Over the years, this column has visited and revisited the freedom of expression, one of our most vital and cherished rights as Americans. That freedom has been under threat all too often in our history, and it is under threat today.

Free expression takes many forms. The First Amendment protects freedom of worship, speech, the press, peaceable assembly and petitioning the government for a redress of grievances. However, those five freedoms need to be defined and constantly reinterpreted, usually by the Supreme Court. Our nation’s founders could have had no conception of television or the internet. In colonial days, ideas were spread by the spoken word or in the form of pamphlets and newspapers. But regardless of the medium, the fundamental principles remain the same.

The right to express ourselves is absolutely necessary for our democracy to function. That’s the utilitarian argument. But Georgetown law professor Jonathan Turley goes beyond that to argue that it is also a necessary part of our basic humanity. To suppress speech, to punish speech, or to compel speech, is to deny not only our constitutional rights but also our basic humanity. Our legal rights are a reflection of our human rights.

From the beginning, it has been the U.S. Supreme Court that has drawn the line between protected and unprotected forms of expression. Over the past century, the court has moved the line quite often and has had to deal with unanticipated issues due to technology or unique circumstances. During the first world war, several cases involving sedition or treason made their way to the court, and the majority came down pretty hard on the socialists who were doing such things as encouraging resistance to the draft or encouraging workers involved in war production to go on strike in protest.

Those cases were examples of a doctrine that many of us can recall — the “clear and present danger” test. Looking back, those judgements are now considered by some to have been overly restrictive in terms of the circumstances, in part because the socialists were unsuccessful in their efforts. But the analogy used at the time, “yelling fire falsely in a crowded theater,” still has validity. We still cannot say with impunity things that incite people to riot or to engage in a panicked stampede based on a false warning like a fake bomb threat.

The 1964 decision of New York Times v. Sullivan was a favorite of writers, columnists, editors and publishers. A committee in support of the Rev. Martin Luther King. Jr. had placed an ad in the Times criticizing the actions of public officials in Montgomery, Alabama. Sullivan, a safety commissioner there, sued for libel. The Supreme Court ruled in favor of the newspaper and in so doing established a critically important right: to criticize the official conduct of public officials. That did not mean that we can knowingly make false statements about public officials, especially if there is evidence of either “malice” or “reckless disregard” for the truth.

This column believes that the precedent established in New York Times v. Sullivan is more important now than ever. As this column is being written, the president of the United States has begun to issue thinly veiled threats against media outlets. He has long complained about their “unfair” treatment of him and then casually mentioned that “maybe” they should lose their broadcast licenses. He previously filed a lawsuit against a pollster in Iowa as well as the newspaper that printed the results of her poll showing him behind Kamala Harris in that state. He has since 2015 pointed to members of the press at his rallies and described them as enemies of the people.

Just recently, the Pentagon issued new restrictions requiring news reporters to sign a lengthy pledge not to gather or disseminate information, classified or unclassified, that has not been approved for release under threat of losing their credentials. That rule amounts to what is called “prior restraint” and flies directly in the face of New York Times v. Sullivan. Heaven help us if public officials get to control what the press has to say. State-controlled media is the stuff of dictatorships. Can readers not see a deeply troubling pattern here?

It is a great, almost mind-numbing irony that Vice President JD Vance recently spent time in Europe lecturing on what he described as insufficient protections for freedom of expression. The irony is that he was correct. Free expression in many European countries and elsewhere around the world does not enjoy the same constitutional protections that it has usually had here. But then he came back home and apparently has no objection to the behavior of a president who is clearly creating a “chilling effect” on freedom of expression here at home in multiple dangerous examples of weaponizing the power of government to stifle dissent.

As this column has most recently suggested, “it’s time to take the blinders off.”

Joseph Filko has taught economics and American government and lives in Williamsburg. He can be reached at jfilko1944@gmail.com.

https://www.dailypress.com/2025/09/24/filko-is-freedom-of-expression-still-free/