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For most of American history, free speech did not exist in the United States.
Dissidents were commonly thrown in prison, often for many years, when the government disagreed with their views. Near the end of World War I, the great union leader Eugene Debs was sentenced to 10 years in prison for giving a speech opposing the draft, and his conviction was upheld by a unanimous Supreme Court. In 1951, as Sen. Joseph McCarthy was ramping up his witch hunts against suspected communists, the Supreme Court blessed his and similar efforts by upholding the convictions of several individuals who did nothing more than try to organize a (wildly unsuccessful) Communist Party in the United States.
This suppression of free expression wasn’t restricted to unpopular political ideas. Under the federal Comstock Act — which made it a crime to mail any “thing” for “any indecent or immoral purpose” — and similar state laws, anti-sex crusaders prosecuted authors, artists, booksellers, and art gallery owners alike for distributing pretty much anything that touched on the topic of sex. Anthony Comstock, the Comstock Act’s namesake, once successfully brought charges against a gallery owner for selling a reproduction of Alexandre Cabanel’s “The Birth of Venus,” a masterpiece of nude painting that currently hangs in the Metropolitan Museum of Art.
All of that is to say the kind of First Amendment freedoms that most Americans take for granted, and especially freedom of speech and the press, aren’t as baked into the law as one might think — and are actually quite fragile. The Supreme Court didn’t meaningfully enforce that amendment until the 1960s, when it handed down a pair of decisions protecting political agitators and guaranteeing freedom of the press. And the protections enshrined in those decisions could easily disappear overnight if the Court loses its current, pro-free speech majority.
The good news for proponents of free speech is that, based on the Court’s most recent First Amendment decisions, it does appear to have a 6-3 majority in favor of preserving the post-1960s understanding of that amendment. The bad news is that there are three justices willing to drastically shrink the protections offered by that amendment. And those three could easily swell to five if former President Donald Trump gets to appoint more justices to the Court.
Justice Sonia Sotomayor, one member of the Court’s pro-free speech majority, is now 70. Chief Justice John Roberts, another member of that majority, will turn 70 shortly after the next president is inaugurated. And there’s always some risk that any justice could experience a catastrophic health event that forces them off the Court.
At the Court’s right flank stand two justices, Clarence Thomas and Neil Gorsuch, who have openly called for New York Times v. Sullivan (1964), the fount of press freedom in the United States, to be overruled. Trump also called for Sullivan to be overruled in a 2022 court filing. Meanwhile, Justice Samuel Alito, in a pair of opinions joined by Thomas and Gorsuch, spent the last two years unsuccessfully fighting in favor of laws that seem designed to challenge the modern understanding of free speech.
These two cases, known as Netchoice v. Paxton (2022) and Moody v. Netchoice (2024), concerned Texas and Florida laws that would essentially allow the Republican governments of those states to seize control of content moderation at major social media outlets like Facebook or YouTube.
These laws, moreover, are just two of many state laws enacted after Trump left office that challenge the Court’s post-1960s understanding of free speech. In Florida alone, others include the state’s infamous “Don’t Say Gay” law (which was eventually weakened by a legal settlement), Republican Gov. Ron DeSantis’s quizzical battle with Disney, and a law targeting drag shows.
Meanwhile, annual meetings of the Federalist Society, the powerful legal group that played an enormous role in selecting Trump’s judges during his first term in office, have become a showcase of complaints that conservatives are sometimes socially and professionally ostracized for expressing views that many people find offensive — one speaker complained about a student who was allegedly shunned after he claimed that men make different career choices than women for genetic reasons, for example — often paired with reactionary proposals to use the government to bring cultural institutions like universities and the media to heel.
Of course, only some of these proposals have actually become state law, and some of them will likely never become law. But the Federalist Society wields such an extraordinary amount of influence over Republican judicial appointments that the zeitgeist within the society rapidly makes its way into federal court opinions, and even into Supreme Court opinions.
So, if Trump wins, and if he gets to fill just two more seats on the Supreme Court, Americans could swiftly lose First Amendment rights that have been secure for nearly six decades.
Two competing visions of free speech
As Chief Justice Fred Vinson wrote in Dennis v. United States (1951), “no important case involving free speech was decided by this Court prior to Schenck v. United States” in 1919. Schenck, moreover, offered no hints that Americans would one day live in a nation where art, literature, and political speech all enjoyed robust constitutional protection. It unanimously upheld the convictions of men who distributed anti-draft literature to conscripts.
Yet, while the Court’s earliest First Amendment cases were a disaster for the cause of free speech, early 20th-century Justice Oliver Wendell Holmes eventually developed a framework, albeit in dissenting opinions, which continues to shape First Amendment law to this day: The government must not interfere in what Holmes referred to as “free trade in ideas.” Meanwhile, private companies — including newspapers, Hollywood studios, and newer forms of media like, say, Facebook — would remain free to say what they want and to shun whichever ideas they choose.
The reason for this focus on government regulation of speech is simple. The state has a monopoly on the legitimate use of force, and can use the monopoly to crush dissenting voices — in Holmes’s words, to “sweep away all opposition.” Private speakers may be powerful and influential, but they cannot suppress their opposition. If you do not like what you read in the New York Times, you can subscribe to the Wall Street Journal. If you do not like a coworker’s ideas, you are under no obligation to invite them into your home. If that coworker is up for a promotion, their boss is under no obligation to promote them if they also find their ideas abhorrent.
Only the government is constrained by the First Amendment, because only the government can arrest, detain, or execute someone for speaking out of turn. And the First Amendment generally prohibits the government from interfering with Holmes’s marketplace of ideas.
The Netchoice cases, however, sought to upend this vision. The Florida and Texas laws at issue in those cases were an explicit attempt to use the government to elevate conservative voices. Indeed, the laws’ proponents were quite open about this fact. As Texas Republican Gov. Greg Abbott said of his state’s law, it was enacted to quash a supposedly “dangerous movement by social media companies to silence conservative viewpoints and ideas.”
Under this emerging Republican vision of the First Amendment, in other words, the government may manipulate the marketplace of ideas whenever it determines that one side’s ideas aren’t receiving a big enough platform.
The laws at issue in Netchoice are quite ham-handed, but they were written to give the impression that they were attempts to protect free speech. Texas’s law, for example, forbade the major social media platforms from removing or downgrading content because of the “viewpoint” expressed in that content. It also imposed very strict reporting requirements on the platforms, and required them to set up a rapid process that would allow users to appeal removal of content.
But these requirements weren’t just unconstitutional under longstanding Court decisions establishing that the government cannot tell media companies what they must print, they were practically impossible to implement. If YouTube cannot engage in “viewpoint” discrimination, for example, that means that it cannot remove a video posted by a literal Nazi who calls for the extermination of all Jews — unless it also removes all content that takes the position that Jewish people should not be exterminated.
This sort of requirement wouldn’t simply destroy the broadly inclusive communities many social media companies hoped to create, it would also destroy their business models. As the Verge’s Nilay Patel colorfully explained, running a profitable social media company “means you have to ban racism, sexism, transphobia, and all kinds of other speech that is totally legal in the United States but reveals people to be total assholes.” That’s because advertisers don’t want their ads to appear next to a burning cross or a swastika. And if this kind of content is not banned, advertisers will flee the platform, as they did when the social media site formerly known as Twitter loosened its content policies.
Similarly, the Texas law’s onerous requirements would have required the platforms to hire a small army of employees. In its brief challenging the Texas law, the social media industry complained that YouTube alone “would need to ‘expand’ its current appeal ‘systems’ capacity by over 100X — from a volume handling millions of removals to that of over a billion removals.” That’s the kind of hiring mandate that is likely to shut down a company.
In its zeal to prevent social media platforms from banning some right-wing voices, in other words, Texas managed to draft a law that could have shut down an entire industry, totally eliminating the ability of social media users to engage in free trade in ideas. The First Amendment quite obviously cannot tolerate such a law.
At least two justices would allow red states to shut down newspapers with malicious lawsuits
Thomas and Gorsuch, meanwhile, have a far less subtle plan to roll back press freedom — indeed, under their approach to the First Amendment, authoritarian state governments could quite easily shut down nearly any media outlet.
In the 1960s, the New York Times published a full-page advertisement, paid for by civil rights activists, which sought to raise money for “the struggle for the right-to-vote” in the Jim Crow South, and to pay for legal representation for Dr. Martin Luther King, Jr.
Unfortunately, the ad contained a few minor factual errors, such as misidentifying the song sung by student protesters at a particular protest (they sung “The Star-Spangled Banner” and not “My Country, ‘Tis of Thee”), and overstating the number of times Dr. King had been arrested (he’d been arrested four times, not seven). Pointing to these small errors, a Montgomery police commissioner filed a defamation suit against the Times, and Alabama’s courts awarded him $500,000 — more than $5 million in 2024 dollars.
That decision eventually came before the Supreme Court in the aforementioned New York Times v. Sullivan, which recognized that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.’” If media outlets could be hit with such expensive verdicts because of honest and regrettable mistakes, freedom of the press cannot exist, because every reporter will occasionally make a factual error similar to the ones at issue in Sullivan.
Accordingly, Sullivan ruled that, at least when someone makes a statement about a public figure regarding a matter of public concern, they cannot be sued for defamation unless they knew they made a false statement, or they acted with “reckless disregard” for the truth.
More broadly, Sullivan stands for the proposition that state governments cannot use defamation law to maliciously target the press. If a reporter makes a serious error, that reporter may still be liable for defamation. But governments that want to shut down a newspaper cannot simply wait until a reporter misremembers which song was sung at a rally, and then pounce with a multimillion dollar lawsuit.
Trump, Thomas, and Gorsuch, however, have all called for Sullivan to be overruled. In a 2022 legal filing, for example, Trump made the ahistorical argument that Sullivan should be abandoned because “it seems unlikely” that when the Court handed that decision down in 1964, it “envisioned a news outlet which seek [sic] to indoctrinate its audience rather than inform.”
In reality, partisan press has been part of the American landscape from the very beginning. One early American newspaper, for example, falsely (and racistly) labeled then-presidential candidate Thomas Jefferson “the son of a half-breed Indian squaw, sired by a Virginia mulatto father.”
Meanwhile, dissenting in Berisha v. Lawson (2021), Gorsuch suggested that defamation law “should be ‘almost exclusively the business of state courts and legislatures.’” Had Gorsuch’s view in Berisha prevailed, it would have allowed Alabama to target civil rights activists in exactly the same way they were targeted in the Sullivan case. And it would potentially allow Donald Trump to seek millions of dollars in damages from any reporter or news outlet that makes even a tiny error in a report about him.
So how worried should we be about the future of free speech if Trump wins?
Looming over all of this is the Federalist Society, the powerful association of right-leaning and far-right lawyers that played an enormous role in selecting Trump’s first term judges — and that is likely to play a similar role in any future Republican administration.
For many years, the legal right embraced the Holmesian view of the First Amendment. Indeed, if anything, Republican lawyers and judges tended to view the First Amendment even more expansively than their Democratic counterparts, because they often used the First Amendment to attack campaign finance laws.
Since Trump left office, however, many of the Federalist Society’s conferences and events have descended into increasingly paranoid complaint sessions about “cancel culture” and “wokeness.” In 2022, the society’s annual lawyer’s convention featured no less than four panels complaining about the fact that Federalist Society members sometimes feel unwelcome at law schools and in various institutions within the legal profession due to their conservative views.
Federalist Society speakers warn, in the words of lawyer Ashley Keller at a 2021 event, that “massive corporations are pursuing a common and mutually agreed upon agenda to destroy American freedom,” or as law professor Adam Candeub claimed that same year, that it is inevitable that members of the society will “be de-platformed.”
And the society appears eager to use the power of government to ward off this imagined future.
At the society’s 2021 gathering, speakers offered policy proposals ranging from legislation like Texas’s and Florida’s unconstitutional social media laws, to repealing bans on race and sex discrimination, to a vague and disturbing plan to “wield in state legislative chambers some degree of power to punish our enemies within the confines of the rule of law.”
So, while Thomas, Alito, and Gorsuch do not currently have a majority on the Supreme Court to roll back First Amendment freedoms, momentum is very much on their side, at least within elite GOP circles. Republicans ranging from Trump to the legislatures of many red states and the organization most responsible for Trump’s judges have all turned away from the Holmesian vision of the First Amendment and toward one where the government plays a much larger role in deciding who is allowed to speak and what media outlets must publish.
As the Netchoice cases show, that might even include using the power of government to order media outlets to publish content that aligns with the government’s political opinions.
All of this analysis comes with caveats, of course. If Trump wins, he may not get to replace any members of the Supreme Court or he may only get to replace some of his allies who dissented in Netchoice — though he is all but certain to replace hundreds of lower court judges if elected president. In the American system, where justices serve until they retire or die, no one can be sure how much power each president will have to reshape the Constitution.
Still, a vote for Trump is a vote to roll the dice on a drastically different vision of free speech in the United States — one that bears far more resemblance to the not-so-distant past than it does to anything most modern-day Americans have experienced.
