Sound and Fury: Government Reaction to Protests and the Downfall of First Amendment Rights

At a time when protesters are being arrested for speaking out against the government and the media is being silenced [1], understanding the history of the First Amendment of the American Constitution has become more important than ever. The First Amendment to the Constitution reads in part, “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble” [2]. From a cursory reading alone, this assertion appears unambiguous: the government may not restrict the rights of citizens to protest let alone publish criticism of its actions.
Thus, under First Amendment jurisprudence, does the U.S. government retain the ability to silence, whether through arrests or censorship, those who seek to protest against its recent crackdown on immigration? This article will specifically address the response of the second Trump administration to the actions of protesters in various states. Ultimately, this essay will argue that based on several different interpretations of the First Amendment, the government is not acting within its rights by curtailing the speech or free assembly of protesters through arrests and censorship. The only question left to answer is what forms of speech and writing are not permissible? For this we must look to past precedent.
One of the most important early First Amendment cases to come before the Supreme Court was Schenck v. United States (1919). During World War I, Charles Schenck, an anti-war activist, was charged, under the 1917 Espionage Act, with obstruction of justice [3]. Schenck, the Secretary for the Socialist Party of Philadelphia, had printed 15,000 fliers and sent them to men waiting to be conscripted into World War I urging them not to submit to the draft. After suing the government on the ground that the espionage charge violated his right to free speech, the lower court ruling, which had convicted Schenck under the espionage act, was unanimously upheld by the Supreme Court [4]. In what became a famous line, Justice Oliver Wendell Holmes Jr. observed that Schenck was not exercising his rights during “ordinary times” and compared his actions to those of a man falsely shouting fire in a crowded theater. This decision established a precedent which would be largely upheld for the next fifty years: the “clear and present danger” test. This standard simply stated that if the defendant's language was likely to incite violence it was not protected by the First Amendment. It was only in 1969 with the ruling of Brandenburg v. Ohio that the principle rules for dangerous speech and action were refined [5]. Brandenburg established a stricter standard, termed the “imminent lawless action” test, to determine the danger posed by speech acts. Whether an act was unprotected by the First Amendment hinged on two factors: (1) the speech or action in question had to be made with the intent to provoke violence and (2) likely to produce lawless action [6]. Unlike Schenck, Brandenburg requires intent to be definitively proven and does not simply question whether violence would be a likely consequence.
It is therefore necessary to establish how, under the precedent outlined above, the recent actions of anti-government protesters are not prosecutable pursuant to their First Amendment rights. Among these examples was the arrest of 12 students and staff members at Columbia early in February of 2026 [7]. Video evidence suggests that the protesters in question were blocking a main street while wearing t-shirts that read “sanctuary campus now” and holding signs that bore slogans such as “for the people we love” and “hands off our campus.” While it is undeniable that the protesters were holding up traffic, neither their speech nor their right to assemble appears unprotected by the First Amendment. As the standard in Brandenburg outlines, not only must the protester in question be speaking with the intent to provoke violence, but there must be a legitimate threat of illegal action as a result. Neither was evident, and thus the speech must be protected under the First Amendment.
Even in the sometimes violent protests that have shaken Minnesota recently, the speech of demonstrators has remained critical but unthreatening by legal standards. One such example can be seen in the arrest of several citizens who disrupted a church service in Minnesota in January. Videos of the event show activist Nekima Valdez Levy Armstrong standing inside the church in question with a microphone questioning how one of the church pastors, David Easterwood, can claim to be God loving given his apparent membership in ICE [8]. A signed affidavit from a special agent of the Homeland Security Investigations has also stated that the protesters "intimidated, harassed, oppressed, and terrorized” church goers [9]. Just as in the Columbia protests, the speech associated with this protest does not seem to be inflammatory to the extent that it could be prosecuted in a court of law. Whether or not Levy Armstrong and others were harassing church goers physically or infringing on the First Amendment rights (particularly of Free Exercise) of the church goers is a different question. Nevertheless, simply expressing the opinion that a member of ICE cannot be a true lover of God would be very unlikely to provoke lawless action nor, as reports suggest, did it directly do so [10]. Given that the most common statements made by protesters have not met the standards set out in cases like Brandenburg [11], any case brought by the government against these protesters would be hard to pass First Amendment muster.
This last fact becomes even more evident when one considers the different ways in which each Justice might interpret the First Amendment. Generally, the three most common interpretations of the Constitution are either textualist, originalist, or pragmatist. Textualists believe that legal texts should be interpreted simply as they are written without taking into account things like intent or purpose [12]. Originalists view the Constitution as static: it should be interpreted now according to its original public meaning[13]. Pragmatists, sometimes known as living constitutionalists, believe that the Constitution’s meaning changes over time to reflect contemporary social and political standards. Rather than simply interpreting the Constitution as it is, judgments should reflect the moral choice that is best for society [14].
Since the end of World War I, the First Amendment has been interpreted quite broadly, regardless of one’s preferred interpretive theory [15]. Were the protesters to raise contested First Amendment protections against prosecutions, textualists, originalists, and pragmatists might actually provide similar answers. Textualists and originalists would both observe that, as it is written, the Constitution seems to protect essentially all speech. Especially given that the protesters’ words cannot reasonably constitute hate speech or pass the imminent lawless action test, there would be no reason to curtail what they had said. Living constitutionalists would likely agree but might offer different reasons. Given their commitment to interpreting the Constitution in a way that most benefits society, pragmatists might suggest that, at a time when protest is seemingly inevitable, speaking out against the government and its agents could be acceptable within such a context.
A potential charge that may be leveled at protesters that could result in a different outcome is obstruction of justice. Obstruction of justice is defined as “actions by individuals that illegally prevent or influence the outcome of a government proceeding.” [16] While such a charge may be difficult to level on the basis of speech, it is easy to see how protests outside ICE facilities like the ongoing clashes in Portland, Oregon could be framed as such [17]. While much of the attention has been placed on the use of tear gas by ICE agents in an effort to discourage protesters, based on images of the scene the government could reasonably claim that demonstrators blocked the entrances and exits to the building, preventing agents from doing their jobs. In a mini trial held in Portland, regarding the disruption that chemical weapon use had incurred on tenants in surrounding buildings, the presiding Judge Amy Baggio acknowledged that protesters were occasionally rowdy and had vandalized property. This was true to an even greater extent in the case of a protest which occurred outside of a Texas facility where a young boy, Liam Ramos, and his father were being held. As in the case of the protesters who interrupted the church service, however, it would not be the speech that is in question should the government try to prosecute protesters for obstruction of justice.
While this analysis has considered the dangerousness of speech in itself so far, a final thing to consider is whether speech may be approached differently during a time of crisis. Schenck hinged on this distinction. Since it was decided during a time of war, Justice Holmes observed that heightened scrutiny was acceptable because it was not an “ordinary time” [18]. The U.S. is clearly not in a time of war, but, some may argue, it could be considered to be in a time of Constitutional crisis. Time and place restrictions such as these, however, do not relate to the content of the speech in question. In the case of protesters, the time of day, number of people, and noise levels are all within the right of the government to control [19]. That said, in the ruling for Ward v. Rock Against Racism (1989) the Supreme Court held that the speech in question must pass three tests to qualify for restriction [20]. First, the restrictions curtailing speech must be content neutral, second the restriction must be serving a specific government purpose, and third, there must be enough alternative ways for the message in question to be communicated. Applied to the recent protests, it is unclear that restricting protesters would pass these standards. While the government could argue that the speech in question deserves to be restricted on the latter two grounds, it would be difficult for them to claim that they were restricting speech based on wholly “content neutral” reasons given that the speech in question is critical of its actions.
Overall, contemporary interpretations of the U.S. Constitution tend to view actions and speech under the First Amendment as very widely protected. In the case of protests against the government, such as those which have recently been emerging across the country, the government would have a very weak case to prosecute demonstrators because of their First Amendment rights. This results from two principal facts: a) the speech in question does not pass the imminent lawless action test outlined in Brandenburg and b) time, place, and manner restrictions would not likely be fully applicable were the government to bring such a case before the Court. The government’s recent failures to bring successful cases against protesters suggest that restricting the latter’s actions may be quite difficult [21]. Given the widespread misinformation that the Department of Homeland Security has apparently used in their cases [22], it is unlikely that other cases brought by the government will be truly successful. Nevertheless, if journalists and students alike face arrest for doing their jobs or peacefully demonstrating, what direction is our country headed in?

References

[1] Karnowski, Steve. 2026. “Don Lemon Pleads Not Guilty to Civil Rights Charges in Anti-Ice Minnesota Church Protest.” PBS,. https://www.pbs.org/newshour/politics/don-lemon-pleads-not-guilty-to-civil-rights-charges-in-anti-ice-minnesota-church-protest

[2] U.S. Const. amend. I.

[3] Barnett, Randy E., Josh Blackman, and Erwin Chemerinsky. 2020. An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. New York: Wolters Kluwer,, 261.

[4] Id at 216.

[5] Brandenburg v. Ohio, 395 U.S. 444 (1969).

[6] Ibid.

[7] Newsroom. 2024,“What We Know about the Protests and Arrests at Columbia University,” eKathimerini.com. https://www.ekathimerini.com/nytimes/1237771/what-we-know-about-the-protests-and-arrests-at-columbia-university/.

[8] Fort, Georgia. 2026. “Protesters Disrupted Church Service at Cities Church in Saint Paul” Facebook, https://www.facebook.com/ByGeorgiaFort/videos/protesters-disrupted-church-service-at-cities-church-in-saint-paul-this-morning-/1417324916664493/.

[9] NBCNews. 2026. “Federal Judges Reject DOJ Motion to Detain Arrested Minnesota Protesters.” NBCNews.com. https://www.nbcnews.com/news/us-news/federal-judge-rejects-doj-motion-detain-arrested-minnesota-protesters-rcna255666.

[10] Ibid.

[11] 395 U.S. 444 (1969)

[12] HLR. 2025. “The Incompatibility of Textualist and Originalist Approaches to Legislative History.” Harvard Law Review.

[13] Ibid.

[14] Thurman, Todd. 2023. “Living Constitutionalism.” American Cornerstone Institute. https://americancornerstone.org/living-constitutionalism/.

[15] National Constitution Center “Freedom of Speech and the Press.” constitutioncenter.org. Accessed March 7, 2026. https://constitutioncenter.org/the-constitution/amendments/amendment-i/interpretations/266.

[16] Legal Information Institute. “Obstruction of Justice.” Accessed March 7, 2026. https://www.law.cornell.edu/wex/obstruction_of_justice.

[17] Wilson, Conrad. 2026. “Body Camera Footage Shows Federal Response to Portland Ice Protests.” https://www.opb.org/article/2026/03/04/oregon-portland-ice-immigration-tear-gas-protest/.

[18] Schenck v. United States, 249 U.S. 47 (1919)

[19] The Free Speech Center. 2024. “Time, Place and Manner Restrictions.” https://firstamendment.mtsu.edu/article/time-place-and-manner-restrictions/.

[20] Ward v. Rock Against Racism, 491 U.S. 781 (1989)

[21] The Guardian. 2026. “DOJ Cases against Protesters Keep Collapsing as Officers’ Lies Are Exposed in Court.” https://www.theguardian.com/us-news/2026/feb/21/doj-protesters-federal-agents-cases.

[22] Ibid.