Freedom of Speech and Consequences

A Comprehensive Analysis of Freedom of Speech in America: Historical Foundations, Legal Doctrines, and Contemporary Challenges

Part I: The Foundations of a “Great Bulwark of Liberty”: A Historical and Philosophical Examination

The American concept of freedom of speech, as enshrined in the First Amendment, is not a static principle but the product of centuries of evolving legal and philosophical thought. Its modern form was forged through intellectual heritage, contentious debates among the nation’s founders, and defining legal battles that established the boundaries of government power. The journey from the prevailing British legal tradition to the American legal framework reveals a deliberate and radical expansion of the right to free expression.

A. The Roots of a Radical Idea: British Common Law and Enlightenment Philosophy

The intellectual origins of the First Amendment’s Free Speech Clause are found in British common law and the works of 17th- and 18th-century Enlightenment philosophers.¹ The prevailing view in England, championed by the jurist Sir William Blackstone, held that freedom of the press was a protection against “prior restraint” but not from “subsequent punishment”.¹ Under this model, the government could not prevent a publication from being printed, but it could punish a writer or publisher after the fact for content deemed to have a “pernicious tendency,” such as seditious libel.¹ This narrow, and often oppressive, view served as the starting point for American thinkers who sought a more expansive right.

In contrast, Enlightenment philosophers offered a more radical vision of liberty. Benedict de Spinoza, a 17th-century Dutch thinker whose philosophy was known in the American colonies, believed that liberty of speech was an “indefeasible natural right” of individuals.¹ Similarly, the French philosopher Montesquieu argued for a clear distinction between “words” and “overt acts,” asserting that “The laws do not take upon them to punish any other than overt acts…. Words do not constitute an overt act; they remain only an idea”.¹ These ideas directly challenged the Blackstonian view by suggesting that speech, as a form of expression, should be afforded a higher degree of protection from government intervention.

This philosophical shift found a foothold in the American colonies. The 1735 case of John Peter Zenger, a New York publisher charged with seditious libel for criticizing the royal governor, became a celebrated moment in colonial history.¹ Zenger’s lawyers argued successfully that the truth of his critical statements should be a complete defense against libel charges and that the jury, not the judge, should determine criminal intent.¹ Although Zenger’s case did not change the law in England, his acquittal demonstrated a clear colonial desire to “enlarge the right of free speech” beyond the confines of British law.¹

B. The Founders’ Debates: Drafting the First Amendment

The debates among America’s founders during the drafting of the Bill of Rights revealed a spectrum of views on the scope of free speech, from the more expansive to the more cautious. James Madison’s initial draft of the Free Speech Clause, introduced in the House of Representatives on June 8, 1789, was notably more comprehensive than the final version.³ His proposal stated, “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable”.³ This draft was passed by the House but was later defeated by the Senate.³ The Senate ultimately rewrote the clause, leading to the more concise language of the final text: “Congress shall make no law abridging the freedom of speech, or of the press”.³ This transformation from Madison’s affirmative right to a negative constraint on Congress highlights the legislative process that produced the final constitutional language.

Thomas Jefferson, while a strong advocate for liberty, also expressed reservations about absolute free speech. In an 1788 letter to Madison, he wrote that a declaration protecting the press from government restraint would “not take away the liability of the printers for false facts printed”.³ A year later, he suggested a free speech-free press clause that would allow punishment for “false facts affecting injuriously the life, liberty, property, or reputation of others”.³ These early concerns reveal that even the most libertarian of the founders understood that the right to speech would not be limitless and would, in certain circumstances, be balanced against other rights.

C. Early Tests and the Crystallization of Meaning

The political and legal battles that followed the Constitution’s ratification were essential to defining the practical meaning of the First Amendment. The most significant of these was the controversy surrounding the Sedition Act of 1798. Passed by the Federalist-controlled government under President John Adams, the law punished anyone who would “write, print, utter or publish… any false, scandalous and malicious writing” against the government.³ The Adams Administration used the Act to prosecute political opponents and suppress criticism, leading to widespread outrage from the rival Jeffersonian Republicans.³ Both Madison and Jefferson condemned the Act as unconstitutional, viewing it as a clear violation of the First Amendment’s protections.³

Although the Supreme Court never ruled the Sedition Act unconstitutional before its expiration in 1801, the political and judicial consensus that emerged from the controversy was crucial.³ The historical opposition to the Sedition Act demonstrated to the nation that the First Amendment’s central purpose was to protect the “right of free public discussion of the stewardship of public officials”.⁴ This battle established a powerful precedent: the government’s role is not to regulate public discussion of its officials or ideas but to be subject to it.⁴ The fact that this foundational principle was forged in resistance to government overreach solidifies its role as a key bulwark against attempts to silence dissent, a concept that remains vital in contemporary legal and political discourse.

Part II: The Modern Doctrine: Protected vs. Unprotected Speech

Modern First Amendment jurisprudence, shaped by over 80 years of Supreme Court case law, has established a sophisticated framework for determining what speech is protected and what is not.⁵ This framework rests on the fundamental principle that the First Amendment only constrains government actors, and it holds that while most speech is protected, a few narrowly defined categories are not.

A. The Broad Sweep of Protected Expression

The First Amendment is a formidable barrier to government censorship. It prohibits federal, state, and local governments from jailing, fining, or imposing civil liability on people based on what they say or write, except in exceptional circumstances.⁶ This protection extends far beyond mere verbal communication to encompass “symbolic expression” or “expressive conduct,” which can include displaying flags, wearing armbands, or even burning the American flag in protest.⁷ The Supreme Court has consistently held that the government cannot restrict expression “merely because society finds the idea offensive or disagreeable”.⁸ The amendment protects a “dizzying array of communicative activities,” including political speech, religious expression, vulgarity, satire, and parody.⁸

A common misconception is that “hate speech” is a recognized category of unprotected expression. In the United States, this is not the case.¹⁰ The term “hate speech” has no legal definition under U.S. law and is generally protected by the First Amendment.¹¹ While such speech may be abhorrent, offensive, or deeply disagreeable, the government cannot prohibit it simply for its hateful content.¹⁰ A person or group who makes such remarks can only face disciplinary action or legal consequences if their speech fits within one of the narrowly defined categories of unprotected speech, such as incitement or a true threat.⁸ This principle is based on the idea that the government’s role is not to shield individuals from ideas they find unwelcome but to allow for robust and even offensive debate.¹¹

B. The Narrow Corridors of Unprotected Speech

Despite the broad protections afforded by the First Amendment, the right to free speech is not absolute. Certain limited categories of speech receive lesser or no protection and can be restricted or punished by the government. The determination of whether speech falls into one of these categories requires a “detailed analysis of the facts and circumstances at issue” and, in general, the bar to lose protection is “very high”.¹⁰

1. Incitement to Imminent Lawless Action

The Supreme Court has held that speech that advocates for the use of force or illegal conduct is unprotected if it meets the two-pronged test established in Brandenburg v. Ohio (1969).¹³ For speech to be punishable as incitement, it must be “directed to inciting or producing imminent lawless action” and be “likely to incite or produce such action”.¹⁴ This standard is a critical part of modern free speech law as it replaced the earlier, more lenient “clear and present danger” test from

Schenck v. United States (1919).¹⁵ The

Brandenburg test creates an extremely difficult standard for the government to meet, requiring the harm to be both direct and immediate, not merely a hypothetical or future possibility.¹⁵ For example, a speaker may advocate for violence as a means of political reform, but their words are still protected unless they express an immediate intent to do violence and are likely to cause it.¹³

2. True Threats

A “true threat” is a statement in which the speaker communicates “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”.¹⁰ This category of speech is not protected by the First Amendment and can be prosecuted under criminal laws.¹⁸ The speaker does not need to actually intend to carry out the threat, but the prosecution must prove that they intended to communicate a threat.¹⁸ The legal standard for determining a true threat has evolved to encompass the unique challenges of modern communication. In

Watts v. United States (1969), the Supreme Court held that political hyperbole and joking statements are not true threats, and it established the “Watts factors” to aid in the analysis, which include the context of the statement, its conditional nature, and the reaction of the audience.¹⁸

The advent of social media has complicated this analysis, leading the Supreme Court to revisit the standard. Recent cases like Elonis v. United States (2015) and Counterman v. Colorado (2023) have focused on the level of intent required for online threats.¹⁸ The Court ultimately adopted a “recklessness” standard in

Counterman, meaning a speaker’s communication is not protected if they “consciously disregarded a substantial risk that his communications would be viewed as threatening violence”.¹⁸ This nuanced standard acknowledges that online communication can lack context and that a speaker can be held liable even without a subjective intent to harm, as long as they acted with reckless disregard for how their words would be perceived.¹⁸

3. Defamation

Defamation is a false statement of fact that injures a person’s reputation.¹⁰ To prove defamation, a plaintiff must show that a false statement of fact was communicated to a third party with a level of “fault” and that it caused damage to their reputation.¹⁹ A critical distinction exists in defamation law between private individuals and public figures. For a private individual, the plaintiff generally only needs to prove that the defendant was negligent in making the false statement.²¹ However, in the landmark case

New York Times Co. v. Sullivan (1964), the Supreme Court created a much higher standard for public officials and public figures.¹⁹ To prevail in a defamation claim, a public figure must prove that the defamatory statement was made with “actual malice”.¹⁹ This is a very high bar, requiring the plaintiff to demonstrate by “convincing clarity” that the defendant made the false statement “with knowledge that it was false or with reckless disregard of whether it was false or not”.¹⁹ This standard provides broad protection for criticism of public officials and public figures.

4. Other Categories

Other narrowly defined categories of unprotected speech include “fighting words,” which are face-to-face personal insults that are likely to provoke an immediate fight; obscenity, which is material that appeals to a prurient interest in a patently offensive way; and commercial advertising, which receives diminished protection compared to other forms of speech, allowing the government to ban false or misleading advertising.⁶

Table 1: Key Categories of Speech Under the First Amendment

Speech Category	Legal Definition	Key Legal Standard/Test	Relevant Landmark Supreme Court Case(s)
Political Speech	The articulation of opinions and ideas concerning government, public figures, and matters of public interest.	Receives the highest level of protection.	New York Times Co. v. Sullivan (1964)
Hate Speech	Speech that insults or demeans a person or group based on attributes like race, religion, or gender.	Not a recognized legal category of unprotected speech. Generally protected unless it falls into a different unprotected category like incitement or true threats.	Snyder v. Phelps (2011), R.A.V. v. City of St. Paul (1992)
Incitement	Advocacy of the use of force or illegal action.	The Brandenburg test: The speech must be “directed to inciting or producing imminent lawless action” and be “likely to incite or produce such action.”	Brandenburg v. Ohio (1969)
True Threats	Statements where the speaker intends to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.	Must be a serious expression of intent to harm. Legal standard has evolved to a “recklessness” standard in online contexts, meaning the speaker “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”	Watts v. United States (1969), Counterman v. Colorado (2023)
Defamation	A false statement of fact that harms a person’s reputation.	For public figures, the plaintiff must prove “actual malice,” meaning the statement was made with knowledge of its falsity or with reckless disregard for the truth. For private individuals, a negligence standard generally applies.	New York Times Co. v. Sullivan (1964)

Part III: The Public/Private Divide: The First Amendment in Institutions and the Workplace

The First Amendment is not a universal shield against all consequences for speech. Its protections are directly tied to the “state action” doctrine, a fundamental legal principle that dictates its application. This doctrine holds that the First Amendment restrains only government actors, such as public universities and government agencies, and not private individuals or organizations.⁵ This distinction is the most important factor in understanding the legal and institutional repercussions for individuals who make controversial remarks.

A. Student Speech: The “Schoolhouse Gate” and Its Ambiguities

In the landmark case Tinker v. Des Moines (1969), the Supreme Court affirmed that students in public schools “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”.⁷ The Court held that a public school can only restrict student speech if it “materially or substantially interfere[s]” with the school’s operation or “invade[s] the rights of others”.²⁴ The Court made it clear that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression”.²⁴ This high standard is designed to protect unpopular or controversial viewpoints, ensuring that students can express themselves even if others find their opinions disagreeable.²⁴

While the “substantial disruption” test is well-established, the legal meaning of “invasion of the rights of others” remains ambiguous.²⁶ The Supreme Court has never precisely defined this phrase, but lower courts and legal experts have generally interpreted it narrowly to apply only to targeted, severe, or pervasive conduct that causes tangible harm, such as direct physical interference or severe harassment.²⁶

B. The Public/Private Distinction in Practice

The legal framework governing student and employee speech changes dramatically depending on whether the institution is public or private.

Public Universities: As government entities, public universities are legally bound to uphold the First Amendment rights of their students and faculty.²² This means they cannot discipline students for speech simply because it is controversial or offensive, unless it falls into one of the narrow, unprotected categories or causes a material disruption.²⁷
Private Universities: Private universities are not directly subject to the First Amendment, which limits only government action.²² For students at private institutions, the legal relationship is often contractual. A private university’s speech policies are governed by the promises they make in their student handbooks and promotional materials.²⁸ If a private college explicitly states that it values other commitments, such as a specific moral or religious code, more highly than free expression, it has greater leeway in restricting speech.²⁸ However, if an institution advertises itself as a bastion of free thought and expression, it can be held legally accountable for violating those promises.²⁸

C. Employee Speech: The Rules of the Workplace

The First Amendment’s protections also vary significantly in the workplace.

Public Employees: Public employees, as government workers, have limited First Amendment protection. The Supreme Court has held that their speech is protected only when they are speaking “as a private citizen on a matter of public concern”.³⁰ Even then, a court must balance the employee’s right to free speech against the government’s interest in running an efficient and effective workplace.³⁰
Private Employees: Private employees generally do not have a constitutional right to free speech in the workplace.²³ A private employer can regulate or curtail employee speech to establish the desired workplace environment, such as by banning political discussions or the use of curse words.²³ While there are some protections for certain types of speech under federal and state laws—such as discussing wages, filing a discrimination complaint, or engaging in “concerted activity” under the National Labor Relations Act—these are statutory rights, not constitutional ones.²³ A private employee can be disciplined or fired for making a statement that is perfectly protected in the public square, such as an unpopular or controversial remark about a public figure.³⁰

Table 2: Rights in Public vs. Private Contexts

Context	Governing Legal Framework	Key Test/Standard	Limitations
Public University Student	U.S. Constitution (First Amendment)	The Tinker test: Speech can be restricted if it “materially or substantially interferes” with the school’s operation or “invades the rights of others.”	Restriction is permissible only for a specific, constitutionally valid reason, not merely to avoid discomfort or unpopular viewpoints.
Private University Student	Contract Law (University Handbooks & Policies)	The university’s published policies. The institution can be held accountable for breach of contract if it violates its own stated commitments to free speech.	The institution’s policies govern. If the school clearly states it values other commitments more highly than free speech, it has more leeway.
Public Employee	U.S. Constitution (First Amendment)	Speech is protected when made “as a private citizen on a matter of public concern” and the individual’s right outweighs the government’s interest in an efficient workplace.	Speech is not protected when made as part of the employee’s official duties. The government has significant power to regulate speech to ensure workplace efficiency.
Private Employee	Employment Law (State & Federal statutes, not the Constitution)	Employers can regulate speech to create a desired workplace environment.	The employer cannot restrict “protected concerted activity” under the National Labor Relations Act or retaliate against employees for complaining about discrimination.

Part IV: Case Studies and Contemporary Challenges: Applying the Legal Framework

The legal principles governing freedom of speech are not abstract concepts but are continually tested and shaped by real-world events. The recent incidents involving Texas students making controversial remarks about the death of conservative activist Charlie Kirk provide a powerful lens through which to examine the interplay between the law, institutional policy, social media, and political pressure.

A. The Charlie Kirk Incidents: Legal Analysis of a Modern Media Firestorm

The viral videos of two students mocking Charlie Kirk’s death led to swift and severe institutional consequences, including expulsion and arrest.³³ A legal analysis of these two cases reveals the critical distinction between constitutionally protected speech and unprotected conduct.

1. The Texas State University Student Case

A student at Texas State University was identified and removed from the university after a video showed him mocking Kirk’s death, slapping his neck, and using offensive language, including a racial slur.³³ The video quickly gained traction, and Texas Governor Greg Abbott posted it on social media, demanding the student’s “immediate expulsion”.³³ The university president, in a statement released just six hours later, announced the individual was “no longer a student at TXST,” citing that the “behavior that trivializes or promotes violence is reprehensible”.³⁵

The legal justification for the university’s action is complex and potentially tenuous from a free speech perspective. The student’s verbal remarks and mocking gestures, while deeply offensive and widely condemned, would likely be considered protected “hate speech” under the First Amendment.⁸ The speech does not appear to meet the high standard of a “true threat” or “incitement to imminent lawless action,” as it was not directed at a specific person with the intent to cause harm or likely to provoke immediate violence.⁹ However, the student also engaged in conduct that could violate university policy, such as climbing a statue.³³ The university’s statement condemned both the “behavior” and the promotion of violence, suggesting the punishment may have been legally justified on the grounds of violating a conduct policy rather than a speech policy.³⁵ This situation demonstrates the legal tension between punishing speech that offends and punishing conduct that violates rules. The intense public and political pressure from the governor raises concerns that the university’s decision may have been influenced by factors external to its code of conduct, potentially using the student’s conduct as a pretext to punish his offensive, but otherwise protected, speech.

2. The Texas Tech University Student Case

In a separate incident at Texas Tech University, a student was expelled and arrested for misdemeanor assault after a video showed her arguing with another student and flicking his hat.³⁴ The female student, identified as Camryn Giselle Booker, had engaged in a confrontation in a campus “free speech zone” where she made profane remarks about Kirk’s death.³⁴ Governor Abbott also condemned her actions, stating that “behavior like that celebrating an assassination is wrong in a civil society”.³⁴

Unlike the Texas State case, the legal justification for the university’s action is much clearer. The student’s arrest for misdemeanor assault provided a clean, legally defensible basis for disciplinary action.³⁴ The assault, defined as an illegal act, is not protected by the First Amendment.¹³ While the student’s verbal remarks may have been protected expression, the physical conduct of flicking the hat constituted an illegal act and a violation of the student code of conduct. This case serves as a powerful illustration of the legal distinction between speech and conduct: while the First Amendment may protect the expression of a viewpoint, it does not immunize a person from the consequences of illegal actions.¹³

B. The Role of Social Media and Off-Campus Speech

The Charlie Kirk incidents highlight the legal challenges of social media in the context of institutional punishment. The off-campus origin of the Texas State student’s post and its rapid spread caused an on-campus disruption in the form of widespread public outrage and political pressure. This presents a complex legal scenario, as courts continue to grapple with how to apply the “substantial disruption” standard to off-campus online speech.

The Supreme Court has recently provided some guidance on this matter in the case of Mahanoy Area School District v. B.L. (2021), where it held that a school could not punish a student for an off-campus, vulgar social media post that did not target any individual and was not sufficiently disruptive.²⁷ The Court noted, however, that certain off-campus speech, such as “serious or severe bullying or harassment targeting particular individuals” or threats, could justify a school response.²⁷ The Texas cases demonstrate that when off-campus speech gains wide attention and generates significant on-campus or political disruption, public universities may feel pressure to act, and the legal analysis becomes more complex, especially when the speech is accompanied by conduct that could be deemed a violation of a specific policy.

Part V: Conclusion and Recommendations

The First Amendment to the United States Constitution stands as a formidable check on the power of government to restrict speech. Its protections are broad, encompassing a wide range of expression, including speech that many find offensive, disagreeable, or even hateful. The evolution of its meaning through history and landmark jurisprudence demonstrates a consistent trajectory toward protecting even unpopular views from government censorship.

The analysis of the law and recent case studies yields several key conclusions. The single most important factor in determining the consequences of controversial remarks is whether the speaker is a private citizen or an employee/student of a public or private institution. A public university student has strong constitutional rights to express their views, which are protected unless their speech incites imminent lawless action, constitutes a true threat, or causes a substantial disruption on campus. The case of the Texas Tech student demonstrates that when controversial speech is paired with unprotected conduct, such as assault, institutions have a clear legal basis for disciplinary action. The case of the Texas State student, however, reveals a more ambiguous scenario where legal principles may have been obscured by intense political pressure, highlighting the risk of pretextual punishment. For private employees and private university students, the First Amendment offers no direct protection; their rights are contractual and are governed by the policies of their respective institutions.

In an era of rapid social media dissemination and intense political polarization, it is imperative for individuals and institutions to understand this nuanced legal landscape.

A. Guidance for Individuals

Know the Rules of Your Institution: Students at public universities should understand that their constitutional rights are strong but not absolute. They should familiarize themselves with their university’s code of conduct and be aware that while their offensive opinions are likely protected, conduct that violates rules or causes a material disruption is not. Students at private universities and private employees must understand that their relationship is governed by contract and policy, and they should be aware of the limitations on speech in their student handbooks or employment contracts.
Distinguish Speech from Conduct: All individuals should understand that the law draws a firm line between expression and overt acts. Engaging in offensive speech may be protected, but that protection ends when it is accompanied by actions that violate laws or institutional policies.
Exercise Caution with Digital Communication: The legal landscape for online speech is still evolving. Individuals should be aware that even if a statement is intended as a joke or hyperbole, it may be interpreted as a true threat if it consciously disregards the substantial risk of being perceived as such.

B. Guidance for Institutions

Uphold Constitutional Obligations: Public universities must act independently of political pressure. Their policies must be content-neutral and applied consistently, regardless of the viewpoint being expressed. A university’s response to controversial speech must be based on a legitimate violation of a clearly defined rule, not on the offensiveness of the message or public outcry.
Educate the Community: Institutions of all types, public and private, should proactively educate students and employees on the principles of free speech. This education should clarify the distinction between offensive and unprotected speech, promote an understanding of the legal limits on expression, and encourage a campus climate that fosters civil discourse and debate, even on topics that are difficult or controversial.