Trump Administration is Testing the Limits of the First Amendment...

Hate Speech, Fighting Words, True Threats & Comedians - Where Do Those Limits Lie?

Testing the Limits of the First Amendment

The First Amendment’s protection of free speech does have limits - but not as US Attorney General Pam Bondi would have us believe. Hate speech and demeaning words are protected under the First Amendment, just as flag burning is protected as expressive ‘speech’ - whether we like it or not.

When Does the First Amendment Give Way to Unacceptable, Unprotected Speech?

When it:

• “incites the listener(s) to imminent lawless action.” Such “unprotected speech” includes:

• threats, defamation, obscenity, child pornography, and fighting words;

• true threats, defamation, obscenity, and child pornography.

What Constitutes “Fighting Words?”

Words that are meant to incite violence, will likely not be unprotected as free speech under the First Amendment. To understand this, some history is in order.

Back in 1942, for the first time, the U.S. Supreme Court defined “fighting words” in the case of Chaplinsky v New Hampshire as words that:

“by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

Since Chaplinsky, the U.S. Supreme Court has issued a number of opinions to further clarify what speech or actions constitute fighting words.

Seven years later in 1949, the Supreme Court narrowed the scope of what constitutes fighting words in the case of Terminiello v. Chicago. The Court found that words which produce a clear and present danger are unprotected (and are considering fighting words), but words which invite dispute and even cause unrest are protected (are not considered fighting words).

Fighting Words That Present a Clear & Present Danger

In Feiner v. People of State of New York (1951), the Supreme Court held that akin to the fighting words doctrine, an incitement of a riot which creates a clear and present danger is not protected by the First Amendment.

In Texas v. Johnson (1989), the Supreme Court redefined the scope of the fighting words doctrine to mean words that are "a direct personal insult or an invitation to exchange fisticuffs."

This latter case is notable, as the Court held that the burning of a United States flag, which was considered symbolic speech, did not constitute fighting words - and is protected as speech - despite what the current president would have everyone believe.

In R.A.V. v. City of St. Paul (1992), the Supreme Court found that the "First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed."

This means that even if the words are considered to be “fighting words,” - as uttered by many American comedians and peaceful protestors, the First Amendment will still protects their speech. Accordingly, the government has no right to restrict speech based upon a viewpoint. Restricting this kind of speech is called viewpoint discrimination - and is unconstitutional. You can take that one to the bank Pam Bondi!

Putting This All Together

Remember, whoever stokes those to engage in ‘imminent lawless action,’ whether in words or deeds - is not protected under the First Amendment.

What we all must understand despite this administration’s contortions of the law and illegal remonstrations: the First Amendment provides all those within the US borders the right to air their grievances, and free speech is ‘still’ the law of the land - despite AG Pam Bondi’s pronouncements. But when speech turns into lawless action - violence or imminent threats of violence - those who do so must be held accountable and cannot hide behind the First Amendment.

For Those Wondering, What is a True Threat?

In American law, a true threat occurs when there is a serious expression of intent to commit an act of unlawful violence against a particular individual or group. Kirk’s assassination checked that box, as he had numerous warnings that he was a potential target. But it appears he ignored those warnings at his own peril.

It is important to note, condescending and hateful rhetoric are protected as expressive speech under the First Amendment; however true threats, are NOT protected by the First Amendment and can be punished by the government.

Determining if a statement is a ‘true threat’ requires a careful, case-by-case analysis of all the surrounding circumstances.

Were There ‘True Threats’ That Would Put a Reasonable Listener on Alert?

For speech to be classified as a true threat, the speaker must have some subjective understanding of its threatening nature. The U.S. Supreme Court clarified this standard in the 2023 case Counterman v. Colorado, establishing that, at a minimum, the speaker must have acted with recklessness.

A speaker will be viewed as reckless when they consciously disregard a substantial risk that their communication will be viewed as threatening violence. Previously, some courts only considered how a "reasonable person" would interpret the threat, but this recent US Supreme Court decision (the “Counterman decision), requires proof of the speaker's state of mind.

Based upon the Counterman, the question elicited is: How do we peer into the state of mind of the speaker??? It would seem, after the speaker(s) are identified, or have acted - then a warrant to seize all his devices and social media accounts could be had - but by then, it may be too late…Or if the “speaker” had violent social media posts, that could be a preemptive warning to the listener as well as law enforcement that some type of inquiry is in order.

To Recap:

Key Characteristics to Determine if ‘Speech is Protected Under the First Amendment:

The speaker's mental state, helps to distinguish whether a statement is a true threat or not, this includes:

• Context: Courts consider the context of the statement and how a reasonable listener would interpret it. For example, in Watts v. United States (1969), the Supreme Court ruled that an anti-war protester's statement about President Lyndon B. Johnson was "political hyperbole," not a true threat, because many in the crowd laughed at the comment.

• Intent to intimidate: Threats that are intended to intimidate a person or group are a form of true threat. In Virginia v. Black (2003), the Supreme Court held that a state could ban cross burning carried out with the intent to intimidate.

• Unlawful violence: A true threat communicates an intent to commit an act of illegal violence. The specific nature of the threat is a key factor in assessing its seriousness.

  Most importantly, a true threat lies in the communication and the fear it instills in the listener - the “offense” is completed, even by those without intent to carry out an act of violence.

• No intent to carry out: The speaker does not need to actually intend to carry out the act of violence for the statement to be considered a true threat. The offense lies in the communication itself and the fear it instills.

Who is Doing the Speaking Matters…

Of course much of all this depends on who is speaking and the type of words being spoken. Most peaceful protestors engage in protected speech, but there are those who willfully cross the line. The same is true of our elected leaders, some straddle that line and need to be reigned-in - where civility and threats of violence no longer reside.

As with Kirk, his words were biting and demonizing, and in many circles seen as a call to arms or fighting words - but even harmful words are protected - as long as they don’t inspire the listener to engage in imminent lawless action. So whether we liked him or not, he had a right to say what he thought - just as we all do. Just as long as none of us incite others to act in a violent or lawless way.

As Americans, our priority must remain the same - keeping the First Amendment lines of speech sacrosanct - where they are. Doing otherwise, such as taking comedians off the air when they say something someone doesn’t like, would be antithetical to the democratic process, the Constitution, longstanding legal precedent. Such would contravene the rights of the people and weaken a functioning democracy. We can’t let that happen. Stand up, share your thoughts - use your First Amendment voice to be heard.

Copyright 2025, Mary Kay Elloian, MBA, JD, Esq. - The Legal Edition® - Legal, Business & Policy News - TheLegalEdition.com - All Rights Reserved.

To learn more: Subscribe on Substack, YouTube, Instagram & Bluesky!

…