In the wake of Charlie Kirk’s assassination, the Trump administration is following a very specific, very old script. It argues that political speech causes political violence, and that this speech must therefore be punished.

It is imperative that all defenders of free speech — whether on the left, right or in the center — reject this narrative from the outset. For more than a century, the American understanding of free speech has been that political expression may only be punished when it incites imminent violence, for example, whipping up a crowd of angry people until they riot.

This principle of free speech, which traces back to Supreme Court Justice Oliver Wendell Holmes and the famous “clear and present danger” test, is designed to protect political beliefs, however wrong or dangerous they may be, by separating the expression of ideas from an individual’s choice to take unlawful action. It is the bedrock of the First Amendment as we know it. Breaking the distinction between protected political speech and illegal action is a frontal attack on the most basic freedom in our constitutional system.

The words “clear and present danger” are so familiar that it’s worth reminding ourselves of what Holmes’ famous ruling actually said — and of how the Supreme Court has updated the rule since 1919, when he introduced it in the case of Schenck v. United States. The case involved a leaflet, printed in the middle of World War I, urging resistance to the draft. The defendant had been criminally convicted in federal court of violating the Espionage Act by obstructing recruitment and enlistment, as well as causing and attempting to cause insubordination in the military.

Holmes explained the test as follows: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

In 1969, in the famous case of Brandenburg v. Ohio, the Supreme Court made the test even more protective of speech than Holmes had. It wrote that incitement to violence or other lawless action is constitutionally protected “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

This new test specified that two separate conditions must be satisfied before speech can be punished as incitement. First, the speech must be intended by the speaker to produce immediate illegal action. And second, the speech must be likely to cause that immediate action.

Brandenburg is still good law. It governs any attempt by the Trump administration to suppress free speech in the name of reducing political violence. Every judge in every court in the land knows the test, and I expect that they will follow it faithfully.

But the principle behind Brandenburg and its predecessor, the clear and present danger test, needs to be defended on its own terms lest our free-speech tradition fail when put to the test of real-world violence and an administration keen to exploit it to suppress expression.

Ideas are one thing. The choice to act illegally is another. Those who express ideas must not be held responsible for the separate actions of people who choose to break the law.

As Holmes noted, free speech is not absolute, and we have to draw the line somewhere. His famous example was that free speech “would not protect a man in falsely shouting fire in a theater and causing a panic.” But short of the intention to produce immediate violence, coupled with the reality that such violence will occur, our constitutional system has now been separating ideas from action for more than a century. We must not lose that tradition of freedom to a president who neither understands nor respects it.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”

https://www.dailypress.com/2025/09/24/column-blaming-violence-on-free-speech-is-a-very-old-trick/