Now Is Not the Time To Test the Limits of Free Speech

Matthew Mangino
Mon, 05 Jan 2026 23:00:00 -0800
Opinion

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.
Updated: Tue Jan 06, 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