Protecting Free Speech in the Face of Government Retaliation

The Trump administration is enthusiastically abusing its power to intimidate anyone who criticizes its policies, and to silence those who won't fall in line. Now, using a long-standing government tactic, the administration is leveraging a tragedy to justify its censorship campaign.

The government is villainizing and threatening to punish anyone who dares to express anything but unequivocal support for its political views. In the last week, lawmakers have bullied schools into taking disciplinary action against teachers who have criticized Charlie Kirk’s political views. Police officers are being put on leave for similar reasons. Federal agencies are disciplining public servants for expressing views contrary to those supported by the administration. Journalists and the media companies they work for have also felt a McCarthy-like pressure from the government, with popular late-night hosts losing their jobs after engaging with the ideas of a free speech provocateur whose tagline was “Prove me wrong.”

This forceful crackdown is part of a troubling pattern we've seen emerge during the Trump administration. In the last week, alone, administration officials — including Vice President JD Vance, White House Deputy Chief of Staff Stephen Miller, and Attorney General Pam Bondi — have encouraged the public to call the employers of anyone expressing views disfavored by the government; vowed to use every resource the Department of Justice and Homeland Security have to identify, disrupt, and destroy groups the administration perceives to be an enemy; and claimed that “there's free speech and then there's hate speech” while threatening to “absolutely target you, go after you, if you are targeting anyone with hate speech.”

For more than 105 years, the ACLU has defended the First Amendment as a cornerstone of our democracy, protecting every person’s right to speak out by ensuring the government does not use times of crisis — or labels like hate speech — as an excuse to censor views it doesn’t like. For that reason, the ACLU has unwaveringly defended the speech rights of everyone, from communists, Nazis, and Ku Klux Klan members to people accused of terrorism, climate change protesters, and gun rights organizations, to pornography companies, flag burners, and civil rights leaders.

This might seem radical to some, but as “In Defense of American Liberties,” a book about the history of the ACLU, once explained, “Critics who accuse the ACLU of taking the Bill of Rights to extremes are, in effect, voicing a more fundamental complaint about the Constitution, the courts, and some of the deepest impulses in American society.”

Our dogged, nonpartisan history of protecting civil liberties for all is what allows us to speak with authority in this tense moment and raise the alarm about the censorship campaign the Trump administration is trying to wage against the public.

At a moment when the government is using every tool at its disposal to push ideological conformity, here are five reminders about your First Amendment rights:

1. The First Amendment protects the rights to free speech, belief, and association. The government may not retaliate against people or groups because they are criticizing someone’s political views — especially when the government is trying to silence views it doesn’t like.
2. Censorship doesn’t change minds, but open conversation and debate do. To protect public debate, the First Amendment prohibits the government from punishing speech even when it is controversial or offensive. The Supreme Court put it best in Texas v. Johnson (1989): “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Without that level of protection, any “debate” would be stale and stilted, taking away the opportunity for people to discuss ideas, persuade others, or make up their own minds.
3. American law does not recognize “hate speech” as a legal category. While the First Amendment does not protect incitement — speech that is intended and likely to cause imminent violence, as established in Brandenburg v. Ohio, litigated by the ACLU — or true threats, an expression of a serious intent to commit a violent act against another person, speech considered to be hateful is not enough to qualify. Indeed, whether speech is hateful is typically a matter of opinion. As Supreme Court Justice John Marshall Harlan II said in Cohen v. California (1971), “one man’s vulgarity is another man’s lyric.” Posting an offensive joke or condemning someone else’s views in harsh terms is generally protected by the First Amendment, regardless of how much someone else doesn’t want to hear it.
4. The government cannot and should not respond to violence by infringing on First Amendment rights. Politically motivated killings not only take a loved one from their family and community, but also endanger the free and democratic exchange of ideas. Government actors should not further entrench that danger by using their power to suggest that certain ideas or criticism cannot be uttered in our society.
5. Government officials calling for people who expressed their political views to lose their jobs or face other punishment is unconstitutional. As the Supreme Court ruled just last year in NRA v. Vullo — a case where a Democratic government official was pressuring businesses to not work with the NRA — government officials can't use their power to pressure third parties into silencing or punishing speech they dislike. Full stop. Employers, media companies, and even state and local officials facing such pressure should remember that the First Amendment protects them from having to give in.

As history has shown, government actors seize on moments of tragedy and fear to impose ideological conformity. Such censorship is profoundly harmful to a free society — but it can be stopped if we stand together.