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This is the first in a series of essays looking at the challenges of a commitment to free speech.
Immediately after Donald Trump’s 2024 presidential election victory, Mark Zuckerberg, the billionaire CEO of Meta Platforms, publicly announced that the Biden administration had been pressuring him to create a massive censorship apparatus that would remove speech the government found harmful or offensive from his social media sites. Zuckerberg described Trump’s win, at least implicitly, as a liberation: Meta was now to become the forum for the free exchange of ideas its founder had always hoped it’d be. “We are going to work with President Trump to push back on governments around the world that are going after American companies and pushing to censor more,” he pledged [ [link removed] ].
Zuckerberg’s about-face sparked euphoria among conservative media. “Did Trump Just Save Free Speech?” asked a headline in the Washington Times [ [link removed] ]. “Mr. Trump’s re-ascension is igniting a new era of free speech and freedom…” the piece went on to claim. Not long after, Zuckerberg, who only three years ago ran slick commercials encouraging young adults to embrace “content moderation [ [link removed] ],” sat on the inaugural platform next to Trump’s most loyal supporters and watched the 47th president take the oath of office. He looked on as Trump vowed in his address [ [link removed] ] that he would “immediately stop all government censorship and bring back free speech to America.”
Later that day, Trump signed an executive order [ [link removed] ] titled “Restoring Freedom of Speech and Ending Federal Censorship.” In a headline for her column in the Orange County Register, Susan Shelley exceeded the optimism of the Washington Times piece, claiming that “President Donald Trump has restored freedom of speech [ [link removed] ] in the United States,” as if with a single signature the problem of state censorship in America had finally been solved.
But Trump certainly hasn’t “saved” or “restored” free speech, nor does he intend to. We know this because Trump has a long-standing habit of publicly announcing those he hopes to censor, and he does so with such frequency that the habit may even be a compulsion. Shortly before his executive order, for instance, he explained to Fox News that hopes to imprison those who burn the American flag [ [link removed] ] in protest. “You should get a one-year jail sentence if you do anything to desecrate the American flag.” Acknowledging the inconvenient fact that the Supreme Court had already expressly ruled flag-burning to be constitutionally protected speech, he went on [ [link removed] ] to explain “Now, people will say, ‘Oh, it’s unconstitutional.’ Those are stupid people.” Anyone who expects a commitment to freedom of expression more profound, or reasoning more nuanced, than this from the White House over the next four years probably believes the claim in Shelley’s headline.
Trump also wants to “open up” defamation laws [ [link removed] ] so it’s easier to sue news media for publishing stories that he’s convinced wrongly injure his reputation, which he’s been doing a lot of lately. Trump is about as likely to “end federal censorship” as he is to high-five illegal immigrants as they cross into the United States from Mexico.
Trump falsely presents himself as a free speech absolutist in his executive order by misappropriating the idealistic language of the First Amendment. Politicians have been doing this, and getting away with it, as far back as the ratification of the amendment in 1791. Because the freedom of speech guaranteed by the Constitution is described at a high level of abstraction and without details about how it should be applied, they speak as if they want us to enjoy all that it promises. However, Trump’s order is worse than just a false promise: It perpetuates long-standing popular confusion about what the constitutional right to freedom of speech is and how to support it. The order does so in three ways.
The first is that it continues the practice of defining free speech according to whose ox is being gored. For all my criticism, I actually support the contents of the order, and I suspect it will protect some speech—for Trump and his followers, who, especially after the past four years, are entitled to speak freely, like everyone else. However, this is very different from protecting free speech. As Justice Oliver Wendell Holmes Jr. famously explained [ [link removed] ] nearly a hundred years ago, free speech means “freedom for the thought that we hate,” not merely for “those who agree with us.” I suspect Anthony Fauci, Liz Cheney and Mark Milley, for instance, aren’t comforted by Trump’s order, nor should they be. The order affirms the ancient adage [ [link removed] ]: “Free Speech For Me—But Not For Thee.”
The second problem is that the order perpetuates the common tendency of not just politicians but all Americans to embrace freedom of expression in the abstract while abandoning it in practice. Trump has already pointed his finger at flag-burners and hostile journalists as beneath the First Amendment, just as his predecessor Joe Biden did with white supremacists and vaccine skeptics. As a Platonic ideal, freedom of expression is majestic and beautiful. In action, it can be awfully ugly—as ugly as defending the publication of Nazi manifestos or misogynistic pornography. Free speech absolutism means insisting on liberty both in theory and practice, on paper and in the courtroom. This is simply too much for most people.
The third problem is that Trump blurs the meaning of “free” and “speech” so that both terms are ambiguous and he can define them however he likes. The order refers to “freedom of speech,” but it never explains that these words carry fairly narrow legal definitions and that they were never meant to allow Americans to express any ideas they choose without punishment. In fact, “speech” as used in the First Amendment is a legal term of art that courts often interpret in ways that suppress ideas, and the word “free”—well, let’s just say that those quotation marks are well-placed.
Of the three problems, this last one is the most serious. Trump’s order blows more smoke into an already clouded conversation. Until we develop a shared language and a common understanding that better reflects how courts have defined the right to freedom of expression, we’ll remain vulnerable to this type of demagoguery—and we’ll no doubt get a great deal more of it.
The Evolution of the First Amendment
The First Amendment refers to “the freedom of speech, or of the press,” providing rather weak protections by today’s standards. It primarily sought to enforce the English common law right to be free from “prior restraints” on speech (the requirement that writings get state approval before publication) but permitted the government to punish virtually any speech for any reason after it had been spoken. During the 17th century, the British had developed an onerous licensing system [ [link removed] ] that limited what publishers could share with readers. England had outgrown the licensing system by the time of the American Revolution, but the founding generation was determined to prevent its return.
While some scholars argue that the First Amendment was also meant to promote self-governance by protecting a right to criticize those in power, we can at least be certain that the First Amendment, as then understood, didn’t protect much in that regard. A mere eight years after it was ratified, a sitting congressman, Matthew Lyon [ [link removed] ], was fined and sentenced to four months in a federal jail merely for accusing President John Adams of having “an unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice,” among other defects of character. There likely isn’t a national politician today who doesn’t have worse insults leveled against him in the comments section of his Instagram posts.
Until the beginning of the 20th century, the First Amendment was largely a dead letter. The Espionage Act of 1917 and the Sedition Act of 1918, both designed to crush domestic opposition to U.S. involvement in World War I, changed that. With these statutes, the government blurred the line between dissent and disloyalty. Federal courts began sentencing nonviolent war protesters to a decade or more in prison. Popular discussion of important political issues was constricted by a pall of fear.
Concerned about the health of our democracy, judges and law professors began urging a more expansive understanding of the First Amendment. No Supreme Court justice did more to rouse the First Amendment from its long slumber than the aforementioned Oliver Wendell Holmes Jr. In his first Espionage Act case, Holmes’ mind began to open to a wider understanding of the First Amendment [ [link removed] ]: “It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints,” he wrote.
Soon thereafter, he and his colleague Justice Louis Brandeis insisted that in addition to serving a democratic purpose, the amendment was also necessary for intellectual enlightenment and social improvement. Even those who spread radical, insurrectionist and utopian ideas couldn’t be punished so long as their activity was limited to expression. “That at any rate is the theory of our Constitution,” Holmes wrote. The Holmes-Brandeis version of a robust First Amendment spread, especially among other justices on the court, and quickly came to define our popular understanding of free speech.
In 1927, for the first time, the court overturned [ [link removed] ] the criminal conviction of a defendant who’d been convicted of promoting anti-government views. In another case involving a political radical that year, Justice Brandeis suggested that the First Amendment was intended to do more than just promote political discussion and satisfy intellectual curiosity. It also served the higher purpose of helping us become better human beings by shielding our creative and cognitive development from state interference. “Those who won our independence believed that the final end of the state was to make men free to develop their faculties,” he insisted [ [link removed] ].
A consensus was emerging, on and off the court, that the First Amendment should protect much more than it ever had in the past. Just how much more, however, remained unclear.
Then, in the 1942 case of Chaplinsky v. New Hampshire [ [link removed] ], the court expounded a more clearly defined constitutional definition of the term “speech.” It did so while announcing what’s become known as the “categorical approach” to the freedom of speech—an approach that has determined how courts have interpreted the First Amendment ever since. It uses a balancing test to identify “low-value” speech categories that are unprotected by the amendment and can be regulated like lawless conduct. “There are certain well-defined and narrowly limited classes of speech,” the court writes [ [link removed] ], “the prevention and punishment of which has never been thought to raise any Constitutional problem.”
As far as the First Amendment is concerned, speech that falls within any of these low-value categories isn’t really speech at all. This is because these types of speech “ha[ve] no essential part of any exposition of ideas, and are of such slight social value that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Or, as Justice Antonin Scalia said [ [link removed] ] while hearing arguments in a 2007 case, the First Amendment only protects speech that has some “redeeming social value.”
The court went on to list a few of these categories. They include “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Walter Chaplinsky called a cop a “God-damned racketeer” and a “damned Fascist,” which put his speech squarely into the low-value “fighting words” category, so the court unanimously upheld his “breach of the peace” conviction.
Since 1942, the court has refined the list of low-value speech categories and recognized a number of others, including true threats, incitement and child pornography. Because these categories receive no constitutional protection, when the court hears cases that require it to determine which communications fit into them, the court is reshaping the contours of our national discussion. If it defines these low-value speech categories too broadly, as I think it did in Chaplinsky, it deprives speakers of the ability to share ideas that are important to them (as it was important to Chaplinsky to give this cop a piece of his mind).
On the other hand, if the Supreme Court defines a low-value speech category too narrowly, and protects speech perceived as too dangerous or harmful—as many think it did when it ruled [ [link removed] ] that child pornography doesn’t include drawings, computer-generated images or any other pictures that don’t document actual child abuse—it can invite public outrage and the wrath of the other two branches of government. The Constitution insulates justices from the political pressure with lifetime appointments, in part, so it can perform this counter-majoritarian function.
An Absolutist Approach to Free Speech
Two of the justices in Chaplinsky’s case, Hugo Black and William O. Douglas, grew to regret the categorical approach. Just as Justices Holmes and Brandeis responded to the repression of the First Red Scare with a deeper commitment to free speech, so too did Justices Black and Douglas with the Second. They would ultimately become the only two free speech absolutists ever to serve on the court. They created a standard—the “full protection” or “expression-action” test—that rejected the categorical approach and, for the first time in our history, really, provided a viable, working definition of free speech absolutism, albeit only in nonbinding minority opinions.
According to the Black-Douglas full protection test, only speech that is inseparable from lawless action can be regulated by the government. “Advocacy which is in no way brigaded with action should always be protected by the First Amendment. That protection should extend even to the ideas we despise,” Justice Douglas wrote [ [link removed] ]. No balancing, no categories. The only issue the court needs to consider is whether the behavior being regulated is expression, which communicates ideas, or mere physical conduct, which doesn’t. Speech, as such, is always protected. Only when the state can’t get at the lawless conduct without targeting speech at the same time—as when a used car salesman lies about rolling back the mileage on an odometer to defraud a customer—can the state punish a speaker.
Justice Black embodied this approach perfectly when other members of the court struggled to define the low-value speech category of “obscenity.” He hated pornography, so he didn’t even bother looking at the evidence in these cases. “I’ve always detested it…. Why should I go and look at them when it doesn’t make any difference what the talk is … I don’t think it violates any law [ [link removed] ].” While the majority pored over books, magazines and films to determine whether they were obscene and therefore unprotected, Justices Black and Douglas had the same libertarian answer in every case, sometimes sight unseen.
Justices Black and Douglas rebelled against the categorical approach in cases involving other low-value speech categories. In the landmark 1964 case of New York Times Co. v. Sullivan [ [link removed] ], rightly celebrated as a triumph for freedom of the press, the majority of the court decided that it should be difficult for political officeholders to sue and collect damages from news organizations. The New York Times had run an ad in support of the civil rights movement that described repressive police conduct in Montgomery, Alabama. The ad contained factual errors, and a local jury had ordered the Times to pay Montgomery Public Safety Commissioner L.B. Sullivan $500,000.
The Supreme Court affirmed that defamation was not protected speech. However, it also found that suits filed by state officials like Sullivan, whose work was a matter of public concern, chilled important reporting and unduly constricted the national political conversation. From now on in such cases, defamation would be narrowly defined to only those cases in which the speakers either knowingly lied or recklessly disregarded the truth.
Justices Black and Douglas voted in favor of The New York Times, as one might expect. As with the obscenity cases, they did no balancing and didn’t care whether the speech fell into what their colleagues considered to be a low-value category. Defamation is speech, not action, and to them, all speech is protected. “I base my vote to reverse on the belief that the First and Fourteenth Amendments … completely prohibit a State from exercising such a power,” Justice Black wrote [ [link removed] ].
Later, in the 1969 case of Brandenburg v. Ohio [ [link removed] ], the court sought to define the low-value category of incitement. Justices Black and Douglas agreed with the rest of the court that Ku Klux Klan leader Clarence Brandenburg’s conviction for telling his followers that it might be necessary to go to Washington, D.C., and attack government officials should be overturned. They once again argued that the court’s opinion didn’t protect enough speech. Speech hardly gets more loathsome and disruptive than Brandenburg’s racist rant delivered to a cadre of armed radicals standing next to a burning cross wearing white sheets. No matter: He had been convicted for speaking, not acting, so the Constitution protected him, full stop.
Not Even Absolutists Fully Embrace Absolutism
While the full protection test might seem straightforward, the line between expression and action can be frustratingly blurry. Whether speech that is mixed with lawless conduct, such as burning a draft card, should be punished is often a vexing question. “[A]ll expression has some physical element,” Yale Law professor Thomas I. Emerson explains, whether that expression is projecting one’s voice, moving a brush on a canvas or pressing keys on a keyboard. The full protection test asks whether expression or action is the activity’s “dominant element [ [link removed] ]” and which of the two the government intends to punish.
Looking at a drawing of the Prophet Muhammad, for instance, is certainly protected by the First Amendment. So is showing it to a friend. However, shoving it in front of an unwilling observant Muslim with the intent to shock and offend him probably isn’t. Professor Emerson lists a long series of similar examples in his 1970 book, “The System of Freedom of Expression.” Lying to the police or on the witness stand has always been a crime, as has leaking classified government documents and selling another’s copywritten material, even though these activities seem more expressive than physical in nature.
Not even the most fervid free speech absolutist—except perhaps a few utopian dreamers—has ever even hoped that the First Amendment would allow us to speak that freely. It’s the job of courts to resolve such issues on a case-by-case basis. And an absolutist judge could decide these close cases either way. This is another way of saying that not even absolutist justices like Justices Black and Douglas protected speech absolutely.
Moreover, there were some cases in which the two absolutists’ commitment to absolutism seemed to waiver. In an opinion [ [link removed] ] that Trump might appreciate, Justice Black once reasoned that burning an American flag was more action than speech, for instance. And one can’t be sure if their absolutism could withstand the challenges presented by difficult contemporary issues that were unknown in their era, like deep fake technology, revenge pornography or coordinated calls to violence on the internet.
It's Not Easy Being Free
While it may be impossible to be a free speech absolutist literally speaking, Justices Black and Douglas demonstrated that it’s possible to be one constitutionally speaking. In the context of the course of their long service on the bench—34 and 36 years, respectively—it’s easy to see why there haven’t been any justices, before or since, who have shared their libertarian approach. Being a free speech absolutist isn’t easy.
Justices Black and Douglas sought to help remedy the three problems Trump worsens in his executive order. Their absolutist rulings were nonpartisan and clear, and they applied our lofty free speech principles to concrete everyday situations. Even when you disagree, you learn by reading their opinions.
They were distinct from Trump in another way that is perhaps even more important. At some point, being a free speech absolutist requires you to stand shoulder to shoulder with the damned, even when you personally can’t stand them. Justices Black and Douglas vindicated the rights of even the most loathsome and unpopular defendants—bigots, pornographers and accused traitors. They often did so in the spirit of defiance and with eloquence.
When McCarthyism was at its zenith, and whispers of politically independent thought were destroying careers, Justices Black and Douglas voted to overturn [ [link removed] ] the convictions of the leaders of the Communist Party of the United States. In a free society with a First Amendment, Justice Douglas wrote [ [link removed] ], even these “miserable merchants of unwanted ideas” had the right to speak. No less steadfast in his opinion in the same case, Justice Black expressed [ [link removed] ] “hope … that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.”
One can’t do this without displaying a certain amount of political courage. While Donald Trump showed tremendous physical courage when he raised his fist after being shot last summer, he’s yet to show the Black-Douglas kind of courage that is required of a free speech absolutist—courage in service to a principle greater than yourself.

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