an Alabama official. In ruling for the Times, the Court was in solidarity with the civil-rights movement.

But, of course, the authors of the 2020 Princeton petition were also trying to strike a blow for racial equality. For them, a highly permissive interpretation of free-speech law gives cover to racists, and a permissive interpretation of the principle of academic freedom allows for the perpetuation of exclusionary scholarship.

Fara Dabhoiwala teaches in the history department at Princeton, but he was not a signatory to the petition. Which is surprising, since his new book, “What Is Free Speech? The History of a Dangerous Idea” (Belknap), is entirely in its spirit. (Although it is a good rule never to sign a letter you did not write. You will be responsible for every word.)

When we see “a dangerous idea” in the subtitle, we naturally assume that Dabhoiwala means dangerously good, in the sense of dangerous to bullies and tyrants. But this is not what he means. He means that free speech is a bad idea. Eisgruber thinks that the maximalist character of American free-speech law is the best thing about it, but Dabhoiwala thinks it’s the worst.

When we think of the history of free-speech rights, we tend to think of the Anglo-American legal tradition. A virtue of Dabhoiwala’s book is that it is transnational, and there are discussions of free-speech traditions less familiar to American readers. The first free-speech law, for example, was enacted in Sweden, in 1766.

The point Dabhoiwala wants to make is that the Anglo-American concept is not universal. On the contrary, he says, “America is now the only country in the world where even local ordinances against ‘hate speech’ are treated as presumptively unconstitutional.” First Amendment jurisprudence is absolutist and libertarian. Other nations have speech rights, but they are qualified. Hate speech can be prosecuted in the United Kingdom.

For a historian, Dabhoiwala is rather judgy. He calls free speech “a kind of secular religion, with its own shifting dogmas and hagiography,” an “inherently unstable fiction,” and “a contrived, invented concept.” Of course, all our concepts are invented. They are tools for dealing with the world, which happens to include a lot of other human beings, many of whom, sadly, don’t agree with us.

“The creation and interpretation of rules about ‘free speech,’ ” he says, “is a perennially mutable and politicized process: freedom is never equally distributed.” And he shows that, ever since the idea of free-speech rights arose in eighteenth-century Europe, the concept has been, as he puts it, racialized and gendered. Freedom of expression, like, to a large extent, the franchise, was understood to be a right enjoyed by white men. Even John Stuart Mill, the model nineteenth-century liberal and a feminist, did not think that Indians in British India were ready for free speech. In other words, free-speech rights—like all rights, really—reflect, and therefore can be enlisted to perpetuate, existing power relations.

But we don’t think the right to vote is suspect because the franchise was once restricted. Those restrictions may be shocking to twenty-first-century sensibilities, but aren’t they what we should expect? In a patriarchal and highly class- and race-stratified society like Mill’s England, it is not surprising to find legal rights reproducing those inequities.

We are in a different place today, and one of the things that make us feel we are is the expansion of First Amendment freedoms throughout the twentieth century, beginning in 1919 with the dissents of Justices Holmes and Louis Brandeis, and then in Court rulings in the nineteen-fifties and sixties that protected not only political speech but artistic expression. Yet Dabhoiwala thinks that the trend is all in the wrong direction. He says that, since the sixties, “American free-speech jurisprudence has gradually abandoned any conception of the common good, beyond its abstract obeisance to ‘free debate’ as the highest ideal.”

The right way to determine what speech should be tolerated, he says, is to give up the “dubious distinction” between words and actions. “Their supposedly different potency,” he maintains, “is just a convenient myth.” We should regulate speech in the same way we regulate behavior. It is “perfectly reasonable to oppose utterances that you believe to be seriously harmful,” Dabhoiwala says, “and to argue that these shouldn’t qualify as ‘free speech.’ ”

Which is exactly what Trump argues. I hope that he has given Dabhoiwala second thoughts. When academics tried to stigmatize certain terms and beliefs, as they did at Princeton, they forgot the first rule of free speech: the postman always rings twice. Today’s policed are tomorrow’s policemen.

If the Administration’s actions are so blatantly unlawful, why does everyone seem to be caving? Some of it is just cost-benefit analysis. Paramount, which owned CBS, wanted to merge with Skydance Media, a transaction that required government approval. The company calculated that it was not worth jeopardizing the deal over a news program, which is a tiny piece of its empire. Jimmy Kimmel’s show was suspended after Nexstar, which owns some thirty ABC affiliate stations, put pressure on Disney, which owns ABC. Nexstar intends to buy a competitor, Tegna, which owns thirteen ABC affiliates, and the transaction needs F.C.C. approval. (The following week, after a “thoughtful conversation” with Kimmel, ABC reinstated the show, but Nexstar and Sinclair said that their affiliates would not air it.)

Government agencies can be challenged in court, and some of those challenges have succeeded at the appellate level. But the buck has generally stopped at the Supreme Court. For some whom the government now casts as enemies in the free-speech wars, that’s a worry. Universities that shut down or rename their diversity offices are not merely trying to appease the President. They anticipate that the Court will back government agencies that interpret “diversity” as an alibi for impermissible racial classification, in violation of the equal-protection clause and Title VI. Professors who complain that their schools are “caving” when they drop the term “diversity” should know this. But university presidents can’t tell them the reason they are renaming diversity offices, because they would basically be telling the Court that they’re cheating and are just racially classifying students under a different rubric. So there is a lot of crosstalk.

In the case of the attacks on the First Amendment, one big concern (unmentioned by Eisgruber) is the future of Sullivan. Members of the Court, specifically Clarence Thomas and Neil Gorsuch, have indicated an interest in overturning that holding, thereby reinstating a lower bar for libel suits by public figures by removing the “actual malice” requirement. There is little reason to assume that, given the right occasion, this Court will not overrule Sullivan, handing Trump another weapon in his war against free speech. Of course, if the law were to change, it might not be a total win for him. After all, no one is more reckless with the truth than Trump. He could be sued almost every time he opens his mouth. 

Frequently Asked Questions

Freedom of speech is the right to articulate opinions and ideas without interference, retaliation or punishment from the government. The term “speech” is interpreted broadly and includes spoken and written words as well as symbolic speech (e.g., what a person wears, reads, performs, protests, and more).

The First Amendment protects speech even when the ideas put forth are thought to be illogical, offensive, immoral or hateful. Public universities such as Iowa State are subject to the constitutional restrictions set forth in the First Amendment, both in state/federal law, and may not infringe on an individual’s freedom of speech.

Freedom of speech does not mean that individuals may say whatever they wish, wherever they wish. The university may restrict speech that falsely defames a specific individual; constitutes a genuine threat or harassment; is intended and likely to provoke imminent unlawful action or otherwise violates the law. In addition, the university may reasonably regulate the time, place and manner of speech to ensure it does not disrupt the ordinary activities of the university. The exceptions have been interpreted narrowly by the Supreme Court and state and federal courts.

What is the First Amendment?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – United States Constitution

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes, as well as the right to protest the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights – a written document protecting civil liberties under U.S. law.

The First Amendment played a significant role in the Civil Rights movement, as the movement drew upon several First Amendment freedoms — primarily speech, assembly and petition — to protest racial injustice and promote racial equality. In addition, the U.S. Supreme Court strengthened these First Amendment freedoms through its rulings in court cases arising out of the civil rights movement. For example, in NAACP v. Alabama (1958), the Supreme Court recognized the right of association within the First Amendment and protected membership lists against state investigation. In Garner v. Louisiana (1961), the Supreme Court overturned the disturbing-the-peace convictions of five civil rights protestors who engaged in sit-ins. And in Edwards v. South Carolina (1963), the Supreme Court struck down the breach-of-the-peace convictions of over one hundred students who had marched to the South Carolina statehouse, protesting segregation and carrying signs with such messages as “Down with Segregation.” The Court stated that the government of South Carolina could not criminalize “the peaceful expression of unpopular views.”

Which types of speech are not protected by the First Amendment?

Types of speech that are not protected by the First Amendment include the following:

Incitement to Imminent Lawless Action

The First Amendment does not protect speech that incites people to break the law, including to commit acts of violence. In Brandenburg v. Ohio, the Supreme Court ruled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In Hess v. Indiana, the Supreme Court clarified what constitutes unprotected incitement speech noting that the speech must be directed at a specific person or group and there must be evidence, or a rational inference from the import of the language, that the speaker’s words were intended to produce, and likely to produce, imminent disorder.

Fighting Words

The Supreme Court first identified the so-called “fighting-words” exception to the First Amendment in 1942. Over the ensuing decades the Court has limited the fighting words doctrine. Generally, unprotected fights words are words that by their very utterance inflict injury and tend to incite an immediate breach of the peace. There is no list of “fighting words” instead, courts examine the totality of the circumstances and decline to protect clear and directed insults intended to start a fight or lawlessness. Speech can still be protected if it is angry or profane and laws prohibiting fighting words must be very narrowly tailored.

True Threats

In its most recent case examining “true threats”, the Supreme Court defined unprotected true threats to encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group of individuals. The speaker need not actually intend to carry out the threat but the speaker must have spoken with “the intent of placing the victim in fear of bodily harm or death.” In United States v. Dinwiddie, the federal Eighth Circuit Court of Appeals applied a five-factor test to determine whether speech constitutes a true threat, including: (i) the reaction of the recipient of the threat and of other listeners; (ii) whether the threat was conditional; (iii) whether the threat was communicated directly to its victim; (iv) whether the maker of the threat had made similar statements to the victim in the past; and (v) whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.

Obscenity

The Supreme Court has struggled to define unprotected “obscenity” for decades. In Jacobellis v. Ohio the Supreme Court noted that in attempting to identify obscenity, the Court “was faced with the task of trying to define what may be indefinable.” After attempting to approach the issue on a case-by-case basis, the Supreme Court established “basic guidelines” in Miller v. California. Speech or materials may be deemed obscene (and therefore unprotected) if the speech meets the following (extremely high) threshold: It (1) appeals to the “prurient” interest in sex (defined as a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex), (2) is patently offensive by community standards / applicable state law and (3) lacks literary, artistic, political, or scientific value.

Defamation

An intentional and false statement about an individual that is publicly communicated in written (called “libel”) or spoken (called “slander”) form, causing injury to the individual. To be defamatory, a statement must be an assertion of fact (rather than mere opinion) and capable of being proven false. In addition to being false, the statement, to be defamatory, must identify its victim by naming or reasonably implicating the person allegedly defamed. The Supreme Court has strove to balance the interests of a free press with the privacy and dignity of others. As a person becomes more well-known or takes official positions in the government, the Court has afforded them less protections.

Harassment

The Supreme Court in Davis v. Monroe County defined unprotected harassment as unwelcome conduct based on an individual’s protected status or perceived protected status that is sufficiently severe, persistent, and pervasive to unreasonably interfere with that individual’s educational (or employment) environment, thereby creating an environment that a reasonable person in similar circumstances and with similar identities would find hostile, intimidating, or abusive. In determining whether an environment is sufficiently hostile, intimidating, or abusive to constitute prohibited harassment, courts generally consider the totality of the circumstances including the frequency of the discriminatory conduct, the severity of the conduct, whether the conduct is physically threatening and whether the conduct unreasonably interferes with an individual’s educational/employment performance. Typically, courts find a hostile environment is created when a series of serious incidents based on prohibited animus occurs within a defined period of time and no remedial action is taken to prevent or remediate the conduct. The more severe the conduct, the less need there is to show a repetitive series of incidents to show a hostile environment, particularly if the conduct is physical.

Material and Substantial Disruption

In Tinker v. Des Moines Independent Community School District, the Supreme Court recognized that conduct that creates or reasonably threatens to create a material and substantial disruption to the functioning of a school is not protected under the First Amendment. Courts have applied this standard on a case-by-case basis closely analyzing the specific context of the speech.

Historically, the Supreme Court has narrowly defined speech that is not protected under the First Amendment, thereby limiting the authority of the government and public officials to prohibit or prosecute speech, even if it is unpopular or deeply offends many people.

What is “hate speech?” Is it protected by the First Amendment?

The term “hate speech” is often misunderstood. “Hate speech” doesn’t have a legal definition under U.S. law, just as there is no legal definition for lewd speech, rude speech, unpatriotic speech, or other similar types of speech or expression that people might condemn. The term often refers to speech or expression that the listener believes denigrates, vilifies, humiliates, or demeans a person or persons on the basis of membership or perceived membership in a social group identified by attributes such as race, ethnicity, gender, sexual orientation, religion, or other protected status. Speech identified as hate speech may involve epithets and slurs, statements that promote malicious stereotypes, and speech denigrating or vilifying specific groups. Hate speech may also include nonverbal depictions and symbols.

In the United States, hate speech receives substantial protection under the First Amendment, based upon the idea that it is not the proper role of the government to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Instead, the government’s role is to broadly protect individuals’ freedom of speech in an effort to allow for the expression of unpopular and countervailing opinion and encourage robust debate on matters of public concern even when such debate devolves into offensive or hateful speech that causes others to feel grief, anger, or fear.

While Iowa State University greatly values inclusion, and mutual respect, and encourages community members to observe the Principles of Community when engaging with each other, hate speech may only be prohibited and punished if it falls into one or more of the categories of unprotected speech described previously (e.g., “harassment” or “true threats”).

However, it goes without saying that just because there is a First Amendment right to say something, doesn’t mean it should be said. The First Amendment protects a right to say hateful things, often even when they stand in direct opposition to Iowa State’s values of diversity, inclusion and mutual respect, and the Principles of Community. However, as a campus, we can all work together to promote and ensure an environment where all students, faculty and staff are welcomed, respected and supported, and where members of this community are tolerant of the ideas and expression of others. The university maintains its own First Amendment rights and actively condemns acts of hate. Indeed, as an educational institution, the university plays a critical role in educating our community members so that they can effectively counter hate, racism, and bigotry.

The First Amendment does not protect illegal conduct just because that conduct is motivated by an individual’s beliefs or opinions. Therefore, even though hate speech is protected by the First Amendment, illegal conduct motivated by an individual’s hate for a particular protected group may be regulated by local, state, or federal law, and / or university policies. These laws are sometimes identified as “hate crimes.”

Are there resources available for individuals who encounter hateful speech?

Iowa State is dedicated to fostering free speech in an environment where members of our community can learn from one another and where all are treated with dignity and respect. Bigoted messages and hateful speech are inconsistent with ISU’s Principles of Community, and the values we expect on our campus.  The university encourages faculty, staff and students to use their free-speech rights, consistent with federal and state laws, to condemn hateful speech and to help create opportunities for the campus community to understand and learn from these actions. Students who encounter hurtful or hateful speech are encouraged to reach out to university administrators for support and resources, including utilizing the Campus Climate Reporting System or contacting the Office of Equal Opportunity at 515-294-7612 or eooffice@iastate.edu.

How does free expression apply to the internet and social media?

This issue was first considered in the Supreme Court case Reno v. ACLU, where the Supreme Court concluded that the internet should be given the same full protection as print media of the First Amendment. While the University can control the content on its official and sponsored websites, it cannot regulate the content posted on unaffiliated sites, including personal or group Facebook pages, or Twitter, Instagram, or Snap Chat postings, any more than it can regulate direct speech. Universities are not permitted to censor content, nor can they punish someone who posts an offensive message. Free speech exists even online. However, it is important to note that in general, websites like Twitter, Facebook, Reddit, and others may make banning decisions based on individually posted content that are in the best interest of their company, or due to general disagreements with the political bent of the posters.

What is academic freedom and how does it relate to free speech?

Academic freedom is foundational to higher education because it encourages and guarantees the right to inquiry, discourse, and learning that characterize a community of scholars. Iowa State supports full freedom, within the law, of expressions in teaching, investigation in research, and dissemination of results through presentation, performance, and publication. When faculty are engaged in scholarly discourse they may not be disciplined for discussion or presentation of material, ideas and topics that are germane to the scholarly subject matter. In order to be germane, the material presented must be both relevant to the scholarly subject matter and must be presented by appropriate means. Faculty must remember that students may be constrained in their freedom of choice of classes and in continuation in classes.

Accordingly, teaching methods that target individual students in an unfair way so as to prevent them from full participation in a course will not be regarded as appropriate.

Do employees have the same free speech rights in the workplace as they do as private citizens?

University employees (including faculty and staff, as well as student employees in the context of their employment) do not give up their free speech rights as citizens by virtue of being public employees. However, the University does have the right to restrict speech within or that affects the workplace.

Generally, there is a three-step test for determining whether an employee’s speech is protected. At step 1, the employer asks whether the speech was made pursuant to an employee’s official duties. If the answer to this question is “yes,” then the employer has an interest in that speech, and may regulate the speech. If the answer to this question is “no,” then the analysis proceeds to the second step. At step 2, the employer asks whether the speech was on a matter of public concern (e.g. wider political or social issues and not strictly a personal issue). If the answer is “no” (e.g., a personal workplace critique), then it is not protected speech. If the answer is “yes,” then the analysis moves to the third and final step. At step 3, there is a balancing of interests, weighing the interests of the employee in speaking against the employer’s interest in an efficient and effective workplace. If the employer’s interests outweigh the employee’s interests, then it is proper for the employer to act to protect its interests, including regulating the speech or disciplining the employee for disrupting those interests. Speech related to academic scholarship or classroom instruction might implicate additional interests such as academic freedom.

Resources

-newyorker.com, “Where the Battle Over Free Speech Is Leading Us.” By Louis Menand;

-congress.gov, “Freedom of Speech: An Overview.”;

–https://imprimis.hillsdale.edu/the-liberal-assault-on-freedom-of-speech/, “The Liberal Assault on Freedom of Speech.” By Thomas G. West;

–https://freespeech.iastate.edu/faq, ” Free Speech: Frequently Asked Questions.”;

Miscellaneous(Military, Economy , Religion and etc) Postings
https://common-sense-in-america.com/2020/11/27/dominion-voting-system-exposed/
https://common-sense-in-america.com/2020/11/24/why-doc-holiday-epitomizes-americas-indomitable-spirit/
https://common-sense-in-america.com/2020/11/13/voter-fraud-in-2020-how-will-effect-future-elections/
https://common-sense-in-america.com/2020/11/11/veteran-suicides-where-we-failed/
https://common-sense-in-america.com/2020/10/21/what-happened-to-seal-team-six/
https://common-sense-in-america.com/2020/12/04/what-will-become-of-our-capitalistic-society/
https://common-sense-in-america.com/2020/06/06/voting-in-america-in-the-era-of-the-pandemic/
https://common-sense-in-america.com/2020/10/22/campaign-funding-disparity-between-democrats-and-republicans/
https://common-sense-in-america.com/2020/06/09/why-the-left-socialist-and-communist-hate-religion/
https://common-sense-in-america.com/2020/06/13/campaigning-for-public-office-in-the-age-of-the-coronavirus/
https://common-sense-in-america.com/2020/06/23/restaurants-and-buffets-in-the-age-of-covid/
https://common-sense-in-america.com/2020/10/02/what-does-it-mean-to-be-a-jehovah-witness/
https://common-sense-in-america.com/2020/09/05/are-we-a-nation-of-wimps-why-all-the-counseling/
https://common-sense-in-america.com/2020/07/11/are-their-inequalities-in-salaries-for-movie-stars-based-on-sex/
https://common-sense-in-america.com/2020/07/11/is-the-disparity-in-salaries-based-on-sex-a-thing-of-the-past/
https://common-sense-in-america.com/2020/07/15/has-our-re-opening-been-intentionally-sabotaged/
https://common-sense-in-america.com/2020/08/01/zombie-apocalypse-our-future/
https://common-sense-in-america.com/2020/10/07/president-trump-is-being-accused-of-not-accepting-a-loss-in-the-2020-election/
https://common-sense-in-america.com/2020/09/27/who-controls-the-voting-process/
https://common-sense-in-america.com/2020/09/27/voter-fraud-with-mail-in-ballots-fact-or-fiction/
https://common-sense-in-america.com/2020/09/26/polls-how-accurate-are-they/
https://common-sense-in-america.com/2020/09/09/voting-along-party-lines-is-old-school/
https://common-sense-in-america.com/2020/08/23/what-happens-to-president-trump-if-he-wins-the-election-but-he-loses-the-senate/
https://common-sense-in-america.com/2020/08/06/voting-in-november/
https://common-sense-in-america.com/2020/07/18/can-president-trump-win-again-in-2020/
https://common-sense-in-america.com/2020/07/10/if-you-are-voting-for-biden-consider-psychiatric-help/
https://common-sense-in-america.com/2020/08/05/can-american-win-the-war-for-the-world-market/
https://common-sense-in-america.com/2020/08/13/why-are-an-ever-increasing-number-of-american-citizens-relinquishing-their-citizenship/
https://common-sense-in-america.com/2020/09/09/voting-along-party-lines-is-old-school/
https://common-sense-in-america.com/2020/09/15/ufos-what-is-our-government-not-telling-us/
https://common-sense-in-america.com/2020/09/21/end-of-days/
https://common-sense-in-america.com/2020/09/22/do-we-need-military-bases-in-every-country/
https://common-sense-in-america.com/2020/12/25/navarro-2020-election-report-examined/
https://common-sense-in-america.com/2021/01/01/did-brad-parscale-almost-bankrupt-the-trump-2020-election/
https://common-sense-in-america.com/2021/02/02/what-gives-people-the-right/
https://common-sense-in-america.com/2021/02/04/the-origins-of-the-term-gaslighting/
https://common-sense-in-america.com/2021/03/16/election-reform/
https://common-sense-in-america.com/2021/03/16/voter-fraud-in-2020-revisited/
https://common-sense-in-america.com/2021/03/19/is-the-stock-market-only-for-the-big-boys/
https://common-sense-in-america.com/2021/03/23/the-history-of-unions-in-america/
https://common-sense-in-america.com/2021/03/30/the-chinese-and-mexican-drug-war-with-america/
https://common-sense-in-america.com/2021/04/23/are-reverse-mortgages-legit/
https://common-sense-in-america.com/2021/04/27/does-tiger-woods-have-a-self-destructive-personality/
https://common-sense-in-america.com/2021/05/03/voter-reform-my-final-words/
https://common-sense-in-america.com/2021/06/18/the-truth-behind-the-humvee-hummer/
https://common-sense-in-america.com/2021/06/22/the-drug-cartels-and-satanic-cults/
https://common-sense-in-america.com/2021/07/13/why-is-hard-currency-disappearing/
https://common-sense-in-america.com/2021/07/20/can-we-win-it-all-back/
https://common-sense-in-america.com/2021/08/06/why-is-america-the-land-of-the-middleman/
https://common-sense-in-america.com/2021/08/27/lance-armstrong-revisited/
https://common-sense-in-america.com/2021/09/21/where-are-the-illegal-immigrants-being-shipped-to/
https://common-sense-in-america.com/2021/10/15/who-is-alinsky-and-how-is-he-screwing-up-our-country/
https://common-sense-in-america.com/2021/10/22/did-iraq-have-weapons-of-mass-destruction/
https://common-sense-in-america.com/2021/11/05/memorial-to-the-military-personnel-killed-in-the-war-on-terrorism-afghanistan/
https://common-sense-in-america.com/2021/11/09/memorial-to-the-military-personnel-killed-in-the-war-on-terrorism-iraq-part-one/
https://common-sense-in-america.com/2021/11/09/memorial-to-the-military-personnel-killed-in-the-war-on-terrorism-iraq-part-two/
https://common-sense-in-america.com/2021/11/16/what-is-the-nuremberg-code-and-how-does-it-affect-us-today/
https://common-sense-in-america.com/2021/11/19/celibacy-in-religion-is-it-natural/
https://common-sense-in-america.com/2022/01/07/the-low-down-on-charities-and-financial-aid/
https://common-sense-in-america.com/2020/11/27/dominion-voting-system-exposed/
https://common-sense-in-america.com/2020/11/24/why-doc-holiday-epitomizes-americas-indomitable-spirit/
https://common-sense-in-america.com/2020/11/13/voter-fraud-in-2020-how-will-effect-future-elections/
https://common-sense-in-america.com/2020/11/11/veteran-suicides-where-we-failed/
https://common-sense-in-america.com/2020/10/21/what-happened-to-seal-team-six/
https://common-sense-in-america.com/2020/12/04/what-will-become-of-our-capitalistic-society/
https://common-sense-in-america.com/2020/06/06/voting-in-america-in-the-era-of-the-pandemic/
https://common-sense-in-america.com/2020/10/22/campaign-funding-disparity-between-democrats-and-republicans/
https://common-sense-in-america.com/2020/06/09/why-the-left-socialist-and-communist-hate-religion/
https://common-sense-in-america.com/2020/06/13/campaigning-for-public-office-in-the-age-of-the-coronavirus/
https://common-sense-in-america.com/2020/06/23/restaurants-and-buffets-in-the-age-of-covid/
https://common-sense-in-america.com/2020/10/02/what-does-it-mean-to-be-a-jehovah-witness/
https://common-sense-in-america.com/2020/09/05/are-we-a-nation-of-wimps-why-all-the-counseling/
https://common-sense-in-america.com/2020/07/11/are-their-inequalities-in-salaries-for-movie-stars-based-on-sex/
https://common-sense-in-america.com/2020/07/11/is-the-disparity-in-salaries-based-on-sex-a-thing-of-the-past/
https://common-sense-in-america.com/2020/07/15/has-our-re-opening-been-intentionally-sabotaged/
https://common-sense-in-america.com/2020/08/01/zombie-apocalypse-our-future/
https://common-sense-in-america.com/2020/10/07/president-trump-is-being-accused-of-not-accepting-a-loss-in-the-2020-election/
https://common-sense-in-america.com/2020/09/27/who-controls-the-voting-process/
https://common-sense-in-america.com/2020/09/27/voter-fraud-with-mail-in-ballots-fact-or-fiction/
https://common-sense-in-america.com/2020/09/26/polls-how-accurate-are-they/
https://common-sense-in-america.com/2020/09/09/voting-along-party-lines-is-old-school/
https://common-sense-in-america.com/2020/08/23/what-happens-to-president-trump-if-he-wins-the-election-but-he-loses-the-senate/
https://common-sense-in-america.com/2020/08/06/voting-in-november/
https://common-sense-in-america.com/2020/07/18/can-president-trump-win-again-in-2020/
https://common-sense-in-america.com/2020/07/10/if-you-are-voting-for-biden-consider-psychiatric-help/
https://common-sense-in-america.com/2020/08/05/can-american-win-the-war-for-the-world-market/
https://common-sense-in-america.com/2020/08/13/why-are-an-ever-increasing-number-of-american-citizens-relinquishing-their-citizenship/
https://common-sense-in-america.com/2020/09/09/voting-along-party-lines-is-old-school/
https://common-sense-in-america.com/2020/09/15/ufos-what-is-our-government-not-telling-us/
https://common-sense-in-america.com/2020/09/21/end-of-days/
https://common-sense-in-america.com/2020/09/22/do-we-need-military-bases-in-every-country/
https://common-sense-in-america.com/2020/12/25/navarro-2020-election-report-examined/
https://common-sense-in-america.com/2021/01/01/did-brad-parscale-almost-bankrupt-the-trump-2020-election/
https://common-sense-in-america.com/2021/02/02/what-gives-people-the-right/
https://common-sense-in-america.com/2021/02/04/the-origins-of-the-term-gaslighting/
https://common-sense-in-america.com/2021/03/16/election-reform/
https://common-sense-in-america.com/2021/03/16/voter-fraud-in-2020-revisited/
https://common-sense-in-america.com/2021/03/19/is-the-stock-market-only-for-the-big-boys/
https://common-sense-in-america.com/2021/03/23/the-history-of-unions-in-america/
https://common-sense-in-america.com/2021/03/30/the-chinese-and-mexican-drug-war-with-america/
https://common-sense-in-america.com/2021/04/23/are-reverse-mortgages-legit/
https://common-sense-in-america.com/2021/04/27/does-tiger-woods-have-a-self-destructive-personality/
https://common-sense-in-america.com/2021/05/03/voter-reform-my-final-words/
https://common-sense-in-america.com/2021/06/18/the-truth-behind-the-humvee-hummer/
https://common-sense-in-america.com/2021/06/22/the-drug-cartels-and-satanic-cults/
https://common-sense-in-america.com/2021/07/13/why-is-hard-currency-disappearing/
https://common-sense-in-america.com/2021/07/20/can-we-win-it-all-back/
https://common-sense-in-america.com/2021/08/06/why-is-america-the-land-of-the-middleman/
https://common-sense-in-america.com/2021/08/27/lance-armstrong-revisited/
https://common-sense-in-america.com/2021/09/21/where-are-the-illegal-immigrants-being-shipped-to/
https://common-sense-in-america.com/2021/10/15/who-is-alinsky-and-how-is-he-screwing-up-our-country/
https://common-sense-in-america.com/2021/10/22/did-iraq-have-weapons-of-mass-destruction/
https://common-sense-in-america.com/2021/11/05/memorial-to-the-military-personnel-killed-in-the-war-on-terrorism-afghanistan/
https://common-sense-in-america.com/2021/11/09/memorial-to-the-military-personnel-killed-in-the-war-on-terrorism-iraq-part-one/
https://common-sense-in-america.com/2021/11/09/memorial-to-the-military-personnel-killed-in-the-war-on-terrorism-iraq-part-two/
https://common-sense-in-america.com/2021/11/16/what-is-the-nuremberg-code-and-how-does-it-affect-us-today/
https://common-sense-in-america.com/2021/11/19/celibacy-in-religion-is-it-natural/
https://common-sense-in-america.com/2022/01/07/the-low-down-on-charities-and-financial-aid/
https://common-sense-in-america.com/2022/01/21/who-was-ultimately-responsible-for-the-pearl-harbor-tragedy/
https://common-sense-in-america.com/2022/01/25/was-9-11-avoidable/
https://common-sense-in-america.com/2022/03/01/what-is-build-back-better-no-really/
https://common-sense-in-america.com/2022/03/08/gun-confiscation-is-it-legal-it-happened-in-2005/
https://common-sense-in-america.com/2022/04/01/air-force-one-revealed/
https://common-sense-in-america.com/2022/04/08/what-is-the-blm/
https://common-sense-in-america.com/2022/04/19/wheres-the-gold-is-fort-knox-empty%ef%bf%bc/
https://common-sense-in-america.com/2022/04/29/ms-13-are-they-from-hell/
https://common-sense-in-america.com/2022/05/20/religious-dogma-how-it-has-altered-the-world-even-today/
https://common-sense-in-america.com/2022/06/24/what-is-up-with-5g-the-good-the-bad-and-the-ugly/
https://common-sense-in-america.com/2022/07/08/why-are-we-returning-to-the-seventies/
https://common-sense-in-america.com/2022/07/15/who-is-behind-the-great-replacement-theory-movement-and-where-will-it-take-us/
https://common-sense-in-america.com/2022/08/12/are-we-in-a-recession/
https://common-sense-in-america.com/2022/09/12/should-england-shed-its-monarchy/
https://common-sense-in-america.com/2022/09/13/ten-words-to-live-by/
https://common-sense-in-america.com/2022/09/20/what-is-there-to-love-and-hate-about-our-country/
https://common-sense-in-america.com/2022/09/16/9-11-revisited/
https://common-sense-in-america.com/2022/09/27/our-income-tax-rate-in-1916-was-1-what-happened/
https://common-sense-in-america.com/2022/11/18/what-does-having-transgender-surgery-mean-to-the-recipient/
https://common-sense-in-america.com/2022/12/06/cults-what-the-hell/
https://common-sense-in-america.com/2022/12/16/why-the-red-wave-never-happened/
https://common-sense-in-america.com/2022/12/20/would-we-be-better-off-without-the-federal-reserve-did-they-kill-jfk/
https://common-sense-in-america.com/2022/12/23/hybrid-cars-anyone/
https://common-sense-in-america.com/2023/01/27/afghanistan-echoes-of-our-past-in-vietnam/
https://common-sense-in-america.com/2023/02/24/the-economic-disaster-of-the-pandemic-response/
https://common-sense-in-america.com/2023/03/14/what-has-happened-to-our-weapons-left-behind-in-afghanistan/
https://common-sense-in-america.com/2023/04/18/is-cryptocurrency-nothing-but-an-elaborate-ponzi-scheme/
https://common-sense-in-america.com/2023/05/09/is-tik-tok-a-modern-day-tojan-horse/
https://common-sense-in-america.com/2023/05/30/how-does-our-economic-system-work-how-do-we-set-values-for-services-and-products/
https://common-sense-in-america.com/2023/09/20/u-s-navy-vs-the-chinese-navy-the-real-skinny/
https://common-sense-in-america.com/2023/10/20/how-did-diamonds-become-a-girls-best-friend/
https://common-sense-in-america.com/2023/10/17/why-do-average-citizens-become-ministers-what-affect-is-this-growing-trend-having-on-our-way-of-life/
https://common-sense-in-america.com/2023/10/31/taxes/
https://common-sense-in-america.com/2023/11/07/is-our-military-prepared-for-war/
https://common-sense-in-america.com/2024/02/02/is-keynsian-economics-the-worst-thing-that-has-ever-happened-to-our-economy/
https://common-sense-in-america.com/2024/02/06/wokeism/
https://common-sense-in-america.com/2024/02/09/what-is-happening-to-our-rail-system/
https://common-sense-in-america.com/2024/02/13/__trashed-4/
https://common-sense-in-america.com/2024/02/16/why-do-we-set-the-clock-back/
https://common-sense-in-america.com/2024/02/20/will-illegal-aliens-be-allowed-to-vote-in-2024/
https://common-sense-in-america.com/2024/04/05/land-value-tax-what-it-is-how-it-works/
https://common-sense-in-america.com/2024/04/09/helmut-schreiber-alias-kalanag-hitlers-magician/
https://common-sense-in-america.com/2024/04/12/what-is-the-shock-doctrine-chicago-school-of-economics-and-how-it-has-adversely-affected-the-world-economies/
https://common-sense-in-america.com/2024/05/17/how-we-sold-our-soul-unit-731-the-asian-version-of-operation-paper-clip/
https://common-sense-in-america.com/2024/05/31/solar-warden-and-star-raker/
https://common-sense-in-america.com/2024/06/04/hoaxes-are-they-real-or-are-a-they-elaborate-cover-ups-for-example-the-1909-grand-canyon-hoax/
https://common-sense-in-america.com/2024/07/05/are-illegal-aliens-going-to-be-able-to-vote-in-the-presidential-election-of-2024/
https://common-sense-in-america.com/2024/08/20/weve-hit-peak-denial-heres-why-we-cant-turn-away-from-reality/
https://common-sense-in-america.com/2024/08/30/pentagons-secret-mind-altering-weapon-silent-sound-spread-spectrum/
https://common-sense-in-america.com/2024/09/10/how-zuckerberg-influenced-the-2020-election/
https://common-sense-in-america.com/2024/09/20/the-famous-gallows-of-january-6-who-what-where-when-and-why/
https://common-sense-in-america.com/2024/09/27/how-soros-backed-organizations-leverage-waves-of-new-immigrants-to-sway-elections/
https://common-sense-in-america.com/2024/10/11/our-national-debt-what-does-it-mean-and-who-is-carrying-it/
https://common-sense-in-america.com/2024/12/10/how-to-become-a-wingsuit-skydiver/
https://common-sense-in-america.com/2024/12/11/mysterious-drones-in-nj-and-england/
https://common-sense-in-america.com/2024/12/17/the-perfect-storm-that-led-to-the-jonestown-massacre/
https://common-sense-in-america.com/2025/03/07/misinformation-really-does-spread-like-a-virus/
https://common-sense-in-america.com/2025/03/07/social-security-rectifying-beneficiary-records-of-people-aged-100-or-older/
https://common-sense-in-america.com/2025/03/19/jfk-speech-1962-the-press/
https://common-sense-in-america.com/2025/11/14/the-assault-on-our-freedom-of-speech/