Defending Words
The First Amendment does not promise an unlimited right to say anything at any time—but its robust protections have long stood as a hallmark of American democracy. In an era marked by increasing demands for speech regulation—from disinformation to hate speech to online harms—free speech is under sustained attack. Nadine Strossen, a longtime constitutional law scholar and former president of the ACLU, joins TalksOnLaw to explore today’s greatest threats to free expression and to defend the enduring wisdom of the First Amendment.
The Push to Censor
A central theme of Strossen’s argument is that efforts to censor speech, whether by government or private actors, often backfire—harming the communities they purport to protect. In her interview and in War on Words (her recent book co-authored by Greg Lukianoff), Strossen draws on legal precedent and social science research to defend a robust First Amendment right.
The “Strict Scrutiny” Standard and the First Amendment
Strossen emphasizes that the U.S. legal tradition places the burden on the government to justify any restriction of speech. Under the “strict scrutiny” test, a regulation targeting speech must (1) serve a compelling government interest, (2) be narrowly tailored to achieve that interest, and (3) be the least restrictive means available. Most content-based regulations fail this test.
This standard, Strossen argues, reflects a hard-earned wisdom: that giving the government power to decide which ideas are acceptable is more dangerous than the ideas themselves. Citing cases like Brandenburg v. Ohio and R.A.V. v. City of St. Paul, she highlights the Court’s insistence that speech can only be suppressed when it directly incites imminent lawless action—a far higher bar than emotional offense or generalized fears of harm.
The Slippery Slope of Content-Based Restrictions
Throughout the conversation, Strossen returns to the idea that once content-based censorship is permitted, the slope becomes dangerously slippery. Today’s popular restrictions may be turned tomorrow against disfavored political, artistic, or religious viewpoints. The interview outlines several historical examples of this phenomenon, including the targeting of civil rights leaders under anti-subversive laws in the mid-20th century.
A consistent theme is the unpredictable nature of censorship: empowering the government or platforms to silence "bad speech" does not guarantee protection—it often leads to suppression of dissent, satire, or minority expression. Strossen calls for more speech, not less, and argues that open debate, education, and counterspeech are the most effective tools against harmful ideas.
Online Platforms, Private Censorship, and the Public Square
While the First Amendment applies only to government actors, the rise of social media has complicated the boundaries of free speech. Strossen notes that when private platforms serve as the de facto public square, decisions to moderate content—especially when pressured by state actors—raise constitutional concerns. The interview also discusses recent efforts by states and Congress to regulate online speech, with varying levels of success in the courts.
Though private companies are not bound by the First Amendment, their role in shaping public discourse has prompted a debate over whether new legal or normative frameworks are needed. Strossen cautions, however, that government involvement in content moderation—even indirectly—threatens the First Amendment’s core values.
A Positive Vision of Free Speech
Strossen does not suggest that speech alone will eliminate hate, ignorance, or extremism. Rather, she argues that a strong commitment to free speech creates the conditions necessary for truth to emerge, for communities to respond, and for society to grow more just. She draws on historical examples, such as the civil rights and LGBTQ movements, to show how once-unpopular views gained traction through persistent advocacy in the face of censorship and scorn.
Free speech, according to Nadine Strossen (and in the Supreme Court decisions she quotes), is not a luxury—it is an essential safeguard for the powerless, the unpopular, and the future reformers of today’s orthodoxy.
Additional Resources
- Brandenburg v. Ohio (1969)
Read the case – Established that speech advocating illegal conduct is protected unless it incites imminent lawless action.
- R.A.V. v. City of St. Paul (1992)
Read the case – Held that even hate speech is protected when regulation is based on viewpoint discrimination.
- Tinker v. Des Moines Independent Community School District (1969)
Read the case – Affirmed that students do not shed their constitutional rights at the schoolhouse gate.
- War on Words: 10 Arguments Against Free Speech—And Why They Fail (2025)
Buy the book – A sharp and timely rebuttal of the leading modern arguments for censoring speech, co-authored by Greg Lukianoff and Nadine Strossen.
- United States v. Alvarez (2012)
Read the case – Struck down the Stolen Valor Act as a violation of the First Amendment, reinforcing that false speech is not categorically unprotected.
- New York Times Co. v. Sullivan (1964)
Read the case – Landmark case protecting freedom of the press and setting a high bar for defamation claims involving public figures.
