Is freedom of expression absolute in the United States? Can employees dismissed for comments after the death of Charlie Kirk evoke the first amendment? Where is the line for a member of the government between the fact of expressing a wish to a private enterprise and the fact of exerting undue pressure?
“The current government really pushes beyond the limits that we had observed in the modern United States,” notes Catherine J. Ross, professor emeritus of right to the George Washington University, who considers that the current situation is “unprecedented”.
Last week, in the wake of the assassination of Kirk, the United States General Prosecutor, Pam Bondi, said that there was a distinction to be made between freedom of expression and hate speeches, promising to tackle it.
Hate speech
However, unlike Canada and many European countries, freedom of expression in the United States has no legally limits.
“There is no distinction between expression and expression of hatred,” explains Josh Blackman, from South Texas College of Law Houston. We can make hateful words, and they are fully protected by the first amendment. You can make racist, homophobic, xenophobic, or other words, all this is protected. »»
The line not to be crossed is the incitement to violence, explains Professor Josh Blackman, who worked with the conservative organization Heritage Foundation on a revised guide on the Constitution.
A company can legally dismiss an employee who has expressed disturbing remarks, regardless of their nature; The first amendment rather protects the Americans against a government action to restrict their freedom of expression, by a law, a policy, a prosecution, for example.
Boundaries
After the comments raised by his remarks, Mme Bondi corrected, specifying that it referred to hate speech as a result of the call to violence.
But how does the administration define violence? Trump’s close advisor Stephen Miller has himself showed what he said was an “organized campaign that led to the assassination” of Kirk, promising, at the microphone of the activist’s show, after his death, to “dismantle these terrorist networks”-even if no information was revealed on an accused belonging to an organization.
Last month, Miller also called the Democratic Party “an extremist organization” on Fox News.
It is not a ban on hate propaganda, in a way similar to that which is recognized in Canadian law, which is worrying, it is the instrumentalization of this limit to silence political criticism.
Louis-Philippe Lampron, professor of law at Laval University and co-director of the Observatory of Freedom of Expression
Prosecution
The pursuit of US 15 billion against the New York Timeslaunched by Trump last week for defamation, was quickly dismissed in court. It was added to other appeals already launched by the president since his arrival in post; Against law firms, due to causes or defended customers. Against media, especially for defamation. Against universities, accused, among other things, of discriminatory practices.
Some have settled amicably, which cost millions of dollars to the targeted parties. Other cases are still in court.
“For the separation of powers to remain a separation of powers, and that the United States remains a democracy, the judiciary must decide on the arguments presented to it,” said Mr. Lampron.
But the judicial process is slow, he adds, and large companies prefer to acquiesce requests to protect their economic interests without attracting the wrath of the government-on which they depend, in part.
Kimmel
The suspension of Jimmy Kimmel’s show has become a notorious example: his fans accused ABC and Disney, to whom the chain belongs, of having given in to the government’s pressures to preserve its license. President Trump had repeatedly denounced the jokes – on his account – of the humorist.
Brendan Carr, President of the Federal Communications Commission (FCC), who grants these rights, had suggested that the agency could intervene against Kimmel, after one of his remarks according to the assassination of Kirk.
Trump also said last week that it would be necessary to “perhaps withdraw their license” from television channels, whose content he estimated at “97 %” against him.
Senator Ted Cruz is one of the few Republicans to have denounced the tactics.
Preceding
“The Supreme Court ruled, very recently (in 2024), that government officials cannot exert pressure on private companies to adopt positions favored by the government,” said Mme Ross.
The case aimed at an elected New York Democrat, accused by the National Rifle Association of having exerted pressure on insurance companies to restrict the freedom of expression of the Proarmes lobby.
Mr. Blackman recalls the pressure exerted by the Biden administration on technology giants during the COVVI-19, to counter disinformation. “When someone from the White House calls you, you take the phone and you usually do what they say,” he illustrates.
Censorship
During the mandate of the Democrats, the Republicans had also denounced what they saw as a violation of the first amendment, and various forms of censorship.
Before being appointed to the head of the FCC, Carr, in the flagship 2025 project document, also wrote that the agency “should promote freedom of expression”.
Mr. Blackman does not consider himself “terribly concerned” by a potential limit of freedom of expression. “I think what is now under the magnifying glass is simply a different type of expression than what was before,” said the professor, explaining that the groups are still worried about seeing their censured speeches when they are not in power.
Mme Ross, who was part of a legal advisory committee on the dismissal of Trump during his first mandate, believes that the situation is “terrifying”.
“It’s incredible,” she said. Stephen Miller who says he is going to attack organizations. It is a squarely authoritarian gesture. And we should all be afraid. »»
