On October 15th, White House Press Secretary Karoline Leavitt announced that US visas are a privilege revocable for foreign nationals expressing death wishes toward America, especially following the September 10th assassination of Charlie Kirk at Utah Valley University in Orem, Utah. The State Department has revoked visas for at least six individuals accused of celebrating Kirk’s death on social media, extending the policy to international students in pro-Hamas protests cited as national security threats. As you would expect, this move has drawn support from conservatives who see this as a defence of American values but, simultaneously, this has also drawn criticism from what are said to be civil liberties groups over free speech concerns. And so, in the status quo, we see an interesting intersection between national sovereignty and free speech – in what is a fairly simple contention to resolve.

THE STATE OF FREE SPEECH PROTECTIONS IN THE UNITED STATES

And now onto our main discussion, regarding “The Intersection of National Sovereignty and Free Speech”. I should state now that we are going to spend a fair amount of time on points of contextualisation, so that we are able to adequately adjudicate the related issues in the status quo. And to begin with, we ought to take stock of the jurisprudence and precedent surrounding the First Amendment in the US. Now, first and foremost, the First Amendment of the US Constitution protects the fundamental rights of persons to express themselves, to gather with other people, and to protest their government, among other rights. The text of the First Amendment itself is quite short but emphatic; it states that (quote): “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Now, since the First Amendment was ratified in 1791 as part of the Bill of Rights, this short paragraph has acted as the basis of the right to free speech in the US. People across the US have sacrificed, litigated, legislated, and organised to ensure that the rights conferred by this amendment are upheld. In light of this, here is what the overall jurisprudence and progressively litigated precedent concerning the First Amendment looks like today:

To begin with, the First Amendment prohibits government agencies from censoring, discriminating against, or applying rules inconsistently to private speech based on its viewpoint. This principle is called “viewpoint neutrality,” and it means that local and federal government agencies can NOT allow expression on a given subject from Viewpoint A – but not from Viewpoint B. For example, the government can NOT approve a permit for an pro-abortion rally, while blocking a permit for an anti-abortion rally. Not only this, but viewpoint neutrality is not even limited to political issues. For example, panhandling – or asking passersby for money in public places – is actually also constitutionally protected under viewpoint neutrality. And the idea is that governments cannot ban people from asking for money for themselves in public places, while at the same time allowing people to ask for money for something like the Girl Scouts or political campaigns.

Secondly, the First Amendment protects a person’s right to express him/herself and to testify before, petition, and protest the many branches and agencies of the local and federal government. If, for example, a person in the US wants to picket his/her local police station to protest an issue of misconduct, or wants to protest a law that council members passed, the First Amendment protects the right to do so. Furthermore, the First Amendment also prohibits all local government agencies, including public schools, from discriminating against speech based on its viewpoint. Which is why it was jarring that a Massachusetts middle school suspended a student for wearing a “There are only two genders” t-shirt – because this is protected expression.

And Liam Morrison actually asked a crucial question, and it is unfortunate the courts in the US might have missed it or deliberately ignored it, and this is the point on what is a protected class, and why are their feelings more important than his rights. Now, this question that he asks is incredibly important because it exposes the fact that in undermining first amendment protections, the federal government and activist judges and courts are arbitrarily creating a “protected class” of beings not based on objective necessity or a decent legal argument, but rather based on their feelings?! This is UNACCEPTABLE!

DISHONEST AND HATEFUL SPEECH ARE PROTECTED BY THE FIRST AMENDMENT

Then still taking stock of the jurisprudence and precedent surrounding the First Amendment in the US, here is where this amendment and the progressive precedent surrounding it got more deliberate in its protections of not just free speech, but ABSOLUTE free speech. Irrespective of whether speech is a lie, it ought not to be limited! Make no mistake: lies are a problem. In fact, one can persuasively argue that lies are one of the biggest problems in society, especially when looking at the deception that came during the COVID era, or the climate change hoax, or feminism and its insistence in vilifying men, and so many phenomena in society. I’d even go a step further to state that few behaviours are as corrosive to a nation’s social fabric or as foundational to societal divisions as lies. And this is primarily because lies severely hobble the ability to communicate effectively, the capacity to understand reality, and attempts at securing social and moral progress. HOWEVER, in recognising the gravity of the ramifications emanating from lies, a number of individuals, as a result, conclude that using government power to prohibit and eliminate lies is justified – you’d even recall the Welsh government’s 2024  decision to criminalise lies from parliament members.

However, using government power to prohibit and eliminate lies is a dangerous idea, and one that is contrary to First Amendment jurisprudence. More specifically, outside of a few narrow and formally recognised categories of unprotected speech, the First Amendment is neutral regarding the content of the speech it defends.

This principle was expressed beautifully by Justice Thurgood Marshall in the 1972 Supreme Court case of the Police Department of Chicago v Mosley, which questioned the constitutionality of a city ordinance banning non-union picketing outside of a school building. In the majority opinion, Justice Marshall wrote that (quote): “the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” So, in observing the precedent that came from this decision, this therefore tells us that the First Amendment almost universally prohibits content-based regulations of speech. In other words, because content-based regulations of speech target the substance of speech and are easily used to suppress disfavoured ideas, content-based laws or regulations are presumed unconstitutional, and the government must meet a very heavy burden to justify them.

Now, this heavy burden imposed on the government is understood as strict scrutiny — and is supposed to be the highest standard in First Amendment law, and it essentially requires the government to prove that the content-based regulation it wants to implement “furthers a compelling interest and is narrowly tailored to achieve that interest,” as outlined in the case of Reed v Town of Gilbert, Arizona, et al. The explanation of this burden is that: interests are “compelling,” when they are regarding “regulation vital to the protection of public health and safety, including the regulation of violent crime, the requirements of national security and military necessity, and respect for fundamental rights.” And the key here is that any regulations must not only advance a “compelling” interest, but must also not restrict people’s ability to speak freely (and dishonestly) beyond what is necessary to further that interest pursued by the government. BUT THEN, there was the case of United States v Robert J. Stevens, which offered an important challenge to this thinking.

Essentially, based on the issues that were just outlined in the excerpt we watched, in the case of the United States v Robert J. Stevens, the Court emphatically rejected as “startling and dangerous” the idea of a “free-floating test for First Amendment coverage” that requires speech to survive an ad hoc balancing of its costs and benefits by the government – because, as we stated, this was a burden on the government. As such, the development in the United States v Robert J. Stevens case is that: The “First Amendment itself reflects a judgement by the American people that the benefits of the restrictions imposed on the government through the first amendment outweigh the costs”. And so, from the precedent established in the United States v Robert J. Stevens case, it primarily means that American citizens were the ones who reserved judgement on the cost of restrictions to free speech, and not the government – which is a triumph and testament of the protectionist nature of the first amendment.

Then finally, on the jurisprudence and precedent surrounding the First Amendment in the US, it is worth noting that First Amendment protections also extend to speech that might be deemed as hateful. And, honestly, in a world where “hate speech” is either arbitrarily defined OR is a highly weaponised and politicised definition, I would argue that speech that is supposedly hateful is especially crucial to protect if any meaningful institutionalisation of free speech is to be claimed.

So, all that we’ve just discussed is the broad contextualisation of today’s discussion, and it will factor into how we adjudicate cases in the status quo that pertain to the intersection of national sovereignty and free speech. And to start us off, let’s address the Jimmy Kimmel free speech debate, because many are building on that occurrence to claim that the Trump administration is violating the first amendment, especially in light of the recent visa suspension announcement – and in addressing the cases in the status quo that pertain to the intersection of national sovereignty and free speech, we get to understand where the first amendment also ceases to protect speech.

ADDRESSING THE JIMMY KIMMEL FREE SPEECH DEBATE

So, regarding the Jimmy Kimmel case, what essentially transpired is that after the assasination of Charlie Kirk, late night host Jimmy Kimmel was suspended following the concerning remarks he made about the assassination, and claims about president Trump’s supporters trying to capitalise on the assasination for political gain. For the most part, this was an incredibly important and interesting niche in free speech discourse, and I think it had a profound impact in how Americans view comedians (who function as political commentators for the left). However, there does also appear to be a gap in an understanding of the responsibilities and powers of media broadcasters, in light of the protections of free speech. But, before we proceed, here is how Jimmy Kimmel (and frankly a lot of people on the left) viewed his remarks:

So, yes, in the aftermath of the suspension, Jimmy Kimmel painted his suspension as being based on the malicious mischaracterisation of his words; and even told his audience that he was “silenced” by Trump (because apparently Trump cannot take a joke) and even warned about comedians being censored – and yet he did say that Charlie Kirk’s assassin is a product of MAGA indoctrination, and that Trump supporters were trying to capitalise on the assassination for political gain – and so, that was just a weird attempt at averting direct accountability for the distasteful remarks he made, and somehow try to make Trump the focus of the discussion.

Nevertheless, as far as the First Amendment is concerned, Jimmy Kimmel is entitled to say what he wants, however horrendous and distasteful the remarks; and the Trump administration is also mandated by the First Amendment NOT to censor Jimmy Kimmel, even if his speech is deemed a lie or paints president Trump poorly.

WAS JIMMY KIMMEL CENSORED, & DOES THIS AMOUNT TO A VIOLATION OF THE FIRST AMENDMENT?

Therefore, we then have to ask ourselves this question: In being suspended following the remarks he made about the Charlie Kirk assassination, was Jimmy Kimmel censored and does this amount to a violation of the first amendment by the Trump administration?

The first response to this is that the suspension of Jimmy Kimmel was not based on efforts at demanding the censorship of videos that paint President Trump in a bad light – seeing that Trump himself makes jokes about Trump. BUT, even if it was about censoring videos that paint Trump in a bad light (which it was not), Jimmy Kimmel has the backing of US law to protect his free speech, meaning that he has every right and opportunity to hold Trump accountable if he thinks his speech was censored. For instance, in the case of West Virginia State Board of Education v. Barnette (1943), the Supreme Court explained that “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” In Ashcroft v. ACLU (2002), the Court declared that with few exceptions, “the First Amendment means [that] the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” And in the second case, which is the case of United States v Alvarez (in 2012), Justice Anthony Kennedy explained that even “false statements” may not be censored, writing that “some false statements are inevitable if there is to be an open and vigorous expression of views…”.

And so, free speech and the freedom to criticise policies or even portray the president in a less pleasing light are very well protected in the US constitution and free speech jurisprudence! Ergo, president Trump is not running some comedian censorship industrial complex, that is enabled by the absence of laws that protect free speech. In fact, Trump himself has proven to understand and respect the ambits of the first amendment, especially in light of what powers are available to him. For instance, you’d recall that in late 2024, president Trump sued CBS News for $10 billion for “deceptively doctoring” Kamala Harris’ 60-Minutes interview. And the harm that was argued by Trump was that CBS engaged in election interference to try to help Kamala Harris; to which Paramount (the parent company of CBS) agreed to pay $16 million to Trump’s future library or other cause. Crucial to note here is that Trump did not launch a welfare campaign to try to get CBS off air, or orchestrate the censorship of the CBS anchor who conducted the interview: he simply used the same first amendment law to hold the CBS accountable for abusing the press freedom they enjoy through the first amendment.

Then, still answering the question of whether Jimmy Kimmel was censored and whether his suspension amounted to a violation of the first amendment by the Trump administration, the second response here is that the left does not appear to have a strong grasp on the intersection between free speech and the private corporations.

So, for some additional context: the First Amendment, like the US Constitution generally, affords rights that people can use to challenge the government. Local and federal governments have many agencies, all of which must abide by the First Amendment. But free speech and association rights do not BLANKETLY apply to private organisations or people, even if those organisations or people receive funding from the government. These private organisations are thus entitled to formulate private organisational policies that people can choose to opt in or out of.

Now, what this means is that a private company can suspend or fire an employee for something they say, or a social media platform can remove a user’s post without violating the First Amendment because they are not the government.

HOWEVER, the exception is that if you can prove a private company is working with government actors to suppress speech, then the First Amendment will apply – which is what the Murthy v Missouri case is doing in light of how the Biden-Harris administrations coerced social media companies to censor speech on their platforms.

Now, the left in decrying censorship from Trump as being the reason that Jimmy Kimmel was suspended, is ignoring this aspect of the first amendment, which allows private corporations to decide if they want to air certain content. And yet, this exclusion of private corporations in the scope of the first amendment is why, while ABC is the media corporation that powers Jimmy Kimmel’s show, a number of ABC affiliates suspended his show, ad have now refused to air Jimmy Kimmel’s show altogether. It is NOT censorship by Trump, RATHER, it is the first amendment allowing private corporations to decide what they will or will NOT air.

WHITE HOUSE REVOKES VISAS FOR ANTI-AMERICAN SENTIMENTS AFTER CHARLIE KIRK ASSASSINATION

So, let’s bring in the factor of national sovereignty. As we alluded to earlier, on October 15th, White House Press Secretary Karoline Leavitt announced that US visas are a privilege revocable for foreign nationals expressing death wishes toward America, especially following the September 10th assassination of Charlie Kirk at Utah Valley University. The State Department has thus revoked visas for at least six individuals accused of celebrating Kirk’s death on social media, extending the policy to international students in pro-Hamas protests cited as national security threats. This move has drawn support from conservatives who see this as a defence of American values but, simultaneously, this has also drawn criticism from what are said to be civil liberties groups over free speech concerns. But before we proceed, here are the remarks from the Press Secretary.

Now, in addressing this development in the status quo, here we must ask: Is this policy by the Trump administration a weaponisation of national sovereignty against free speech?

Well, interestingly, this consideration is not at all new in US politics. In fact, in a case that considered whether lawfully present non-citizens in the United States have First Amendment rights, a federal district judge answered that question with a resounding “yes.” Judge William G Young, ruled that the Trump administration’s policy to detain and deport foreign scholars over their pro-Palestinian views violates the US constitution and was designed to “intentionally” chill free speech rights. Judge Young further stated that although no one’s freedom of speech is completely unlimited, the key is that whatever limits that exist “must be the same for both citizens and non-citizens alike.” He even added that the Trump administration claimed the authority to deport non-citizens who have committed no crimes but whose presence it deems to pose a threat to US foreign policy. And so, after a 2-week trial, Judge Young ruled that this authority was being used to target people based on their constitutionally protected speech.

HOWEVER, I’d like to offer a practical rebuttal to this position. With ALL the extensive protections that the First Amendment offers to speech, it also draws the line on speech that is both “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” – in other words, the First Amendment does not protect protesters who chant “death to America”, or make remarks about how they wish someone would kill Charlie Kirk. and all of this are things that have occurred in the US.

But, finally, for people concerned about censorship and even being offended, I’d also like to make the argument that free speech has a place in a functional society for 2 reasons. First, when people speak frankly about even hateful sentiments they hold, you have the privilege of an honest discussion, and an adequate measure of the moral inclinations of society. Furthermore, it is easier to challenge and debate (for instance) racist ideas with people who are openly racist than with people who form secret clubs and societies in which they share their racist inclinations among others who think the same. Therefore, there is less inspiration for change toward acceptable virtues, if those who do not yet possess them are not challenged to assess their thinking through open debate and free speech. In addition, when someone is frank with you about what they think, it is a manifestation of respect as opposed to that person telling you what they think you want to hear.

HOWEVER, also consider that in having the liberty to speak frankly, be prepared to be held accountable for what you say, where you abuse that speech- through litigation, and not laws that justify censorship.

Written by Lindokuhle Mabaso