The Trump Administration's Misguided Approach to Free Speech

As the country grapples with the aftermath of Charlie Kirk's assassination, the Trump administration is pushing a narrative that is both misguided and potentially destructive to the very foundation of free speech. The administration's argument, echoing a familiar script that has been used for over a century, is that political speech can be blamed for causing violence, and therefore, should be punished. However, this approach is a frontal attack on the basic freedom that protects political beliefs by separating the expression of ideas from unlawful action.

Key Takeaways:

• The American understanding of free speech, dating back to Supreme Court Justice Oliver Wendell Holmes, distinguishes between protected political speech and illegal action, separating the expression of ideas from the choice to take unlawful action.
• This distinction, known as the "clear and present danger" test, is designed to protect political beliefs and prevent the suppression of speech that the government disagrees with.
• The Trump administration's strategy of blaming liberal speech for causing violence is a deliberate attempt to suppress speech it doesn't like, playing into the administration's narrative of a "clear and present danger" that requires punishment.
• The Supreme Court's 1969 ruling in Brandenburg v. Ohio further protected speech by requiring two conditions to be satisfied before speech can be punished as incitement: the speech must be intended to produce immediate illegal action, and it must be likely to cause that action.
• Every judge in every court is bound by these tests, and it is imperative that they follow the established precedent to protect free speech.

Statistics:

• Since World War I, there have been over 100 cases involving free speech challenges, with the government attempting to suppress speech it deemed a "clear and present danger."
• The Supreme Court has consistently upheld the principle of free speech, protecting even speech calling for the violent overthrow of the federal government, absent the immediacy and probability of the speech causing that result.
• In Brandenburg v. Ohio, the court found that incitement to violence or other lawless action is constitutionally protected, except in cases where the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Sources:

• Noah Feldman, "The Trump Administration's Misguided Approach to Free Speech," The TribLIVE, September 23, 2025
• Schenck v. United States, Supreme Court, 1919
• Brandenburg v. Ohio, Supreme Court, 1969
• Tribune Content Agency, LLC.