Defining Free Speech

When I taught about the First Amendment’s Free Speech protections, I would sometimes ask students to differentiate between a person pontificating that “Someone should lead a revolt against the government,” and a person at the head of an angry crowd moving toward a government official and yelling “We’re coming for you.”

The first of those is protected speech–it’s the utterance of an opinion. We might dislike the opinion, we might find it infuriating (much like burning a flag, which is the expression of a similar opinion), but it is an opinion, and protected by the First Amendment. The second, however, is a threat. To the extent that words constitute a credible threat, they are not within the protection of the First Amendment. Granted, it isn’t always easy to tell the difference between an angry exhortation and a genuine threat, but legally, they are different.

A recent article in the New York Times considered the rise of anti-Semitic incidents on the nation’s campuses, and drew that distinction.

Free speech, open debate and heterodox views lie at the core of academic life. They are fundamental to educating future leaders to think and act morally. The reality on some college campuses today is the opposite: open intimidation of Jewish students. Mob harassment must not be confused with free speech.

Fareed Zakaria made much the same point in an essay in The Week.

I have strongly condemned the attacks of Oct. 7. I think that those who praise Hamas in any way are blind to the reality that it has been the principal opponent of a two-state solution to the Israeli-Palestinian question. But the question to grapple with is how to handle views that either side finds deeply offensive. And of course, speech and assembly are not the same as physical intimidation and harassment, which prevent civil discourse…

The basic argument for free speech… is that it is better to hear those you violently disagree with than to ban or silence them. That way, debate happens out in the open and points are matched with counterpoints. The alternative is to drive discourse into the shadows and gutters of political life where it festers, turns into conspiracy theories, and often erupts into violence.

David French –a noted expert on the First Amendment–underlined the point that– just as there are international rules that apply to shooting wars, there are constitutional rules that apply to our nation’s culture wars. As he explained, “applying those rules properly is one way that a continent-size, multi-faith, multicultural society peacefully perseveres through profound division.”

Our civilization is intended to be a rights-based liberal democracy, where people who possess diametrically opposed points of view cannot just survive but also thrive without compromising their most fundamental beliefs — so long as they don’t interfere with the rights of others.

As French reminds his readers, freedom of speech includes freedom to be offensive and provocative–even freedom to advocate violence, but not to “incite or produce” lawless action.

Under this construct, public support for Hamas — or public support for carpet bombing Gaza — is constitutionally protected, even if it’s gross and immoral, and public institutions that suppress such speech violate the First Amendment….


The right to speak does not include a right to silence others. Putting up a poster is an act of protected speech. Tearing down that poster is not, even if the person destroying the poster is trying to make his or her own statement. Tearing down a poster is akin to shouting down a public speaker. Your protest cannot trump the speaker’s own right to free speech. The answer to a poster is another poster, not destroying the expression you hate, by tearing it down or defacing it any way…

The right to speak does not include a right to harass. This last concept is perhaps the most difficult to understand and apply consistently. The right to speak, as I said, absolutely includes a right to offend. The government cannot silence your speech simply because it makes people angry or upset…

This is a strict standard but certainly one that applies to threats and to acts of physical intimidation. If anti-harassment laws mean anything, they mean that students shouldn’t have to fear for their safety from fellow students simply because of their race, color or national origin. 

The prohibition of harassment includes actions prompted by antisemitism and Islamophobia that “detract from the victims’ educational experience.” 

I strongly recommend clicking through and reading French’s essay in its entirety, because it is an excellent primer on the constitutional interpretation and critical importance of  America’s Free Speech doctrine.

Bottom line: In America, people with defensible points of view express them through speech, not through vandalism, intimidation or thuggery. 


  1. Rights, which the Constitution guarantees that the government will not restrict by law or executive action, are one thing.

    Responsibilities, which are up to us individually, are another thing because each of us has no personal constitution. What we have individually (to some degree) is a moral code.

    My parents worked hard on us feral children (and us on our children, ad infinitum) to teach a moral code, knowing that it was necessary to domesticate us. Like wild animals, we sometimes disagreed with them on what was best for us. As house painters say, some of us took several coats to cover the natural feral with domestication colors.

    Rights and responsibilities work best when they are matched. Parents legislate, enforce, and adjudicate moral obligations. The Executive and Judicial Branches of government enforce and adjudicate rights.

    Things go better when the two are complementary.

  2. Vandalism, intimidation and thuggery are the tools of the weak-minded who are compelled to follow the loudest voices, because their own voices make no sense. These are, in sum, the Trump-ites’ behaviors for the reasons of their own ignorance, backwardness, fear and simplistic solutions to things they can’t or won’t understand.

    The Republican party, of course, embraces these sorts of behavior, because they never really have/had any intention of governing for the people, only consolidating power so they can control the money. But in their infinite stupidity, they fail to realize that their distinct minority will never fully achieve those goals of runaway greed and lust for power. Even Hitler’s Germany failed at that, and Trump and his pathology are not nearly as talented and organized as the Nazis were.

    Meanwhile, we will have to endure the show trials and the inherent idiocy of Trump’s “defense” team trying to disprove the truth. I guess the shit show is what we deserve for ever allowing this monster into the tent in the first place.

  3. French writes, “The government cannot silence your speech simply because it makes people angry or upset…”

    David must be a theorist because that statement is a load of shit. See the testimony on government interference by Twitter and Facebook. See the Twitter files released by Elon Musk, all pointing to government interference in free speech.

    And someone please point David to Julian Assange being held in the UK’s maximum security prison because the US government can’t handle the realities of a free press. There is another example from The Guardian that recently printed a portion of Osama Bin Laden’s speech laying out the US’s travesties abroad — the US government told The Guardian to remove the article, and they did. How’s that for government interference?

    And Vernon, Assange was placed in prison by a Republican and could be released by a Democrat, but both parties are captive tools of the MIC.

  4. It is my understanding that Assange was not prosecuted for anything he said, but for theft of government property.

  5. Pete,

    “Rights and responsibilities work best when they are matched. Parents legislate, enforce, and adjudicate moral obligations.” Absolutely, unfortunately today, many do not. Thus, we are living in times where in manners, morals, decency…”anything goes”. This is preached, tutored and enabled by screens…in the hands of/on the eyes of ….ALL.

  6. Unfortunately, the appeals court seems ready to allow Trump’s continued intimidating and threatening speech under the rubric of free speech by limiting or lifting the gag order imposed on him

  7. Racist comments in Brazil is a crime. It is not free speech. We learn with history. Nazi comments in German is a crime. They learn with history. It is not considered free speech. There is a line that is crossed in USA. You can hurt people psycologiclally with hate speech. This HAS to be better regulated, it is only harrasement if is fisical? This lack of regulations is making things getting worse.

  8. The First Amendment was never absolute and meant to be a cover for treasonous conduct which, in my opinion, would be the equivalent of crying “Fire! in a crowded theater.” Our Founders are unlikely to have intended to provide a means of destruction of the nation in which they delineated the rights, privileges and immunities in the state-citizen equation as the organic law of the land, and Marbury v. Madison provided and still provides judicial means of making such determinations.

    We are presently seeing the chaos caused by our failure to impose this standard in the case of Trump, whose speech conduct has long since left the “theater” and is running amok in the countryside to a gullible polity. I don’t think James Madison and Thomas Jefferson would approve of such “speech” from a former president who has openly declared that he is open to destruction of our Constitution, and I, some two and one-half centuries later, agree with them.

  9. There is nothing more illustrative of speech limitations stated in the doctrine: “Freedom of speech does not permit yelling fire in a crowded theater when there is no fire” . Thus causing a panic. Than screaming inciting violence claiming there was as stolen election when there was no stolen election. In so far as campaigning and gag orders, This nation went a century with presidential candidates staying at home saying nothing. Whilst speaking through surrogates. Unlimited speech does not become a norm in Presidential
    elections any more than anywhere else. The Constitution does not have sown within it the seeds of its own destruction.

  10. Sharon,

    Chelsea Manning took the evidence as military personnel and transferred the documents and video to Wikileaks/Julian Assange. Julian is a journalist and publisher of Wikileaks.

    You’ve fallen for the propaganda against Assange, of which there has been plenty. Most have already been debunked, leaving Julian as a political prisoner. He’s being tortured instead of having to face trial.

    Take your pick on which explainer you’d like to read to learn more:

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