The Erosion of Free Speech in the United States: History, Law and Recent Developments

Freedom of speech has long been a foundational principle in the United States, protected by the First Amendment to the U.S. Constitution. Over the years landmark Supreme Court cases, evolving legal doctrines, and shifting political and cultural norms have defined, restricted, and reshaped the boundary between protected speech and punishable expression. In recent news, the U.S. government has introduced new measures that many see as further encroachments upon free speech — particularly in relation to foreigners and what they say online about prominent political events. Here we explore that trajectory: first, how historical legal precedents established protections; second, how those protections have systematically been chipped away or challenged; and third, how recent government actions relating to the killing of Charlie Kirk illustrate where we are now — and how fraught the tensions are becoming between free speech and state suppression.

Historical Legal Foundations and Key Precedents

To understand contemporary erosion, it is important to see free speech not as a static right, but one that has been shaped over time through many court cases, legislative acts, and social struggles. Below are several of the most significant legal moments:

1. Early 20th Century: Espionage, Sedition, and the Clear-and-Present-Danger Test

   
   

   • During World War I, the U.S. government used laws such as the Espionage Act of 1917 and its amendments (including the collection of statutory provisions known as the Sedition Act of 1918) to suppress dissent, particularly speech critical of the war effort. The Sedition Act forbade “disloyal, profane, scurrilous, or abusive language” against the government, the flag or the armed forces. 

     
     

   • One early Supreme Court case, Schenck v. United States (1919), upheld the conviction of an anti-war activist distributing pamphlets. In that decision, Justice Oliver Wendell Holmes Jr. introduced the “clear and present danger” test: speech may be restricted if it poses an immediate threat or danger. 

     
     

   • But this test was later refined. For example Abrams v. United States (1919) upheld convictions of Russian immigrant dissenters during war, but Holmes (joined by Brandeis) dissented, emphasising stronger protection even in wartime for expression. Over time, the jurisprudence moved toward more protection for dissent, especially as fears about government overreach grew. 

   
   

2. Mid-20th Century: Civil Rights, Libel, Press Freedoms

   
   

   • New York Times Co. v. Sullivan (1964) marked a crucial evolution in the right of free speech. The Supreme Court held that public officials seeking damages for defamation must show “actual malice”—that the statement was made knowing it was false, or with reckless disregard for truth. This ruling protected the press and critics against being silenced by defamation suits simply because their reporting or commentary was critical and perhaps imperfect. 

     
     

   • Other cases — for example involving obscenity, or restrictions on speech in times of crisis — further fleshed out limits and protections, often balancing order vs. liberty. Over decades, the Supreme Court has generally moved toward stronger protection of speech, especially political speech, dissent, and criticism of government. 

   
   

3. Imminent Lawless Action and Modern Tests

   
   

   • A major turning point was Brandenburg v. Ohio (1969). In that case, the Supreme Court replaced earlier tests with one that protects speech except where it is (a) directed to inciting imminent lawless action, and (b) is likely to produce such action. This is now the standard test for when advocacy of violence may be restricted. 

     
     

   • Over time challenges to defamation laws, prior restraints, and other forms of suppression have often turned on whether speech was truly dangerous in an immediate and concrete way, rather than merely offensive, unpopular, or critical of powerful interests.

   
   

Erosion and Modern Pressures

While the legal rules have often trended toward protection, in practice and in recent years there is clear pressure upon American freedom of speech from multiple fronts.

• Political Pressure & Polarisation: Criticism is often labeled extremist or illegitimate depending on which side of the spectrum it lies. This causes chilling effects even when speech is legally allowed.

  
  

• Private Platforms & Content Moderation: Social media companies (not bound by the First Amendment) impose rules about misinformation, “hate speech” and the like, which may be applied unevenly, opaquely, or in ways that favour certain viewpoints or political actors.

  
  

• Governmental Influence and Surveillance: Government agencies have increasingly been involved in pressuring or collaborating with online platforms, demanding greater scrutiny of individuals’ social media, vetting visa applicants’ online history, and similar.

  
  

• Cultural Norms and Social Sanction (“cancel culture”): Even when legal protections hold, people may self-censor to avoid public shaming, loss of job, or reputational damage in a deeply divided society in which people with differing political views self-partition.

The Killing of Charlie Kirk & U.S. State Department’s Decision

A stark example of recent developments is the U.S. State Department’s policy, under the second Trump administration, to penalise foreigners who make certain comments about the killing of Charlie Kirk. Kirk was a conservative political activist in the United States, co-founder of Turning Point USA, and a prominent voice in conservative media known for making occasionally provocative statements. On 10 September 2025 he was shot dead while speaking at Utah Valley University, at an event known as his “American Comeback Tour.” 

In consequence Deputy Secretary of State Christopher Landau has publicly stated that foreigners who “praise, rationalize, or make light of” Charlie Kirk’s killing will be subject to “appropriate action” by consular officials. This could include revoking visas or denying visas to foreign nationals whose online speech is deemed to cross the line. The exact enforcement mechanisms have not so far clearly specified. The administration also called on the public to report such speech by foreigners. Consular officials have been direct to monitor social media comments. 

This is alarming because speech by foreign nationals, especially while made in the United States or online, is typically afforded significant First Amendment protection under U.S. law. The U.S. Constitution protects “persons”, not only citizens, and while constitutional protections have limits for people outside the United States people with significant connections with the United States, or who are commenting on US current and political events, are afforded constitutional protections.

However visa and immigration law is a domain where the government typically has more discretion. The State Department and other agencies have long imposed restrictions based on character, criminal history, or statements deemed to threaten national security. But expanding that discretion into speech that is critical, mocking or provocative represents an escalation.

Vague standards (“making light of”, “glorify violence”, “praising or rationalising”) raise serious due process and free speech concerns. What level of criticism or commentary might cross the line? Could satire, humour or academic criticism become grounds for visa denial or revocation? This is likely to cause a chilling effect: even citizens, visa-holders or potential visitors abroad may refrain from speech out of fear that what they say online could affect their ability to travel, live in the U.S. or engage in public life. Foreigners in particular may fear that they have a fork-in-the-road choice: refrain from criticising the U.S. government, or do not travel to the United States again.

Legal Tension: Constitution & Precedent versus New Policy

This new policy must be understood in the context of constitutional limits and legal precedent.

• Under First Amendment jurisprudence, restrictions on speech must meet high standards (especially content-based restrictions). Government suppression or punishment of speech must show that the speech is either unprotected (libel of private persons, threats, incitement of imminent lawless action and the like) or that the restriction is narrowly tailored to a compelling interest.

  
  

• Visa or immigration policy is often treated differently. The U.S. Supreme Court has recognised more leeway for the Executive Branch in excluding or denying entry to foreign nationals on grounds of national security or public order. But even there, traditionally, due process and notice have been required.

  
  

• The policy announcements about penalising speech related to Charlie Kirk’s killing may challenge or test these precedents. If enforced broadly, they may conflict with legal protections for speech—especially speech that is critical or dissenting in nature, unless it truly crosses into incitement or threats.

Where We Stand & What’s at Stake

Summing up:

• The U.S. has a long tradition of protecting free speech, grounded in constitutional law and fortified by landmark cases such as Schenck, Brandenburg, and New York Times Co. v. Sullivan.

  
  

• But that protection has always been imperfect, often contested, and subject to erosion especially in times of crisis, war, or political polarisation.

  
  

• The recent State Department move regarding Charlie Kirk’s killing marks a concrete, current manifestation of those pressures. By linking visa status (a privilege) to speech, especially speech by foreigners, the government is entering into territory that many see as threatening to core free speech principles.

  
  

• The danger is not only in overt censorship, but in creating an environment where speech is disciplined by fear: fear of being barred from the country, fear of losing legal status, fear of being socially or politically ostracised.