What Speech Is Protected?

The topic of discussion for this Constitution Monday concerns the First Amendment’s guarantee of free speech. Recently, Jimmy Kimmel thought he was being funny by discussing how Melania Trump glowed like a soon-to-be widow. She confronted him and called for him to lose his job.

It was “reckless political speech,” according to Ben Shapiro in his article published at The Daily Signal. 

Americans love arguing about free speech. We invoke the First Amendment as a kind of political force field: You can say whatever you want, whenever you want, without consequence.

But the First Amendment only restricts government action. It does not guarantee you a career, a platform or immunity from backlash. The real question is not whether certain speech is legal but rather what kind of speech deserves social consequences – and what kind doesn’t.

And if we’re talking about reckless political speech, we should talk about Jimmy Kimmel. Years ago, he abandoned comedy in favor of applause lines, tearful monologues, and the occasional performance of empathy. He’s an unfunny late-night scold who treats half the country as a punchline.

As annoying as that is, being unfunny is not a crime. The bigger issue is when media figures cross the line from tastelessness into rhetoric that creates a permission structure for violence. To understand the difference, it helps to break political speech into three categories.

First: illegal speech.

Yes, illegal political speech exists in America. A classic example: “I want to kill the president.” That’s not merely commentary. It is an actionable, direct threat.

There is also incitement. Under the Supreme Court’s Brandenburg standard, speech qualifies as incitement only if it is intended to and likely to produce imminent lawless action.

“Someone should do something about the president” is protected, though irresponsible, speech. “Go kill the president” crosses into territory the law can punish. It’s speech but also an attempt to trigger violence.

Second: typical inflammatory rhetoric

American politics is filled with heated language. “Fight like hell.” “We’re going to war with the other party.” That sort of rhetoric can be ugly and excessive, but it is also normal.

We’ve seen how absurd it becomes when people try to treat that as literal incitement. After Gabby Giffords was short, some on the left blamed Sarah Palin because a campaign graphic had “targeted” certain districts.

That was ridiculous. Using combative imagery is not the same as directing violence.

Third: the permission structure for violence

A permission structure for violence is created when people repeatedly portray political opponents as monsters.

This is how you create the mental environment where unstable people conclude that violence is justified. If the president is a traitor, rapist, pedophile, and mastermind behind a corrupt system, then how else could he be stopped?

This kind of rhetoric leads directly to chaos.

It is also the kind of rhetoric Kimmel has trafficked in for years.

Recently, Kimmel tastelessly joked that Melania Trump had “the glow of an expectant widow.” It was disgusting, and she has every right to be furious. But it wasn’t a call to violence. It was a cheap, ugly joke suggesting she secretly wants her husband dead.

Kimmel later claimed he rejects violent rhetoric, then immediately pivoted to blaming Donald Trump for rhetoric that supposedly inspires violence. It was the standard modern play: Insult someone, then wrap yourself in moral superiority.

But when it comes to rhetoric that encourages violence, it isn’t the widow joke that should be the focus; it’s the conspiracism.

Kimmel has repeatedly called Trump a pedophile, suggested he is connected to Jeffrey Epstein and involved in a coverup, called him a rapist and accused him of protecting pedophiles, coming after voting rights, enriching billionaires while harming the poor, and manipulating the system to evade accountability.

That is not “normal political speech.” It is speech that turns a political opponent into a movie villain – a figure so corrupt and monstrous that extreme actions begin to feel righteous.

This kind of conspiratorial framing has a track record. It fuels ugly episodes of modern political violence: a steady stream of baseless accusations designed to convince audiences that the other side is not merely wrong but evil.

If someone eventually acts on that belief, we shouldn’t pretend it came out of nowhere.

So should Kimmel be fired?

Firing him for the Melania joke would be punishing the wrong offense. A tasteless, bad joke is not the central issue.

The central issue is rhetoric that treats political opponents as criminals without proof, assigns monstrous motives without evidence, and creates a cultural climate where violence feels justified.

If America wants to lower the temperature, scrutiny should be directed at conspiratorial storytelling that teaches people to hate.

 

Why Does Marc Andreessen Support Donald Trump?

 According to Michael Barone, Marc Andreessen – the person who invested the first web browser for the internet – switched from supporting Democrats to supporting Donald Trump in the 2024 presidential election. Andreessen explained his view in an interview with The Free Press co-founder Bari Weiss. 

“My concern is that the censorship and political control of AI is a thousand times more dangerous than censorship and political control of social media – maybe a million times more dangerous,” Andreessen, a prime innovator of artificial intelligence, told Weiss.

“The thing with AI is, I think AI is going to be the control layer for everything in the future – how the health care system works, how the education system works, how the government works,” he said. “So that if AI is woke, biased, censored, politically controlled, you are in a hyper-Orwellian, China-style, social credit system nightmare.”

Like fellow tech titan Elon Musk, Andreessen has come to see the Democrats as “the ones who are trying to silence free speech.” …

Andreessen is concerned less about transitory partisan finagling and more about possibly permanent suppressions of truth. The claim that “the COVID lab leak hypothesis was ‘misinformation’ and broadly censored on social media” is one such example, he says.

I have written often about the lab leak hypothesis and how denigration of it was concocted by former National Institute of Allergy and Infectious Diseases Director Anthony Fauci and former National Institutes of Health Director Francis Collins.

Starting February 2020, Fauci and Collins conspired to get colleagues who considered the lab leak likely to write a paper disparaging that theory and endorsing the idea that the virus came from a live animal market.

No evidence of such transmission has been found, and presumably, Fauci and Collins’ control over millions of dollars in research funding helped persuade the authors to change their minds. After publication, Fauci airily referred the article to the press as if he had nothing to do with it.

Establishment press outfits were happy to play along, characterizing the lab leak theory as “already debunked” (The Washington Post) or a “fringe theory” (The New York Times). The latter outlet’s lead COVID-19 reporter offhandedly referred to its “racist roots.”

Facebook and pre-Musk Twitter, now X, followed the cues and suppressed the lab leak theory even as they suppressed criticism of masking protocols and school closures.

By March 2023, the Energy Department joined the FBI in concluding that the virus likely resulted from a lab leak in China. They were bolstered by multiple articles by former Times science writer Nicholas Wade, and by Matt Ridley and Alina Chan’s book “Viral.”

Finally, this month, a detailed report by the House Oversight Committee not only endorses the lab leak theory as the most likely explanation of the virus but also, as Ridley wrote in The Telegraph, “lays out in gobsmacking detail just how much senior officials allegedly have schemed to prevent information emerging.”

What they were covering up, it becomes plain now, is that Fauci was commissioning China’s Wuhan laboratory to conduct gain-of-function research, making the virus more contagious to humans, presumably to develop means of defense.

The report explains in painstaking detail how Fauci, in testimony before Sen. Rand Paul, R-Ky., used a misleading definition when he vehemently denied authorizing gain-of-function research.

One can argue the attempted coverup by Fauci and others ultimately failed….

However, one must also add that the scientists who led the coverup retained the capacity to shape pandemic policy, pressing successfully for measures that proved to be harmful or unnecessary, such as school closures, masking for children, and vaccine requirements for those with natural immunity from previous infection.

Another thing one must add: The press and social media billionaires who went along with the scientists’ speech suppression acted on the assumption that they were frustrating the intentions of Trump and his supporters, whom they continued – and continue – to regard as something like Hitler and Nazis.

Any evidence in favor of things the Trump side was for, the media outlets felt an obligation to suppress….

The Barone article shows that Andreessen is interested in protecting free speech. Americans should support all people who are willing to work to protect free speech in our nation.

What Is the Connection Between Trump, Democracy, and Free Speech?

The topic of discussion for this Constitution Monday concerns democracy and free speech. Billionaire entrepreneur Elon Musk recently purchased Twitter, and he has been causing leftists heartburn since the purchase. He decided to ask Twitter users if former President Donald Trump should be allowed by on Twitter.

Musk sent a simple tweet with a poll: “Reinstate former President Trump.” Two hours after the poll was published, it received more than 3 million votes. The final numbers were 15,085,458 votes with 51.8% of voters voting yes and 48.2% of voters voting no. At the time that The Blaze published their article, the percentages were 57% to reinstate Trump, while 43% did not want him to be reinstated. Musk used the voice of the people to reinstate Trump’s right to free speech.

Twitter suspended Trump’s account on January 6, 2021, during the riot at the U.S. Capitol because he was somehow responsible for the riot. He was later suspended permanently from its platform, and other social media platforms suspended him.

Trump joined Truth Social and other social media platforms, and he indicated that he is not interested in returning to Twitter. Now that he has been reinstated, he may change his mind, but democracy and free speech won.

Do Conservative Americans Have Free Speech?

            The topic of discussion for the Constitution Monday concerns the type of government in the United States of America. The Declaration of Independence was signed near the beginning of an eight-year war to win independence from Great Britain. The U.S. Constitution begins “We The People” and created a government described by President Abraham Lincoln as being a government “of the people, by the people, and for the people.” For more than 235 years, Americans have enjoyed greater liberties and freedoms than people in any other nation in the world. However, things have been changing.

            The changes began under the administration of President Barack Obama, but they were set back by the administration of President Donald Trump. Then Joe Biden was elected as POTUS, and the changes picked up speed again. According to Deroy Murdock, Biden acts like Erich Honecker, and the U.S. government looks more like the government of East Germany as time passes. 

Much like East Germany’s final dictator, Biden brooks no dissent. He vilifies over 74 million Americans who voted for Trump as “ultra-MAGA Republicans,” “extremists,” and “semi-fascists.” 

Even worse, Comrade Joe Honecker has unleashed the FBI—America’s Stasi, or secret police—to terrorize dissenters. 

 • The unprecedented raid on Trump’s Mar-a-Lago estate in Florida, in a dispute over classified or (per Trump) declassified documents, should have been settled in court, at worst, not at gunpoint. These “classified” materials included Trump’s privileged legal documents, tax papers, medical records, passports, other nongermane materials, as well as former first lady Melania Trump’s garments and even items in teenage son Barron’s bedroom. 

• The FBI has seized the cell phones of at least nine Trump allies including former Justice Department official Jeffrey Clark; House Freedom Caucus Chairman Scott Perry, R-Pa.; Nevada GOP Chairman Michael McDonald; campaign strategist Mike Roman; election security expert Douglas Frank; and My Pillow founder Mike Lindell. 

•The Honecker-Harris regime’s radical War on Attorney-Client Privilege has capsized that ancient legal norm. The FBI has invaded the offices of, and snatched phones from Trump’s legal advisers. These include John Eastman, Boris Epshteyn, Rudolph W. Giuliani, and Victoria Toensing. 

•These Americans were among the 35 to 40 Trump supporters who have endured FBI raids, federal subpoenas, or both. My Fox News colleague Tucker Carlson quoted relevant subpoenas. They’re probing Americans who made “Any claim that the Vice President and/or the President of the Senate had the authority to reject or choose not to count presidential electors.” 

            Murdock reminded his readers that there is nothing illegal about claiming that there was election fraud. Democrats in Congress raised loud doubts about the fairness of the 1968, 2000, 2004, and 2016 elections. At those times, Democrats claimed that “certain states’ electoral votes should be replaced with others.” However, Democrats are using this denial of the results of an election to beat back America First supporters. They are also the basis for unconstitutional acts by the FBI and Department of Justice.

Right or wrong, under the U.S. Constitution and the Electoral Count Act of 1887, Democrats had every right to inquire whether Richard Nixon, George W. Bush, and Trump won the White House, fair and square. Democrats were in the clear even when they outlandishly claimed that Trump stole Alabama and Wyoming, despite winning 62% and 68% of the vote in those states. 

Republicans, in and out of Congress, also had and have every legal right to object to the 2020 election for all the reasons and in all the ways that Democrats did in previous years.  

When Democrats claim that Republicans cheated, they win applause for their political courage. 

When Republicans claim that Democrats cheated, they get stopped by the FBI, confronted in public, deprived of their cellphones, subjected house raids, arrested in front of their families and friends, and tossed in jail. 

            Such speech is supposed to be free for both Democrats and Republicans because it is protected by the First Amendment. However, only Democrats have the right to free speech because Republicans are raided by the FBI. America is not East Germany, and such tactics should not be taking place in the United States.

Are You Willing to Fight for Free Speech and Religious Beliefs?

             The topic of discussion for this Constitution Monday concerns violations of religious beliefs and the right to free speech. Colorado makes a practice of trying to force people to use their talents to supply services for same-sex weddings. A few years ago, a cake maker in Colorado had to go to the Supreme Court to get the state off his back. Now, another artist in Colorado is fighting against the same oppression.

            The Supreme Court has agreed to hear arguments in the case of Lorie Smith, a Colorado graphic designer. She claims that Colorado is forcing her to supply services for same-sex weddings. The arguments in her case will be heard next fall. 

Smith is being defended by Alliance Defending Freedom, a nonprofit legal organization that focuses on protecting religious freedom and free speech. The organization held a press conference on Wednesday outside the U.S. Capitol to highlight Smith’s lawsuit against the Colorado Civil Rights Commission. Smith spoke at the event and said, “All of us should be free to say what we believe, even if the government disagrees with those beliefs.”

Joining Smith at the press conference were several lawmakers, including Senators Ted Cruz (R-Tex.), James Lankford (R-Okla.), and Marsha Blackburn (R-Tenn.) as well as Representatives Doug Lamborn (R-Colo.), Debbie Lesko (R-Ariz.), and Vicky Hartzler (R-Mo.).

In addition, 18 senators and 38 House Republicans filed an amicus brief on June 2 in support of Smith. Cruz spoke at the press conference about the universal importance of Smith’s case at the Supreme Court because it would set an important precedent for free speech.

Colorado wants to compel the speech of Christian artists and business owners who decline to use their God-given talents to celebrate events that run contrary to what their faith teaches. Colorado law restricts the fundamental First Amendment rights of Lorie and other business owners like her. And it doesn’t just target Christians only.

Consider it this way: Should a Muslim artist be compelled by the government to draw the image of Muhammad? Should Jewish artists be forced to create art that they consider to be antisemitic? Should a Democrat political firm be forced to take on Republican clients?

            Kristen Waggoner, ADF general counsel, also spoke at the press conference. “Free speech is an inalienable human right, and it is the foundation for self-government. The government doesn’t grant us this right, but fortunately, our Constitution protects it and we are stewards of that freedom.”

Who Is Chike Uzuegbunam?

            My VIP for this week is Chike Uzuegbunam, a college student is fighting for Freedom of Speech on campus. According to Thomas Catenacci, the Supreme Court ruled 8-1 today that Georgia Gwinnett College’s speech code policy violated Uzuegbunam’s First Amendment right to freedom of speech and that the student could seek damages for the damages done by the policy. Justice Clarence Thomas wrote the majority opinion for the court with Chief Justice John Roberts the lone dissenting vote.

            The decision by the Supreme Court reversed a decision made by the Eleventh Circuit Court of Appeals. That decision said that Uzuegbunam did not have standing to sue the college even though the policy restricted his speech. 

“The Supreme Court has rightly affirmed that government officials should be held accountable for the injuries they cause,” Kristen Waggoner, general counsel for Alliance Defending Freedom, said in a statement Monday.

“When public officials violate constitutional rights, it causes serious harm to the victims.”

            The college told Uzuegbunam in 2016 that he could use one of two “speech zones” to share his Christian faith on campus. The “speech zones” comprise less than one percent of the entire campus. He complied with the rule and was speaking in a reserved zone. However, campus police threatened to discipline him if he did not stop speaking.

“School officials violated [Uzuegbunam’s] constitutional rights when they stopped him twice from speaking in an open area of campus,” Tyson Langhofer, the director of ADF’s Center for Academic Freedom, told The Daily Caller News Foundation in January.

“The only permit students need to speak on campus is the First Amendment.”

            Seven justices “across the ideological spectrum” agreed that Uzuegbunam’s rights were violated and that he can sue the school for nominal damages. The violation must have been obvious to have so many justices vote in unison. Chief Justice John Roberts dissented because he considered the case mute after the college changed its policy. However, changing the policy does nothing to bring justice for Uzuegebunam, and seven justices said that he deserved justice.

            This victory at the Supreme Court may be a wake-up call to other colleges and universities who seek to restrict the freedom of speech for their students on campus.

Is Speech Truly Free When It Is Censored?

             The topic of discussion for this Constitution Monday concerns the censoring taking place on platforms such as Twitter, Facebook, YouTube, Amazon, Apple, and Google. Conservative content is always the victim of the censor.

            The Trump Administration is currently contemplating some type of regulation for these platforms. The position taken by the administration is that the platforms will be regulated if they continue censoring. Even tweets from the President are being censored by so-called fact checks, and videos from Prager University and information from The Heritage Foundation are being blocked.

            Trump signed an executive order in April that eliminated some of the protections given to social media platforms under the Communications Decency Act. However, legislation would have more power over the platforms. There is a difference between the regulations on social media platforms than on broadcast media, and the former medium are not considered to be publishers and cannot be held liable for information on their platforms. Even though they face less accountability than broadcast media, social media platforms should not pick and choose content. If they want this ability, then they should be regulated by Congress.

            Mark Meadows, chief of staff for the President, explained: “We’re talking about freedom of the press, freedom of expression. And yet what we have are a number of companies that have decided on what should be communicated and what should not be communicated. And it is very troubling.” He continued, “We’ve seen video taken down. We’ve seen posts taken down. Ultimately, if you’re allowing the social media companies to be the determiner of free speech, you’re in a very dangerous place.” https://www.dailysignal.com/2020/08/09/white-house-weighs-bill-in-response-to-big-tech-on-free-speech/

            It is appropriate for owners, CEOs, and employees of such platforms to have political opinions and to express them. It is not appropriate for them to censor the speech of other Americans using those platforms.

Masterpiece Cakeshop Case

            The topic of discussion for this Constitution Monday concerns free speech, religious liberty, and same-sex marriage. All three of these topics are involved in one very important case. The Supreme Court heard oral arguments last week in the Jack Phillips case. The question to be answered is: Can Colorado force Phillips to go against his religious beliefs in order to create a custom cake for a same-sex couple?

            Phillips’ attorneys argue that he wants to use his creative talents to “speak messages that he agrees with, while still welcoming all customers into his store.” He should be free to do so because the rights of free speech and religious liberty are protected by the First Amendment to the U.S. Constitution. The opposing side basically argues that he does not have these rights when dealing with same-sex marriage.

            Emilie Kao posted an article at The Daily Signal that gives some highlights of Phillips’ argument. 

1. Mutual Tolerance Is Essential in a Free Society. … Justice Anthony M. Kennedy [said], “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs” [because they “compared Phillips to a racist and a Nazi]. …

Kennedy also pointed out there were other cake shops that would have accommodated Charlie Craig and David Mullins, the same-sex couple who requested a cake for their wedding.

In a similar line of questioning, Justice Samuel Alito pointed out that the state of Colorado had failed to demonstrate mutual tolerance when it only protected the freedom of cake artists who landed on one side of the gay marriage debate – namely, the state’s side. …

2. Compelled Speech for Everyone. … At one point, Justice Stephen Breyer followed up on a question from Justice Neil Gorsuch about whether a cake artist could be forced to create a cross-shaped cake for a religious group that shared the beliefs of the KKK. Cole [ACLU lawyer representing the couple] responded that if the cake artist did so for the Red Cross, then yes, the artist would have to do so for the religious group as well.

[Justice Samuel Alito asked a similar question.] In the exchange with Alito, the Colorado solicitor general said that cake artists could not discriminate on the basis of identity, but could discriminate on the basis of messages. Gorsuch later responded, saying that’s exactly what Phillips has argued.

3. Disagreement Does Not Equal Discrimination. … During the oral arguments, the court appeared to recognize what is patently obvious from the facts. Phillips welcomes all people into his store, encourages them to buy off-the-shelf items, and will make custom-designed cakes for them provided they don’t ask for items that violate his beliefs….

4. Orthodoxy Determined by the State. Finally, the oral arguments revealed the scope of how far the state of Colorado is willing to go to impose its views of marriage on citizens. In one line of questioning from Roberts, Colorado admitted that it would force Catholic Legal Services to provide a same-sex couple with legal services related to their wedding even if it violates Catholic teachings on marriage.

            Free speech and religious liberty are hanging on the Supreme Court’s decision on this case. The entire case seems to be built on a liberal agenda to further destroy religious freedom. There seems to be no thought about the loss of free speech because liberals only approve of free speech for their side.

            Phillips is a business man who seeks to earn his living by using his creative talents. He desires to do so “in a manner consistent with his deeply held religious beliefs.” In doing so, he has turned down other requests to create custom cakes expressing ideas that go against his conscience – such as “Halloween and divorce, anti-American themes, and even anti-gay messages.” He does not turn down the business because of the person, but always because of the message.

            This case is a big one that will have lasting effects on Americans and their freedoms. The Court’s decision in this case can either protect liberty and “foster more civil dialogue on marriage” or destroy freedoms and further divide Americans. Hopefully, the Justices will get this case right!