CREATORS
January 6, 2026
Israeli
billionaire Shlomo Kramer recently suggested on CNBC's "Money Movers"
that governments must restrict freedom of speech in the age of Artificial
Intelligence."
You're
seeing the polarization in countries that allow for the First Amendment and
protect it, which is great. And I know it's difficult to hear, but it's time to
limit the First Amendment in order to protect it," he said.
Kramer was
speaking, generally, of countries that protect freedom of speech and expression
in their constitutions and not just America's First Amendment.
The First
Amendment to the United States Constitution was ratified, along with nine other
amendments to the U.S. Constitution referred to as the Bill of Rights. The
First Amendment reads:
"Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government
for a redress of grievances."
Those 45
words lay the groundwork for some of our most cherished and fundamental rights
— freedom of religion, freedom of speech, freedom of the press and the right to
assemble.
In 1919,
U.S. Supreme Court Justice Oliver Wendell Holmes established the
clear-and-present-danger test: "whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has the right to
prevent." This is the opinion where Holmes declared the now-famous example
of unprotected speech — falsely crying "fire" in a crowded theater.
So,
clearly not all speech is protected under the First Amendment. The First
Amendment does not simply say that if words are involved, you cannot be held
responsible for their consequences.
The First
Amendment restricts government censorship, not rules set by private companies
or employers. That means private platforms, employers, or TV networks can set
their own rules about what employees or users can say, as long as those rules
are made free from government interference or pressure.
Recently,
late-night host Jimmy Kimmel was temporarily taken off the air after the
government threatened to retaliate against ABC, his employer. Federal
Communications Commission Chairman Brendan Carr criticized one of Kimmel's
monologues about the killing of conservative influencer Charlie Kirk.
Carr
specifically called on ABC affiliates to inform ABC that they would not carry
Kimmel's show and pointed out the power that the FCC has over the broadcasting
licenses of the affiliates.
Kimmel's
show was pulled. The public was outraged. A private company has the right to
control the speech of its employees without triggering the First Amendment. If
the government coerces a private company to control speech, the First Amendment
is violated.
What
exactly is Kramer proposing to control — hate speech, disinformation or
unflattering thoughts about government leaders?
Can the
government punish hate speech?
The U.S.
Supreme Court has said "no." In 2017, in a decision striking down a
federal law banning disparaging trademarks, Justice Samuel A. Alito Jr. said
the government had no business "preventing speech expressing ideas that
offend."
Can the
government prohibit speech that causes distress?
The
Supreme Court again said "no." Courts would not stop a planned march
by the American Nazi Party in Illinois in 1977, though it would have been
deeply distressing to the many Holocaust survivors who lived there.
The First
Amendment does not protect incitement of violence, but even there, the Supreme
Court defined the prohibition very narrowly, requiring a likelihood of imminent
violence.
Limiting
online speech is a slippery slope. Striking a balance between removing harmful
content and protecting legitimate expression is difficult at the very least.
Maybe, more importantly, in our current political climate, the regulation of
any speech could be used to silence dissent and suppress the marginalized.
Matthew T.
Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book
The Executioner's Toll, 2010, was released by McFarland Publishing. You can
reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
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