A refresher

Chiles v. Salazar involved a Colorado state law banning sexual orientation change efforts (SOCE) for minors. SOCE refers to counseling practices that aim to change a person’s sexual orientation or gender identity.

Kaley Chiles, a licensed counselor, challenged the Colorado law, saying it violated her First Amendment right to free speech. Chiles argued that her therapy is conducted solely through speech with no medication or procedure involved.

The Colorado law prohibited licensed counselors from engaging in conversion therapy with minors that have the goal of changing the minor’s sexual orientation or gender identity. However, the law did allow therapists to provide acceptance, support, or understanding of identity exploration and development, as well as assist minors undergoing gender transition. Because of this exception to the law, not all conversations about sexual orientation or gender identity were banned — only conversations with a specific goal or viewpoint were.

What Supreme Court precedent says

In NIFLA v. Becerra, the Supreme Court held that professional speech is not a lesser category of speech. Speech does not lose its First Amendment protection simply because it happens in a professional setting.

A content-based regulation means the government must examine the content of a message you’re delivering in order to enforce a punishment. A viewpoint-based regulation goes even further, meaning the government is taking a position on a topic and allowing one viewpoint while prohibiting the other. Viewpoint discrimination is considered the most egregious form of content discrimination under the First Amendment. Both content-based and viewpoint-based regulations are held to strict scrutiny — the highest level of judicial review.

When applied to Chiles v. Salazar, the Colorado law allowed a minor to talk about being gay and wanting to be more comfortable with that identity, but it did not allow a minor to talk about being gay and wanting to change that. That means the government would have to examine the viewpoint of the conversation in order to determine whether it was legal or not.

Under strict scrutiny, the government must show that the law (1) advances a compelling governmental interest and (2) is narrowly tailored to achieve that interest. This is a very difficult standard for the government to meet.

The decision

On Tuesday, the Supreme Court ruled in an 8-1 decision that Colorado’s law was unconstitutional because it “regulates speech based on viewpoint, and the lower courts erred by failing to apply sufficiently rigorous First Amendment scrutiny.”

Justices Kagan and Sotomayor wrote a concurring opinion, noting that if the law had been written as a content-based regulation instead of a viewpoint-based regulation, the case may have been more difficult to decide.

Justice Jackson dissented, arguing that there is a difference between speech and conduct. She believes SOCE is a medical treatment that just happens to be delivered through speech, and the state has a right to regulate professional medical standards to protect public health.

However, the story does not end here. The Supreme Court did not fully resolve the case. Instead, it sent the case back down to the lower courts and instructed them to apply strict scrutiny.

This means the Colorado law technically still stands for now, but the lower courts must now determine whether the law can survive strict scrutiny — which is very unlikely.

In other words, the Supreme Court did not write the final chapter of this case, but it told the lower courts exactly how the Constitution must be applied when they do.

What this means

In a time where political division is extreme, this decision reinforces that the Constitution still functions as a framework and can withstand controversy. This is the rule of law playing out in real time. The system is working, even when the outcomes are controversial.

This case primarily expands protections for freedom of speech, but it may also have an impact on freedom of religion, especially in situations where speech and religious beliefs overlap.

The First Amendment often protects speech that people strongly disagree with, and cases like this test how far that protection goes.

The tension

This is where constitutional law can get complicated.

On one side, LGBTQ+ advocates argue that allowing minors to be subject to conversion therapy can cause real psychological harm, including increased depression and anxiety. Some argue that SOCE can make minors feel like they are not accepted for who they are and that change is being forced on them.

On the other side, if the Court were to allow the Colorado law, First Amendment protections would be at risk — particularly the danger of allowing the government to decide which viewpoints professionals are allowed to express.

As I’ve said many times before — once you crack the door to allow the government to decide what viewpoint of a conversation is and isn’t allowed, the door can easily be kicked down. That’s a power the Constitution was designed to prevent the government from having.

A ruling can safeguard one group’s rights while raising concerns for another.

But the beauty of constitutional law is you don’t have to like the potential implications of a decision in order to understand why the Court made it.

My take

My intention in designing this series is to provide a content-neutral platform to educate people on what the law is and how to apply it.

However, because I have been following this case since oral arguments in October — and because it was one of the first First Amendment cases I studied with real passion — I do want to offer a brief perspective.

For me, this is not a red versus blue ruling. It’s a people versus government ruling. And yesterday, the people won.

Although this decision may raise serious concerns, particularly for the LGBTQ+ community, it also demonstrates a principle that is often lost in today’s polarized climate: holding the government accountable to the Constitution.

When the Supreme Court holds the government accountable by refusing to allow it to impose restrictions on the people’s foundational freedoms, there is something in that to be celebrated.

This decision gave power back to the people (and parents in particular) to choose how they carry out their faith and what they do in their own private lives.

Therapy, by its nature, involves deeply personal conversations. We should never want the government to dictate what can and cannot be said in a private conversation. Expanding governmental authority into that space raises constitutional questions that would be a recipe for disaster.

Now imagine the state makes that conversation illegal.

That’s not a hypothetical. It’s the question sitting before the Supreme Court right now, and the answer could redefine the limits of the First Amendment for every licensed professional in America.

It’s just words

Sexual orientation change efforts — commonly called SOCE, or conversion therapy — refer to counseling practices that aim to change a person’s sexual orientation or gender identity. Major medical organizations have said it is ineffective and potentially harmful. Proponents argue that individuals have the right to pursue therapy aligned with their values and beliefs.

But this post isn’t about whether conversion therapy works, or whether it should. It’s about something much more narrow and fundamental to the constitution: when the government bans a type of conversation, does that violate the First Amendment?

States and municipalities across the country have passed laws prohibiting licensed therapists from practicing SOCE on minors. When those bans got challenged in court, the First Amendment became the battleground.

The Eleventh Circuit draws a line

In Otto v. City of Boca Raton (2020), the Eleventh Circuit faced that question head-on. Two Florida therapists argued that local ordinances banning SOCE for minors violated their First Amendment rights because their therapy consisted entirely of speech. The city called it a medical procedure. Judge Grant wasn’t convinced. In her opinion, she wrote “If SOCE is conduct, the same could be said of teaching or protesting — both are activities, after all. Debating? Also an activity. Book clubs? Same answer.”

Because the ordinances restricted speech based on its content — and favored one message over another — the court applied strict scrutiny. The government had to prove the law served a compelling interest and was narrowly tailored to achieve it. It couldn’t pass that test, and the bans were struck down.

A license isn’t a loophole

Boca Raton’s argument — that regulating licensed professionals is different from regulating speech — wasn’t new. The Supreme Court had already addressed it in NIFLA v. Becerra (2018).

California had passed a law requiring licensed pregnancy crisis centers to inform clients about state-funded reproductive services. The centers argued it violated their First Amendment rights by forcing them to deliver a government message. The Supreme Court agreed.

Justice Thomas, writing for the majority, rejected the idea that “professional speech” is a lesser category of First Amendment protection. The government can’t avoid strict scrutiny simply by targeting what a licensed professional says.

In other words, a therapist’s words don’t lose constitutional protection just because they happen in a clinical setting.

That principle is exactly what the Eleventh Circuit relied on in Otto, and exactly what the Supreme Court is now being asked to apply in Colorado.

The Supreme Court to weigh in

Which brings us to Chiles v. Salazar — and the Supreme Court.

Kaley Chiles is a licensed counselor in Colorado challenging the state’s ban on SOCE for minors. Her argument will feel familiar by now: her therapy is conducted entirely through speech, the ban targets her message specifically, and under NIFLA, it should trigger strict scrutiny. Colorado’s counter will also feel familiar: it’s a professional regulation protecting minors from harm, not a restriction on speech.

The Supreme Court heard oral arguments on October 7, 2025. And within the first hour, Justice Kagan cut to the heart of it.

She posed a hypothetical: what if a minor says “I’m gay and I want to be more comfortable with it” versus “I’m gay and I want to change it”? Under Colorado’s statute, one of those conversations is legal, but the other isn’t. To know which is which, she pointed out, you have to examine the content of what’s being said, and evaluate whether the message meets the state’s approval. That sounds a lot like viewpoint discrimination.

Colorado’s attorney pushed back, arguing the law regulates a harmful medical treatment, not a point of view.

The Court hasn’t decided yet. But whatever they hold will set the standard for every state with a SOCE ban on the books, and potentially far beyond.

Why it matters

At its core, this case asks how much power the government has to regulate speech simply by routing that regulation through a professional license. If the Court holds that states can ban certain conversations in a licensed setting, the door protecting professional speech won’t just be cracked open — it will be kicked down entirely.

The First Amendment has always been most valuable when it protects speech that somebody, somewhere finds harmful. That’s not a defense of conversion therapy. It’s a reminder that the legal principles the Court applies here will outlast this case by decades.

But here’s the first question worth asking: why is FIRE involved at all? Catholic is a private university. Private universities are not state actors, which means the First Amendment doesn’t apply to them. FIRE can’t threaten a lawsuit on constitutional grounds here.

So what’s the play?

FIRE’s mission isn’t always litigation. Sometimes it’s advocacy by publicly pressuring an institution into following its own stated commitments.

What the policies actually say

Catholic’s demonstrations policy states that the university “values and defends the right of free speech and the freedom of members of the University community to express themselves on University property” — with one significant qualifier: “provided that such expression does not violate the law or applicable University policies.” That last clause does a lot of heavy lifting.

What are those applicable policies? Catholic’s presentations policy states that “balanced programs explaining positions on both sides of a controversial societal, political, moral and/or ecclesiastical issues may be staged in the pursuit of a more complete educational experience and a greater understanding of the issues.” The operative word is may — not must or shall. The balancing requirement was never a firm rule. It’s discretionary.

The same policy also makes clear that Catholic, as a private institution, “is not required to provide a forum for advocates whose values are counter to those of the University or the Roman Catholic Church.”

So where does that leave FIRE?

Their strongest argument isn’t the compelled speech framing — it’s consistency. FIRE claims other student groups have hosted Democratic officials and pro-life activists without being required to include opposing speakers. If that’s accurate, Catholic isn’t applying a neutral policy. It’s making selective judgment calls. And while Catholic’s policies give it broad discretion, discretion applied unevenly is harder to defend — both legally and publicly.

Can Catholic do this? Legally, yes. Should they, given their own stated commitments? That’s a harder question. And it’s exactly the one FIRE is forcing them to answer out loud.

See FIRE’s full letter to The Catholic University of America:

Click here to see full letter

This all seems cut and dry. Until a court has to define it. And when courts try to define it, things get complicated fast.

That’s what happened in Bollea v. Gawker Media — better known as the Hulk Hogan sex tape case. It’s a story about fame, embarrassment, and money. What more could you want in a lawsuit?

But underneath all of that, it’s really a story about a deeper legal question many of us haven’t considered: when does publishing something true become illegal?

This is very different from false light or defamation law — it actually happened. It wasn’t AI. It wasn’t an actor. No one disputes that. So, when is the line crossed legally?

A persona, not a person

Terry Bollea was a professional wrestler who spent decades performing as Hulk Hogan. Hulk Hogan was a larger-than-life persona — a red and yellow, cartoonishly muscular, cultural icon. But, so he argued, Terry Bollea was a private citizen.

In 2012, Gawker published a clip from a secretly recorded sex tape featuring Bollea. He sued, claiming the publication of the recording was a violation of privacy torts, specifically public disclosure of private facts.

Gawker argued that Bollea is a public figure, and therefore had diminished privacy expectations. And they had a legitimate, worthwhile point. Hulk Hogan had talked openly about his sex life in interviews and on the radio. He made his personal life part of his public brand. How private could he really claim to be?

The answer, according to the jury: pretty private, actually. Because the person on that tape was not Hulk Hogan. It was Terry Bollea.

Terry Bollea never signed up to be famous.

The distinction between a character someone plays and the person underneath turned out to be the heart of the case.

So what exactly is “public disclosure of private facts”?

At its core, private facts work like this. For a publication to be unlawful under private facts, five elements generally have to be present.

1. Widespread publication. Not a rumor whispered between friends, but actual public dissemination.

2. Identification. The person claiming disclosure must be identifiable.

3. Private information. It wasn’t already known or voluntarily made public.

4. Highly offensive to a reasonable person. A reasonable person would actively seek to keep this information hidden from the public.

5. No legitimate public concern. There is no real newsworthy element that justifies the publication.

Gawker cleared the first four with ease. The tape was published on a major media website. Bollea was obviously identifiable. The recording was made without his knowledge. A reasonable person would find it highly offensive.

The fight was over element five: was this newsworthy?

Gawker argued that it was. Bollea was a celebrity who had publicly commodified his own sexuality. A celebrity’s sex life is often seen as newsworthy, regardless of whether it should or shouldn’t it be.

Bollea had a different take. In that moment, he was not acting as a public figure. He was acting as a private citizen. A private citizen’s sex life is no matter of public concern.

The jury agreed. There’s a difference between talking about your sex life on a radio show and having a private encounter secretly filmed and broadcast to the world.

In 2016, the jury awarded Bollea $140 million in damages. Gawker never recovered.

The man behind the curtain: Peter Thiel

There’s a part of the story that most people don’t know that makes the whole lawsuit considerably more unsettling.

Gawker didn’t just lose because of Hulk Hogan. They lost because someone with a very large checkbook decided they should.

Peter Thiel — tech billionaire, PayPal co-founder, and a name that would later appear in the Epstein files — had quietly been funding Bollea’s lawsuit. Years earlier, Gawker had outed Thiel as gay in a 2007 article. He never forgot it.

His strategy worked. Gawker filed for bankruptcy in 2016. Peter Thiel’s litigation funding is a window into how someone with enough money and grudge can engineer the death of a media company through the court systems.

Funding a lawsuit isn’t inherently wrong. But when the goal is destruction instead of justice, the legal system becomes an entirely different tool.

Here’s the thing nobody told me: that one little click was a legal contract. And buried inside that contract were some things that, looking back, are genuinely alarming.

So let’s talk about what Terms and Conditions actually are, what you’re really agreeing to, and — most importantly — what it means legally that most of us agreed to them as kids.

Okay, but what even are Terms and Conditions?

Terms and Conditions are a legal contract between you and a platform. When you click “I agree,” you’re entering into that contract, whether you read it or not.

Courts call these “clickwrap agreements,” and yes, they are generally enforceable. The legal standard is pretty simple: if you had the opportunity to read it and you clicked agree, you’re bound by it. Ignorance is not a defense. Neither is the fact that it was 47 pages long and written in legal jargon nobody actually speaks.

What you’re actually agreeing to

Here’s where it gets interesting. Most people assume T&C agreements are just boring legal formalities. They are not. A few things commonly buried in the fine print:

Arbitration clauses. Many agreements require you to settle disputes through private arbitration rather than a court.

The right to change terms at any time. Platforms can update their T&C whenever they want, usually with notice, and continued use is treated as acceptance.

They can collect and use your data. The scope of data collection most platforms authorize themselves to do in their T&C is extensive — location, behavior, device information, and more.

They own WHAT? The content problem

Here’s the one that really makes people pause. Many platforms include content licensing clauses in their T&C. In plain English: by posting content on their platform, you grant them a license to use it.

Every photo, video, and message. Content you created when you were 11, 12, 13 years old — shared with a corporation under a contract you couldn’t possibly have understood.

Now here’s the legal twist: sometimes, a platform won’t claim to own your content outright. Instead, they will claim a license — the right to use, display, and distribute it. But that’s still a significant right to hand over. And it raises a fascinating question we’ll get to in a moment.

But you were a kid. Does that change things?

This is where the intersection of contract and media law gets genuinely interesting. Under U.S. law, minors — anyone under 18 — generally cannot enter into binding contracts. And if they do, they have the right to disaffirm that contract, meaning it is voidable.

So technically, if you agreed to a platform’s T&C as a minor, you may have had the legal right to void that agreement. Which raises the uncomfortable question: if the contract is voidable, what about the content licensing clause inside it? Did they ever actually have the right to that content?

What about lying about your age? What if you said you were 18 when you were 13? Courts have gone different directions on this — some say the minor can still disaffirm, others say the misrepresentation complicates things. It’s genuinely unsettled law.

But what about when a parent clicked “agree” on your behalf? That’s a different situation — a parent can generally contract on a minor’s behalf, which would make the agreement binding. But most of us didn’t have our parents click anything. We did it ourselves, alone, at 11 p.m. in our bedrooms.

Here enters COPPA

Congress actually tried to address part of this. The Children’s Online Privacy Protection Act — COPPA — requires platforms to obtain verifiable parental consent before collecting personal data from children under 13.

The problem? It only covers kids under 13. And enforcement has been inconsistent. Most platforms’ solution to COPPA compliance is simply to say “you must be 13 or older to use this app” in their T&C — which, as we all know from personal experience, is a rule that approximately zero children followed.

So what do you actually do with this?

A few things worth knowing going forward:

You don’t have to read every T&C in full (honestly, nobody does) but it’s worth skimming the content ownership and data collection sections of any platform you’re posting original work to. The stakes are different when it’s your creative work versus your smoothie opinions.

If you’re a parent, know that COPPA gives you some rights around your child’s data — including the right to request deletion.

And if you’re thinking about that 5th grade version of yourself who clicked “I agree” without a second thought… yeah. The law is still catching up to the reality of how the internet actually works. You weren’t the problem. The system was.

The answer, it turns out, depends a lot on what you’re creating — and how the government treats you in the process.

Three rights, one collision

Three constitutional principles keep crashing into each other here. The Free Exercise Clause protects your right to hold religious beliefs and act on them. Free Speech protections extend beyond words to expressive conduct — if what you’re doing communicates a message, it can be protected as speech. And public accommodations and anti-discrimination laws require businesses open to the public to serve customers equally, regardless of characteristics like race, gender, or sexual orientation.

The collision happens when a business owner says: I can’t serve this customer because doing so would violate my religious beliefs — or force me to say something I don’t believe.

Wait — how is baking a cake “speech”?

You might be thinking: neither of these people are saying anything. They’re just making a product. Fair question.

The answer lies in expressive conduct, a protected form of speech under the First Amendment. The Court has long recognized that protected speech isn’t limited to words. For example, burning a flag or wearing a black armband to protest a war is considered speech. What makes something expressive conduct is that it communicates a message.

When a web designer creates a custom website, their name is on it. It reflects their creative choices. Some believe that forcing the creator to produce a product celebrating a marriage they don’t believe in is the government putting words (or artistic choices) in their mouth. Objectively, that would be compelled speech — something the Supreme Court has consistently held is unconstitutional.

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)

Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado, declined to create a custom wedding cake for a same-sex couple, citing his religious beliefs. Colorado’s Civil Rights Commission found he had violated the state’s anti-discrimination law. (CADA) (Masterpiece Cakeshop v. Colorado Civil Rights Commission)

SCOTUS ruled 7-2 in his favor — but the ruling was more narrow than most people realize. The Court didn’t decide whether refusing to bake the cake was constitutionally protected. Instead, it focused on the Commission’s conduct: commissioners had made dismissive, hostile remarks about Phillips’ religious beliefs during the proceedings. That religious hostility, the Court said, violated the Free Exercise Clause.

Masterpiece won on process. The bigger question — whether a baker has a constitutional right to refuse — was left open.

303 Creative LLC v. Elenis (2023)

Lorie Smith, a Colorado web designer, wanted to expand her business to custom wedding websites, but only for opposite-sex couples. She also cited her religious beliefs. She filed a pre-enforcement challenge before she was ever actually charged with anything. (303 Creative v. Elenis)

SCOTUS ruled 6-3 in her favor, and this time the ruling went to the merits. Because Smith’s websites are custom, original, expressive works that bear her name, Colorado cannot compel her to create content celebrating marriages she doesn’t believe in.

This was the ruling Masterpiece wasn’t. The Court held that the state cannot compel speech by forcing someone to create expressive content with which they disagree, even in the context of a public accommodations law.

Justice Sotomayor’s dissent said: “the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”

Sweet Cakes by Melissa — Why the fight isn’t over

If Masterpiece and 303 Creative are the cases that got resolved, Sweet Cakes by Melissa is the one that shows how hard it is to actually win — even when the law is moving in your favor.

In January 2013, Aaron and Melissa Klein, owners of a bakery in Gresham, Oregon, declined to make a wedding cake for a same-sex couple. Oregon’s Bureau of Labor and Industries charged them under state law and ultimately imposed a $135,000 fine. The Kleins were forced to close their bakery and eventually relocated to Montana.

That should have been the beginning of a straightforward legal fight. Instead, it became a decade-long loop.

SCOTUS intervened twice — but never on the merits. In 2019, the Court vacated and remanded in light of Masterpiece. Oregon’s courts came back, acknowledged that BOLI had indeed acted with religious hostility toward the Kleins — and still upheld the discrimination finding, sending the case back to BOLI to recalculate damages. The same agency found to have been biased then reduced the fine to $30,000.

In June 2023 — the same month as their ruling in 303 Creative — SCOTUS vacated and remanded Sweet Cakes again. The Oregon Court of Appeals heard oral argument again in January 2024. A decision is still pending.

Why no clean resolution? Because the Oregon courts keep doing just enough — adjusting the penalty, acknowledging the hostility — without ever conceding that the underlying law is unconstitutional as applied to the Kleins.

The intersection of the three cases

The unresolved legal question at the center of it all: is a custom cake considered expressive speech in the way a custom website is? 303 Creative answered that question for web designers. It has not answered it for bakers. Until it does, the Kleins keep fighting.

These three cases together tell a story about how the law moves — in increments, in narrow rulings, in remands rather than resolutions. Masterpiece said the government can’t be hostile. 303 Creative said the government can’t compel speech. Sweet Cakes is still asking: what happens when the government does both, keeps getting told to try again, and keeps finding a way to hold on?

That answer is still coming.

But one of the most serious First Amendment concerns isn’t punishment after speech.

It’s stopping speech before it happens.

That’s called prior restraint.

What Is Prior Restraint?

A prior restraint occurs when the government prohibits speech before it is expressed. Instead of penalizing someone after they speak, the government prevents them from speaking at all.

The Supreme Court has repeatedly held that prior restraints are presumptively unconstitutional. They are viewed as one of the most severe infringements on free expression because they silence speech before the public can even hear it.

The classic example is a court order preventing a newspaper from publishing a story. In Near v. Minnesota (1931), the Court made clear that prior restraints are almost always invalid. Forty years later, the Court reaffirmed that principle in New York Times Co. v. United States (1971) — the Pentagon Papers case — when the Nixon administration sought to block publication of classified Vietnam War documents. Even invoking national security, the government could not clear the heavy burden required to justify stopping the press. The Court ruled 6-3 in favor of publication.

The government carries a heavy burden to justify prior restraints. The Pentagon Papers case showed just how high that bar is.

Applying the Concept to Public Warnings

Now consider a more modern scenario.

Imagine federal law enforcement officers — such as agents from U.S. Immigration and Customs Enforcement — instructing members of the public that they are not allowed to blow whistles or otherwise warn others about their presence during enforcement operations.

The legal question would not be about immigration policy itself.

The legal question would be about speech.

If the government orders individuals not to engage in a form of expressive conduct — like blowing a whistle to communicate that officers are nearby — that raises a prior restraint concern.

Why? Because the speech is being stopped before it occurs.

The Constitutional Tension

Of course, the analysis does not end there.

The government may argue that restricting warnings is necessary to protect officer safety, prevent obstruction, or ensure effective law enforcement operations. Courts often balance the government’s interest in public safety and order against the individual’s right to free expression — and the First Amendment does not protect every action that interferes with law enforcement. If a warning crosses into obstruction of justice or materially interferes with official duties, different legal standards may apply.

But if the conduct is purely expressive — a nonviolent signal intended to communicate information — the prior restraint doctrine becomes relevant.

The key question becomes: is the government regulating conduct that directly obstructs enforcement, or is it suppressing speech because it makes enforcement more difficult?

Those are not the same thing.

Why Prior Restraint Is Treated Differently

Courts are especially skeptical of prior restraints because they invert the usual First Amendment structure.

Normally, speech happens first. The government reacts later if the speech violates a narrowly defined law.

With prior restraint, the government decides in advance what cannot be said. That shifts power in a significant way. It places the government in the position of gatekeeper over speech.

That is why the doctrine exists — and why it remains so powerful.

The Bigger Principle

Prior restraint cases often force courts to confront a difficult reality: the First Amendment protects speech even when that speech is inconvenient to the government.

At the same time, the Constitution does not require the government to tolerate genuine obstruction or threats to safety.

The line between those two categories is where constitutional litigation lives.

And that line is rarely simple.

Have a First Amendment or media law question or topic suggestion? Leave a comment — I may feature it in a future post!

Please note: This newsletter is for educational discussion only and does not constitute legal advice.

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This moment raised a bigger question: what does it actually mean for something to enter the public domain, how does it work, and why does it take so long?

What the public domain means legally

When a work is in the public domain, it is no longer protected by copyright law. Anyone can reproduce it, adapt it, remix it, or build entirely new works from it with no permission, no fees, and no lawsuit risk.

Public domain doesn’t mean a work has no value, it just means the law has decided that the public now has the right to use it.

This is why classic novels, films, and characters continue to show up in new adaptations decades, or even centuries, after they were first created. (Pride and Prejudice and Zombies, Persuasion - Netflix Series)

Why the works entering the public domain now are so old

One of the most surprising things about the public domain is how slowly it grows. Works entering the public domain today were created nearly a century ago, which says a lot about how long copyright lasts.

In 1998, Congress enacted the Bono Act. This extended the duration in which a creator holds the copyright for their work. For individuals, a copyright lasts the author’s lifetime plus 70 years. For corporations, the copyright lasts 120 years after creation or 95 years after publication, whichever is shorter.

That’s why works from the early 20th century are only now becoming free to use. Copyright lasts so long that what’s entering the public domain today often feels like ancient history, even though many of these works still shape modern culture.

Mickey Mouse as Steamboat Willie

The recent attention around Mickey Mouse is a perfect example of how this works. Early versions of Mickey (specifically the version seen in Steamboat Willie) are now in the public domain. But that doesn’t mean all versions of Mickey are suddenly free for anyone to use.

Copyright protects specific expressions, not general ideas. So while the 1928 version of Steamboat Willie is fair game, Disney’s modern Mickey (updated design, personality, storyline, etc.) remains fully protected. It’s a good reminder that copyright law is often much narrower than people assume.

What happens when creators die?

Another common misconception is that copyright disappears when a creator dies.

When a creator dies, their copyright transfers to their estate, which is usually family members or whoever the creator names in their will. Those rights can be enforced just like the creator would have enforced them during their lifetime.

This is why the children of Marvin Gaye were able to bring copyright infringement claims in cases involving songs like “Blurred Lines” and “Thinking Out Loud.” When Marvin Gaye died, his music still had decades of copyright protection left. That protection didn’t vanish — it passed to his heirs.

Copyright law is designed to allow families and estates to benefit from a creator’s work long after the creator is gone, until those rights eventually expire.

Why some works are everywhere

This long copyright timeline also explains why certain works are constantly adapted and reimagined. Jane Austen’s Pride and Prejudice is firmly in the public domain. Anyone can publish it, adapt it, modernize it, or reinterpret it without legal consequences.

That’s why we see endless versions of the same story across books, films, TV shows, and even social media. Once a work enters the public domain, it becomes a shared cultural resource.

Why copyright doesn’t last forever

At this point, it’s fair to ask: why shouldn’t copyright last forever?

Copyright is built on balance. Creators deserve rewards for their work, but not indefinitely. Exclusive rights incentivise people to write books, compose music, and make films. But eventually, those works need to return to the public so new creators can build on them.

If copyright never expired, creativity would stagnate. Every new story, song, or film would require permission from someone else — eventually someone far removed from the original creator. The Supreme Court acknowledged this tension in Eldred v. Ashcroft (2003) when it upheld Congress’s authority to extend copyright terms but recognized that a never-ending copyright would conflict with the Constitution’s goal of promoting progress.

Copyright is a bargain: creators get exclusive rights for decades, and then society gets access forever.

Around the same time the deal was announced, Disney sent a cease-and-desist letter to Google, accusing the company of using their copyrighted material to train its AI models. That contrast alone reveals how unsettled the law is in this space: licensing AI on one hand, while aggressively enforcing copyright on the other. (LinkedIn News Story)

This deal doesn’t just raise questions about technology, it exposes a deeper legal tension between copyright law and the First Amendment — a tension that artificial intelligence makes impossible to ignore.

Copyright constrains everyone, the First Amendment constrains the government

At first glance, it’s tempting to ask whether AI-generated content involving copyrighted characters is protected by the First Amendment. But that framing skips an essential step.

The First Amendment only restricts government action. Disney is not a state actor, and neither is OpenAI. When private companies decide what content to allow, license, or restrict, they are not violating the First Amendment in the constitutional sense.

Copyright, by contrast, applies to everyone. It governs what private individuals can copy, distribute, and transform. Most copyright disputes never become First Amendment cases at all.

But here’s where things get complicated: copyright law itself is created by the government. When Congress writes copyright rules, it is regulating speech, even if it does so indirectly. That means copyright law must be structured in a way that does not suppress lawful expression more than necessary.

That’s where the First Amendment enters the picture.

Where copyright borrows First Amendment values

Courts have long recognized that copyright and free speech exist in a careful balance. Copyright limits speech in the short term to encourage more speech in the long term. That balance only works if copyright law leaves room for commentary, criticism, and parody.

This is why doctrines like fair use exist. Fair use allows certain expressive uses of copyrighted works (even without permission) when those uses are transformative, meaning they add new meaning, message, or purpose.

In parody cases, courts have explicitly recognized that copying may be necessary to make a point. Sometimes, creators have to tolerate uses they dislike because expressive freedom matters more. (Campbell v. Acuff-Rose Music, Inc.)

Importantly, courts have handled this tension within copyright law itself, rather than treating it as a separate First Amendment battle. First Amendment values are filtered through fair use, not used to override copyright entirely.

Why AI breaks the framework

All of this doctrine assumes something critical: a human speaker.

Fair use analysis depends on questions like:

• Who is expressing something?

• What is their purpose?

• Are they commenting on the original work?

• Are they transforming it meaningfully?

AI complicates every one of those questions.

When a user prompts an AI system to generate content featuring a copyrighted character, who is the “speaker”? Is it the user? The AI company? The model trained on vast amounts of data? Who has the intent to parody? Who is responsible for the meaning of the output?

The existing framework was not built for machine-generated expression at a large scale. AI doesn’t just copy — it reproduces style, tone, and recognizable expression instantly and endlessly. That destabilizes the balance copyright law relies on.

Why the Disney/OpenAI deal makes sense

From Disney’s perspective, the deal is pragmatic. In the age of generative AI, people are already creating images, videos, and stories involving copyrighted characters, often without permission and without compensation to the rights holder. The question is no longer whether this content will exist, but under what conditions.

Licensing allows Disney to retain some control over how its characters are used, receive compensation for that use, and limit the most extreme or damaging forms of misuse. It’s a way to manage a reality that copyright law alone can no longer fully prevent.

For OpenAI, licensing reduces legal uncertainty. Copyright law was not designed with generative AI in mind, and courts are still grappling with whether training AI models on copyrighted material qualifies as fair use. (Thomson Reuters v. ROSS, Kadrey v. Meta) A licensing agreement offers a clearer legal foundation than relying entirely on unsettled doctrine.

In that sense, the deal reflects a lesser-of-two-evils approach: regulated access with compensation versus unregulated use through loopholes that offer creators no protection at all.

What this means for human creators

The more uncomfortable questions emerge when we consider what this means for people whose livelihoods depend on creative work.

If AI systems can generate content using licensed characters, voices, or styles, studios could theoretically reduce reliance on human actors, writers, and artists. Production costs could drop, timelines could shrink, and entire roles in the creative process could be replaced by synthesis.

Expression, parody, and association

AI-generated content involving copyrighted characters can still be considered a form of expression. Offensive or explicit expression does not lose its expressive character simply because it is uncomfortable.

But expression does not mean immunity. As mentioned earlier, for a use to qualify as parody, it must comment on or critique the original work. Many AI-generated uses do not do that. They rely on recognizable characters for attention, not commentary.

That distinction helps explain creators’ discomfort. When a recognizable character appears in obscene or profane content, it can feel like an unwanted association where the work is being used to speak values the creator never agreed to express.

With AI, control is eroding and intent is blurring, leaving enforcement harder to come by.

Why lawmakers are stuck

The moment the government steps in to regulate AI-generated content, the First Amendment becomes unavoidable.

If lawmakers prohibit broad categories of AI-generated expression, they risk suppressing lawful parody and commentary. If they grant copyright holders absolute control over all AI uses, they risk chilling expressive speech that copyright law has traditionally allowed.

Copyright assumes scarcity, but AI creates abundance. The law has to work to reconcile those realities.

The real question AI forces us to confront

At its core, this debate isn’t really about Disney or OpenAI, it’s about ownership in a world where creativity can be automated and reproduced endlessly.

Copyright law has always balanced private ownership and public expression. Artificial intelligence destabilizes that balance by removing the human author from the center of the analysis.

That’s why this issue feels so difficult. The law isn’t necessarily behind, but it is standing at a breaking point.

The answer depends on one key distinction: whether a school is public or private.

Public colleges and universities are considered state actors. Because they are government institutions, they are bound by the First Amendment. That means they generally cannot punish students for protected speech.

Private colleges, on the other hand, are not state actors, meaning they are not bound by the First Amendment and are legally permitted to regulate student speech under their own policies.

This often feels counterintuitive. After all, punishing controversial speech seems to undermine the mission of higher education. But legally speaking, private colleges are allowed to do so.

When evaluating whether your First Amendment rights have been violated, this is the first question to ask: Is the institution a government actor?

The First Amendment restricts government actors, not private institutions.

If private schools are not bound by the Constitution, how are they held to Title IX?

The answer lies in the difference between constitutional law and statutory law.

Title IX is not a constitutional rule. It’s a federal statute enacted by Congress. Congress has the power to attach conditions to federal funding, and Title IX is one of those conditions.

If an institution receives federal funding, they must comply with Title IX or risk losing funding.

Importantly, “federal funding” does not mean a single large check from the government. Federal student aid counts. Pell Grants and federal student loans qualify as federal funds because that money flows through the institution.

Even private universities are required to comply with Title IX if their students receive federal financial aid.

Why this isn’t a contradiction

The Constitution limits government power. Congress can still pass laws that apply to private institutions if those institutions choose to accept federal funds. Schools opt in to these obligations by taking the money.

This is why a private college may not be required to protect a student’s free speech, but is required to protect students from sex-based discrimination.

(What qualifies as “sex” under Title IX is currently the subject of ongoing legal debate and litigation. The U.S. Supreme Court recently heard oral arguments in West Virginia v. B.P.J., a case that could significantly shape how Title IX is interpreted in the context of athletics.)

What this means for students

• Students at public colleges generally have stronger free speech protections.

• Students at private colleges are primarily governed by student handbooks and codes of conduct.

• All students are protected by Title IX.

Knowing which rules apply to your school matters more than most students realize.

Defamation isn’t really a First Amendment issue — except that it involves speech.

Unlike most First Amendment questions, this isn’t government vs. the people. Defamation is a tort — people vs. people.

Anyone can be held accountable for defamation. This is where social media, journalism, influencers, politics, and cancel culture all collide.

Defamation law exists to balance two competing values: protecting reputation and protecting the First Amendment right to free speech.

Burden of Proof

In a defamation case, the plaintiff (the person claiming they were defamed) has to prove every single element of the claim.

The defendant only has to disprove one.

The burden of proof is always on the plaintiff.

The Elements of Defamation (in plain English)

To win a defamation case, the plaintiff must prove all of the following:

• Statement of fact

Opinions are not actionable.

• Publication

The statement must be communicated to a third party. One-on-one insults don’t count.

• Identification

The statement must be about the plaintiff or clearly imply them.

• Reputational harm

The statement must actually damage the plaintiff’s reputation.

• Falsity

The statement must be false. Substantial truth is enough, meaning minor inaccuracies do not amount to falsity.

• Fault

The defendant is responsible for making or publishing the statement.

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Public Figures vs. Private Figures

This is where defamation law takes a turn.

If you are a public figure, you must prove actual malice, meaning that the defendant acted with a reckless disregard for the truth. In more simple words — the defendant knew the statement was false or seriously doubted its truth but said or published it anyway.

This is a very high bar to achieve.

If you are a private figure, you only need to prove negligence, meaning the defendant had a duty of care, breached that duty of care, harm resulted, and the breach was the proximate cause of that harm.

Public figures trade privacy and reputational protection for influence. Private individuals don’t.

The Libel-Proof Plaintiff

In some rare cases, someone’s reputation is already so damaged that the law assumes it cannot be meaningfully damaged further. In this situation, they cannot succeed in a defamation lawsuit.

This is called a libel-proof plaintiff. It’s uncommon, but it does exist.

Real-World Case Study: Depp v. Heard

There is a common misconception about Johnny Depp v. Amber Heard.

This was not a domestic violence trial. It was a defamation case. The jury was not asked to decide whether abuse occurred in a criminal sense, but they did have to determine if abuse occurred in order to meet the legal standard for defamation.

Amber Heard wrote an op-ed (which was lawyer-approved) containing three key statements:

• “I spoke up against sexual violence — and faced our culture’s wrath. That has to change.”

• “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.”

• “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”

She never named Johnny Depp. She didn’t have to.

Depp’s legal team argued (and the jury agreed) that context clues allowed readers to identify him, satisfying the identification element.

Why the Case Turned on Falsity

By the time this case reached trial, most elements were not seriously in dispute. The real battle was falsity.

If Depp could prove that Heard’s claims were false, he could win the case.

His team pursued a deliberate strategy:

If they could convince the jury that Amber Heard was lying about one material fact, they could undermine her credibility entirely.

That’s where the Milani makeup palette came in.

Heard presented a correcting kit she claimed to have used to cover bruises during the time period she was with Depp.

Milani publicly stated that the product did not exist at the time she was claiming to have used it.

Legally, this mattered because if she was willing to misrepresent a fact that is verifiable, the jury could question her credibility on disputed facts.

It’s also important to note that juries are made up of humans. Credibility can be lost in seconds, and once trust is broken, it’s extremely difficult to rebuild.

Both sides relied heavily on expert testimony, including psychological evaluations, in an effort to undermine the other’s credibility.

The Court of Public Opinion

Long before the verdict, this case was tried on social media through TikToks, memes, commentary, and algorithms.

This case left the world with one major takeaway: Defamation law exists in a courtroom, but reputations live online.

When a case becomes a cultural event, it raises serious questions about whether a fair trial is even possible.

The Supreme Court has long recognized the danger of media-driven trials — a concern famously addressed in Sheppard v. Maxwell.

During the trial, social media was flooded with content supporting Depp, including the viral hashtag #JusticeForJohnny. A well-known actor had already built a public relationship with audiences, and many viewers were unwilling to accept the possibility that the allegations could potentially be accurate.

Social media platforms are privately owned companies that are not held to the First Amendment.

Simple enough … except it isn’t.

At Donald Trump’s second inauguration, four of the most powerful tech executives in the world sat just feet from the president. These are the people who control the platforms where political discourse now lives.

So are we really supposed to believe that government and social media exist in completely separate spheres?

The idea that these platforms operate in a vacuum that is untouched by political pressure, regulation, or influence is becoming harder to believe. Even if the First Amendment doesn’t legally apply to them, the relationship between government power and digital speech is anything but clean.

Public Forum and Blocking

So … Is social media considered a traditional public forum?

Technically: no.

Practically: it’s complicated.

Private citizens and private companies can block you without raising a First Amendment issue. That’s not censorship — it’s private moderation.

But when the government is the one doing the blocking, the analysis looks different.

A government-run Facebook page or official account can’t selectively silence criticism. When the state controls the space, constitutional limits re-enter the picture.

This is a line people often miss:

Being blocked online isn’t automatically a First Amendment violation unless the government is the one doing the blocking.

The Campaign Problem

While reading “The Short Life and Curious Death of Free Speech in America” by Ellis Cose, I kept circling one uncomfortable question:

Should candidates for public office be held to a higher standard when it comes to misinformation?

Misinformation is generally protected by the First Amendment (unless it crosses into defamation, fraud, or perjury). And that protection doesn’t disappear just because the speaker is running for president.

But …

When you’re campaigning for the most powerful office in the country — when millions of lives, democratic legitimacy, and public trust are on the line — should anything really be fair game?

I think that we can all agree that campaigns built on lies are unethical … but they are legal.

The First Amendment doesn’t promise truth — it promises that the government won’t decide what the truth is. And that’s where this becomes dangerous.

Political speech receives the highest level of First Amendment protection. That same protection, however, means political misinformation can be uniquely powerful. Elections don’t just choose winners, they shape public trust and democratic legitimacy in ways that last long after ballots are counted.

We’re living with the consequences of elections influenced by misinformation, especially in how deeply they’ve fractured trust in democratic institutions.

The Danger of Regulation

Here’s a question that is becoming increasingly more difficult to answer:

Can the government regulate harm without being an arbiter of the truth?

Who decides what counts as misinformation?

What happens when political power shifts hands?

What speech gets labeled “dangerous”?

Whose voices get silenced?

Once the door is cracked open for the government to punish “bad” political speech, it can be kicked wide open. Regulation meant to protect democracy can just as easily be used to suppress dissent.

History tells us this risk isn’t hypothetical.

Watchdogs & Accountability

If the government can’t be trusted to regulate political speech without overreach, accountability has to come from elsewhere. That responsibility falls to institutions outside state power.

We have to rely on journalists, independent media, fact-checking, and persistent questioning.

The First Amendment doesn’t guarantee truth, but it protects the conditions that allow truth to be challenged, tested, and exposed.

That tension isn’t a flaw in the Constitution. It’s the cost of freedom.

Although the First Amendment guarantees broad protection from government interference with speech, the Supreme Court has recognized limited exceptions to that protection. In other words, free speech isn’t absolute.

The First Amendment protects a lot of ugly speech, including the offensive, uncomfortable, and deeply unpopular. But not all speech is protected. There are rare circumstances where the government is allowed to step in and punish speech without violating the Constitution.

Those exceptions include incitement to violence, true threats, and fighting words.

The exceptions are very narrowly tailored, specific, and focused on immediate harm, not purely offense. When courts evaluate whether speech may be punished, they consider context, intent, and imminence.

Incitement to Violence

The Supreme Court didn’t always get incitement to violence right. Over time, it experimented with different legal tests, some of which were more restrictive of speech than others.

Initially, the Supreme Court applied the bad tendency test. Under this approach, speech could be punished if it had a tendency to lead to harm, even if no harm actually resulted. This standard is dangerously vague and functioned as a “what if” standard. It allowed the government to punish speech based on speculation rather than concrete facts. People could be punished for what someone feared their words might do, not what their words actually did. This approach risked chilling speech by discouraging people from speaking out at all.

The Court later established the clear and present danger test, which required a closer connection between the speech and potential harm. Under this standard, speech could be restricted if it posed a real and imminent threat that a serious substantive harm would result. In practice, the clear and present danger test still gave the government too much room to punish speech, which is why the Court eventually replaced it with a more protective standard.

Today, the governing standard is the Brandenburg test, established in Brandenburg v. Ohio. This test distinguishes between advocating for ideas and inciting immediate violence.

Both elements of the Brandenburg test must be met in order for the government to punish speech under incitement to violence:

1. The speech was directed toward inciting or producing imminent lawless action and is

2. Likely to produce such action.

Timing and likelihood are critical factors. Abstract statements, political rhetoric, or general calls for action are still protected unless the speech is intended to trigger immediate lawbreaking and has a real chance of doing so.

In short, the First Amendment protects the right to advocate, but not the right to incite.

True Threats

Another category of unprotected speech is true threats. True threats focus less on provoking others to commit an act of violence and more on causing fear of violence directed at a specific individual or group.

In Virginia v. Black, the Court made clear that true threats involve more than just offensive or symbolic expression. The key concern is intent to intimidate — speech meant to place someone in fear of bodily harm or death.

The question of intent expanded in Elonis v. United States. In this case, the Court rejected the argument that a speaker could be punished simply because their words caused fear. Instead, the government must prove that there was subjective intent, meaning the speaker had to intend the threatening nature of the speech, not simply say something that frightened another person.

Most recently, in Counterman v. Colorado, the Court expanded on this standard to include recklessness. In other words, a speaker must consciously disregard a substantial risk that their words would be perceived as threatening. Negligence isn’t enough.

Taken together, these cases show how narrowly true threats are defined. For speech to qualify as a true threat, courts use the following test:

1. The speaker directs the message to an individual or group,

2. Acts with intent or at least recklessness, and

3. Knows a reasonable recipient will perceive a threat

Being offended isn’t the same as being threatened. That distinction is the core of the Supreme Court’s true threats doctrine.

Fighting Words

The final speech exception is fighting words. Fighting words are defined as words that “by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” The use of this standard is fairly limited.

The fighting words doctrine comes from Chaplinsky v. New Hampshire, a Supreme Court case from 1942. Under Chaplinsky, fighting words are direct, face-to-face personal insults addressed to an individual and inherently likely to provoke immediate violence.

In theory, fighting words are not protected by the First Amendment. In practice, the courts almost never rely on this standard today.

That’s because the category is extremely narrow. General insults, offensive speech, and even highly inflammatory language typically do not qualify as fighting words. As a result, modern courts are hesitant to use the exception at all.

The Supreme Court’s skepticism toward fighting words is reflected in later cases like Terminiello v. Chicago. The Court held that speech could be restricted only in the event that it was “likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” In other words, the government cannot punish speech simply because it angers, offends, or upsets listeners. Writing for the Court, Justice Douglas wrote that “a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

The First Amendment does not exist to protect only polite or agreeable speech. It protects speech that provokes, challenges, and unsettles, as long as it does not cross the line into immediate violence.

Few concepts are more misunderstood in First Amendment law than “hate speech.” Many people assume that if speech is offensive, hateful, or morally repugnant, it must also be illegal. But the First Amendment doesn’t ask whether speech is good or bad — it asks whether the government has the power to punish it. In the United States, “hate speech” is not a legal category. It’s a moral and social one. That distinction matters, because our Constitution protects even the most unpopular expression. Not because it is admirable, but because allowing the government to decide which ideas are forbidden is far more dangerous.

RAV v. City of St. Paul: When the Government Picks Which Ideas Are Allowed

In RAV v. City of St. Paul, the Supreme Court reviewed a local ordinance that banned symbols like burning crosses or swastikas when they were used to express racist or hateful ideas. No one seriously disputed that the speech involved was offensive or rooted in racial hostility. The constitutional problem wasn’t the message — it was the government’s role in deciding which hateful ideas were punishable.

The ordinance singled out specific viewpoints for punishment while leaving other offensive or hostile speech untouched. That’s unconstitutional. Under the First Amendment, the government cannot act as an idea referee, deciding which beliefs are acceptable and which are forbidden. Once the government has the power to ban “bad” ideas, it also has the power to ban your ideas when political winds shift.

The Court’s decision did not endorse hate speech, but it did reject the idea that the government can pick and choose which viewpoints are allowed to exist in public discourse.

When Principles Are Put to the Test

RAV shows why the government cannot punish speech based on which ideas it finds offensive. But the hardest First Amendment cases don’t end there. What happens when the speech isn’t just offensive in theory — when it is directed at real people, in moments of real grief, and feels morally indefensible? That question reached the Supreme Court in Snyder v. Phelps.

Snyder v. Phelps: Speech the Constitution Protects — Even When It’s Repulsive

Snyder v. Phelps involved members of the Westboro Baptist Church picketing near the funeral of a U.S. Marine. They held signs reading things like “Thank God for Dead Soldiers” and “God Hates the USA.” The church believed that God punishes the United States for its tolerance of homosexuality. The speech was cruel, provocative, and deeply offensive — especially given the context of a military funeral.

But, once again, the Supreme Court’s task was not to judge the decency of the message. It was to decide whether the government had the power to punish it. The Court held that the speech was protected because it took place in a public forum and addressed matters of public concern. Constitutional analysis cannot hinge on emotional reaction alone.

But, when the Court protects this speech, it doesn’t mean they are condoning it. Snyder is a case about principles under pressure: if the First Amendment fails when speech is most repulsive, it fails altogether.

“I’m Offended” Is Not a Constitutional Standard

This is why “I’m offended” is not a constitutional standard. The First Amendment protects speech precisely because offense is subjective, emotional, and deeply dependent on personal experience. If constitutional protection rose and fell with outrage, free expression would disappear the moment it became uncomfortable.

The Problem With Defining “Hate Speech”

You might be questioning “What even is hate speech if there is no legal definition?” This is why it isn’t regulated — no one can agree on what it actually means. Different cultures, historical moments, and political movements define “hate” differently. Those definitions constantly shift over time. What is considered hateful in one era may be protected dissent in another.

If the government were allowed to regulate speech based on an ever-changing concept of “hate,” constitutional rights would rise and fall with public opinion and political power. The First Amendment exists to prevent that outcome by drawing a firm line: the government cannot punish speech simply because its message is offensive or unpopular.

Why Democracy Requires Open Disagreement

Protecting even the most hateful speech is essential to preserving a democratic society. Open discourse allows ideas to be challenged, exposed, and ultimately rejected. Democracy does not require agreement — it requires the ability to disagree openly without fear of government punishment. A system that collapses at the first sign of discomfort cannot survive in the long term.

Exposure, Not Censorship, Is How Bad Ideas Die

“Bad” ideas don’t disappear through censorship. They disappear through exposure. When ideas are pushed into the open, they can be scrutinized, criticized, and defeated on their merits.

I saw this play out in my own life. When I was a teenager, I was convinced I should be dating a boy my parents strongly disapproved of. The harder they tried to forbid it, the more certain I became that I was right. So I went behind their backs — only to quickly realize they had been right all along.

But that lesson didn’t come from being forbidden. It came from exposure. Once the idea was tested in the real world, it collapsed on its own.

What the First Amendment Protects — and What It Doesn’t

This is the logic behind the First Amendment. It protects hateful expression, not harmful actions. That’s why incitement to violence, true threats, and fighting words fall outside constitutional protection. The line is drawn not at offense, but at real, tangible harm.

👉 How courts decide if a speech restriction is allowed at all.

(Spoiler alert: it typically isn’t.)

First Amendment law starts with this foundational question:

| Is the government regulating what you’re saying, who is saying it, and how you’re saying it?

Those three questions determine the outcome of a First Amendment claim.

Let’s dive into it.

Content-Based Regulations

A law is considered “content-based” when the government must examine the actual message you’re delivering to enforce a punishment. If a regulation depends on what someone is expressing, it will be evaluated using strict scrutiny, the highest level of judicial review.

Here’s the strict scrutiny test that the courts use:

1. The regulation advance a compelling governmental interest and

2. be narrowly tailored.

This is why the Supreme Court strikes down laws prohibiting flag burning. (Texas v. Johnson) In this case, the government objected to the message of disrespect for the flag, not the actual conduct.

Viewpoint-Based Discrimination

Viewpoint-based discrimination is a form of content-based regulation, but worse. It’s the most unconstitutional form of regulation. This happens when the government takes a position on a topic.

For example: the government allowing pro-war signs in a protest but banning anti-war signs in a protest would be a form of viewpoint-based discrimination. They aren’t saying “you can’t protest the war here,” they’re saying “you can’t protest against the war here.”

Courts use the same standard of strict scrutiny when analyzing a viewpoint-based discrimination regulation.

Content-Neutral Regulations (Time/Place/Manner)

But not all regulations go after the content of your speech — some of them go after the logistics. This is also known as time/place/manner regulation.

Examples of content-neutral regulations are:

• Noise ordinances

• Rules preventing protesters from blocking hospital entrances

• Parade permits

When reviewing a content-neutral case, courts will use intermediate scrutiny, also known as the O’Brien Test. (United States v. O’Brien)

A content-neutral regulation is constitutional if it:

1. advances an important or substantial government interest

2. that is unrelated to suppression of speech and

3. is narrowly tailored to only incidentally restrict First Amendment freedoms

In other words, the government can regulate logistics, but not ideas.

Before we can understand the most controversial speech cases in America, we have to understand the question every court starts with: What kind of regulation is this?

Once you understand that, the First Amendment starts to make a lot more sense.

But here’s the reality:

The First Amendment protects you from the government, not from consequences, criticism, or private companies.

This is called the State Action Doctrine.

Now that we’ve identified who the First Amendment applies to, let’s discuss what the First Amendment actually protects.

It applies to the government, not everyone else

This is a commonly misunderstood fact in free speech conversation.

The First Amendment restricts:

• the government

• public officials

• public schools

• public universities

• law enforcement

It does not restrict:

• social media platforms

• private employers

• private universities

• malls and private venues

• someone blocking your comment on social media

These are private actors, and they can make their own rules.

The First Amendment is a shield against government power only.

Political speech: the most protected form of speech

The First Amendment’s favorite child is political speech, meaning anything related to government, public issues, or civic life.

Here’s what’s protected:

• criticizing elected officials

• supporting unpopular candidates

• marching in protests

• wearing political clothing

• advocating for controversial ideas

Why does political speech receive special treatment?
Because the government’s ability to punish dissent would defeat the entire purpose of a democracy.

This category gets the highest level of protection, and courts take it very seriously.

Symbolic speech: actions that communicate ideas

You don’t have to say a word for your speech to be protected.

I had a professor in college who taught this in an unforgettable way.

He stood at the front of the classroom, held up two middle fingers, and asked, “Am I saying anything?”

The class said no.

Then he followed up: “But am I saying something?”
We all laughed and said yes.

He nodded. “Exactly. That’s symbolic speech.”

The main takeaway was this: if an action communicates a message, it counts as “symbolic speech.”

Examples of symbolic speech are:

• burning a flag

• wearing a black armband

• kneeling during the national anthem

• expressive art

• and, fortunately, the middle finger

Symbolic speech is protected just like spoken words. And that protection doesn’t disappear just because the message is uncomfortable.

Offensive and unpopular speech is still protected

This is one of the most unique features of America’s free speech model.

The First Amendment protects:

• speech you find offensive

• speech you find hateful

• shocking or disturbing ideas

• criticism that hurts feelings

• viewpoints most people disagree with

Why?
Because letting the government decide which ideas are “too offensive” is far more dangerous than the ideas themselves.

The U.S. protects the content of speech, even when that speech is ugly.

*A note about the press

We’ll have a full separate post on press freedom, but for now:

The First Amendment protects the right to report, publish, investigate, criticize, and expose wrongdoing without government censorship.

The purpose of the media and journalism is to act as a watchdog on the government. This is to hold the government accountable and provide information to the public.

This protection is essential to a functioning democracy.

Yes, there are categories of unprotected speech

There are three key areas that the First Amendment does not protect:

• true threats

• incitement

• fighting words

But here’s the thing:
Each category is narrow and they all deserve their own deep dive, which will be the topic of future posts.

Think of today’s post as laying the foundation.
We’ll build the rest of the house throughout this series.

Want to make a difference? Start here!👇

Now that you know the basics, here’s how to put it into practice:

• support local journalism and transparency

• understand who and what the First Amendment protects (you’ve learned this today!)

• teach someone else what you’ve learned

But.

Courtrooms aren’t supposed to have fan bases, trials aren’t supposed to have highlight reels, and witnesses aren’t supposed to become memes. Yet here we are, in a world where a courtroom can feel more like a live-streamed event rather than a pursuit of truth.

And that raises a much bigger question: can a trial still be fair when millions are watching?

Sheppard v. Maxwell: The Original Warning Sign

In 1954, Dr. Samuel Sheppard’s wife, Marilyn, was murdered in their home. Almost immediately, newspapers and broadcasters began speculating that Sheppard was the killer. Coverage focused heavily on his alleged affairs and painted him as guilty long before the trial even began.

The courtroom itself was tiny (only 26 by 48 feet), yet 20 reporters were allowed inside. They filled the space, roamed freely, and sat close enough to overhear private conversations between Sheppard and his defense counsel. The judge imposed no safeguards, and as a result, 11 of the 12 jurors were exposed to prejudicial pretrial publicity. Sheppard was ultimately convicted of second-degree murder.

He spent 10 years in prison before his new attorney challenged the verdict, arguing that the circus-like media environment had violated Sheppard’s due process rights under the Fourteenth Amendment. The U.S. Supreme Court agreed, holding that Sheppard had been denied a fair trial. At his retrial in 1966, he was found not guilty.

Sheppard fundamentally changed how courts think about control and media management. It established that a judge has a duty to protect the defendant’s right to a fair trial, and that uncontrolled publicity can make a trial unconstitutional.

The following pop-culture examples show how media attention, and now social media, can challenge the balance that Sheppard tried to protect.

California v. O.J. Simpson: Televised Trial to Public Entertainment

The O.J. Simpson trial marked a turning point in how Americans experience courtroom proceedings. It transformed what had long been known as a newspaper frenzy into a broadcast spectacle.

Like Sheppard, the case attracted enormous media attention, but it taught us a new lesson: cameras don’t necessarily have to violate fairness in order to shape narrative.

The shift began with the Bronco chase, which 95 million people watched live. From that moment, the case stopped being ordinary news — it became national entertainment.

But, televising the trial didn’t make it unconstitutional. It didn’t deprive O.J. of a fair trial the way Sheppard was deprived. But it did something else — something just as consequential for the future of courtroom transparency:

It turned a criminal trial into a cultural phenomenon, one where the public felt like participants rather than observers. A trial became a story, evidence became episodes, and the line between truth and entertainment got thinner.

Depp v. Heard: Social Media as a Courtroom

Public perception of the Depp v. Heard trial did not always align with the legal standards for defamation. Depp’s attorneys and PR team strategically reframed the case into a domestic violence narrative, even though, in actuality, it was a defamation claim based on an op-ed that didn’t even mention his name. The trial thrived in the court of public opinion, and that strategy worked.

Yes, this was a civil case and Sheppard v. Maxwell was a criminal case. But does that distinction matter as much as we think? In a criminal trial, someone’s freedom is on the line; in a defamation case, someone’s reputation is on the line. And who is a man without his reputation? Those stakes are different, but not necessarily lesser.

In the age of social media, cameras don’t just document a trial — they help shape the narrative around it.

TikTok essentially became a shadow courtroom. Millions of users clipped testimony, edited evidence, mocked witnesses, and created memes. Many of these videos skyrocketed into the billions of views. Online, the trial looked less like a legal proceeding and more like a fandom, complete with favorite lawyers, villain arcs, and trending audio.

Gender and narrative bias also played a major role. Social media often cast Depp and Heard into simple “hero” and “villain” roles, especially regarding domestic violence.

This case raises a new question: Does the public become a kind of “13th juror” when the trial is subject to the media?

California v. Menendez: Narratives Outliving the Trial

The Menendez case shows how televised trials can create narratives that last long after the verdict. Pretrial publicity and the Beverly Hills backdrop turned the brothers into instant media characters — either “rich kids who killed for money” or teenagers trapped in a violent home. Emotional testimony aired, and public sentiment swung depending on which narrative viewers connected with.

What makes this case especially important is that it played out twice. In the first trial, cameras captured every aspect, every moment, from beginning to end. The jury hung. In the second trial, cameras were banned, and the brothers were convicted. Few cases illustrate this contrast so starkly: cameras didn’t decide guilt or innocence, but they undeniably shaped how the story was understood.

And the story didn’t end there. Decades later, the case is still being reinterpreted through Netflix docuseries, TikTok commentary, and Gen Z true-crime fandom. People who weren’t even alive during the trial, including me, became fascinated by it. The Menendez brothers are a perfect example of the afterlife of a televised trial.

New York v. Luigi Mangione: Modern Social Bias

The Mangione case shows just how dramatically social media can distort public perception. On TikTok, clips of the defendant circulated at lightning speed. And not because of the legal facts, but because people found him young and attractive. That alone became the narrative, and algorithms rewarded it. Comments romanticized him, and fan edits emerged. Suddenly, the conversation was about a persona created online.

This is modern bias in real time. When a defendant goes viral, the public is responding to a curated, edited version of reality stitched together by strangers. TikTok’s structure turns defendants into characters and audiences into participants. Virality becomes its own kind of defense team.

This case is the perfect warning sign for what social media can do to the justice system: A defendant can gain millions of supporters or critics without the public ever hearing a single piece of admissible evidence.

In today’s world, an online narrative can overshadow everything else.

Do cameras help or hurt in a courtroom?

If you’re Johnny Depp, cameras help. If you’re Samuel Sheppard, cameras hurt.

Cameras can help when …

• building transparency and trust in the justice system

• the media holds the government accountable

• the public is educated on proceedings and the law

Cameras can hurt when …

• they influence juries

• viral clips distort facts

• participants perform for the audience

Cameras aren’t neutral. They can do a good deed, or they can destroy it in the process.

So, what does the law actually say?

Sheppard v. Maxwell made one thing clear: the media’s right to a free press does not override a defendant’s right to a fair trial. When the two collide, we look to the judge to protect fairness.

Here’s what that looks like in practice:

• The First Amendment does not guarantee a right to televise trials.

• In Chandler v. Florida (1981), the Supreme Court clarified that the public’s right to attend trials does not include a presumptive right to cameras.

• Judges have broad discretion to decide if cameras are allowed, and how many, where they can be placed, and what they can record. They can prohibit filming of jurors or vulnerable witnesses altogether.

• In the U.S. Supreme Court, cameras are never allowed during proceedings.

• In federal criminal courts, cameras are completely banned.

• In federal civil cases, some Circuit and District Courts may allow cameras, but only in select proceedings, with the consent of parties, and always at the judge’s discretion.

• State courts vary — some allow cameras, others restrict or prohibit them.

• Judges are supposed to take steps to prevent prejudicial publicity.
  
  

In other words: public access is not the same thing as broadcast access. The difference is the heart of the entire debate.

Transparency matters, but so do fair trials. The First Amendment was built on sunlight. The Sixth Amendment was built on fairness. Cameras sit right at the edge of both.

You might be left thinking “What should we, as Americans, be doing to ensure the balance of the First Amendment and Sixth Amendment?”

Here’s what you can do:

• Pay attention. Be aware of how our courts balance transparency and fairness. Watch trials with context.

• Practice critical thinking. Ask where information comes from, how it’s framed, and what might be missing.

• Think before you share. Viral clips are powerful, and the repost button is tempting. Make sure you understand the weight of what you’re passing along.

Before we begin, I want to start with who I am and why I’m writing this.

I’m an undergraduate student at Elon University studying Strategic Communications and Political Science. I’m a student journalist, a future law student, and someone who is genuinely obsessed with the First Amendment.

I’m creating this series because I believe deeply in the First Amendment and in what it stands for.
It gives every person a voice.
It protects your right to speak, to pray, to gather, to question your government, to publish truth, and to challenge power.

I believe in upholding those rights regardless of viewpoint.
Whether you’re Charlie Kirk or Alexandria Ocasio-Cortez, your voice has power.
It matters. And it deserves protection.

The First Amendment doesn’t belong to people who look like me, think like me, vote like me, talk like me, or believe like me.
It belongs to all of us — and that means all of us have a responsibility to defend it.

No one is coming to save it for us.
We have to use it, exercise it, and protect it.

But today, the First Amendment is under pressure. Polarization, censorship debates, book bans, disinformation, campus speech battles, government transparency issues … it’s all connected. And if we don’t understand how these freedoms actually work, we risk losing them without even realizing it.

This series is my way of fighting back against that.

Every post will break down a principle, a doctrine, or a court case — not in legal jargon, but in real-world language. My goal isn’t to argue for one side or another. My goal is creating a shared understanding of our rights. A space where people can learn how the First Amendment protects them, limits them, and shapes their daily lives.

Because the free marketplace of ideas — messy, loud, uncomfortable, and beautiful — is the backbone of a democratic society.

And we are nothing without it.

Welcome to Media Law for the Real World.
Let’s get into it!