Introduction

When the First Amendment was ratified in the Constitution over 200 years ago, the purpose was to prevent the government from enacting laws that would restrict free speech and other individual liberties—in essence, to prevent government overreach. Since then, for some, the First Amendment has become mythologized into the right to say whatever you want without consequences. This has also coincided with a shift from the First Amendment as a more progressive liberal agenda, protecting minority viewpoints and supporting various social movements such as civil rights and LGBTQ rights, among others, to a more conservative one that believes political correctness has gone too far. Then in 2016 with the election of Donald J. Trump as President and the ushering in of the MAGA movement, MAGA supporters have become some of the staunchest advocates of free speech. They believe their views are underrepresented and unfairly criticized in the media and are concerned about censorship and policies that would limit their ability to speak freely online. However, advocates of the First Amendment are not confined to particular political groups. A 2024 poll from the Cato Institute reported that 74% of Americans say free speech is extremely important to them personally.

But political rhetoric in the U.S. has intensified. Political polarization is probably more extreme now than it has been since the Civil War. Social media platforms serve as echo chambers that exacerbate political divides. The anonymity of posting comments online has emboldened people to express aggressive and violent sentiments. Social activism has become more brazen as well. Protests conducted without restraint are becoming increasingly ubiquitous (e.g., George Floyd and Black Lives Matter, college protests over the war in Gaza). This is partially due to the rise of social media, which has allowed activists to mobilize on a larger scale and without traditional checks or balances.

It is fair to say the current zeitgeist is characterized by uncertainty surrounding the nature and boundaries of free speech. This begs the question of how free speech arguments play in the courtroom. Arguments have become more common in a number of different types of cases, including defamation, copyright infringement and social media regulation. Not surprisingly, the success of these arguments has been mixed.

We suspect that this divergence in general attitudes towards free speech and support for free speech arguments in specific cases stems from people only caring about the First Amendment when it applies to them—when it is their speech, rather than someone else’s, that is at issue—or when their experiences make them more likely to identify with the those that are being deprived of their right to free speech, as in the case of minority group members or MAGA supporters.

Despite the rulings made by judges, questions arise on how jurors respond to First Amendment and free speech arguments. In July 2024, the DOAR Research Center conducted an online survey to address these questions. In this survey, we questioned respondents about their views of first amendment arguments made in a hypothetical defamation case, copyright infringement case and a case involving social media regulation. Jury eligible residents of the Southern District of New York and Eastern District of New York participated in the survey. We selected these venues because the New York courts and SDNY especially has tried many of these high-profile cases where free speech arguments are being advanced.

Key Findings

Part I: Opinions and Experiences Surrounding Free Speech

In line with recent polls, the vast majority (98%) of New Yorkers think free speech is essential to being an American, and a slight majority (55%) think preserving free speech is more important than preventing hate speech.

Forty percent of respondents think that political correctness has gone too far, 31% think it’s appropriate, and 11% say it has not gone far enough.

Most respondents (56%) feel they are to some extent deprived of their right to free speech: 43% say they are deprived of their right to free speech on occasion and 13% say they are deprived of this right all the time.

Most respondents (71%) say they have not voiced an unpopular opinion because they have felt concern about being punished or penalized for doing so, yet over half (55%) say they have never been penalized for voicing their opinion. This indicates more people have a fear of being punished or penalized than is warranted. Indeed, the majority (57%) of those who have never been penalized for voicing an opinion reported not having voiced an opinion out of concern about being punished or penalized.

Predictors of Opinions and Experiences Surrounding Free Speech

To get a sense for what types of people might be more receptive to free speech arguments in legal cases, we examined characteristics of respondents who were more likely to prioritize free speech over preventing hate speech.  (See Appendix for comparison groups used throughout the survey.)

We were also interested in characteristics of those who have felt deprived of their right to free speech, those who have felt they could not voice an unpopular opinion due to concern about being penalized or punished for doing so, and those who have been penalized for voicing their opinion. Several patterns emerged from this analysis.

Predictors of Those Who Have Felt Deprived of Their Right to Free Speech

First, those who were more likely to report feeling deprived of their right to free speech were: younger, male, Conservative, Republican, Catholic or Christian, post comments on social media, and have no trust in the federal government, courts, or news media. We again see the typical MAGA profile. Indeed, 81% of White MAGA supporters and 68% of non-White MAGA supporters have felt deprived of their right to free speech.

Notably, among those who post comments on social media platforms, African Americans/Blacks, Hispanic/Latinx, and MENA (Middle East and North Africa), Puerto Rican, Native American, Indian, Filipino, and Mixed/Bi-Racial respondents were more likely than White/Caucasian respondents to feel deprived of their right to free speech. This suggests that non-Whites may identify with MAGA in some respects and use posting online as a means of being heard. Indeed, 63% of respondents who post comments online say they have felt deprived of their right to free speech compared to only 41% of those who never post comments online (p < .001). Given the relative anonymity of posting comments online, it makes sense that this would be a forum for individuals who have felt deprived of their right to free speech. Additionally, while people who post comments online were more likely than their counterparts who do not post online to report feeling deprived of their right to free speech, we also found that people under the age of 45 were more likely to post online than those 45 or older. Specifically, 80% of those under the age of 45 and 62% of those 45 and older post comments online (p < .001).

Additionally, Hispanic/Latinx respondents that were Republican were more likely than White/Caucasian Republicans and Hispanic/Latinx Democrats to report feeling deprived.

Similar patterns arose among those who have not voiced an unpopular opinion out of concern about the repercussions or have been penalized for voicing their opinion. Those profiles are provided in the following section.

Predictors of Those Who Have Not Voiced An Unpopular Opinion Due to Concerns About Repercussions

Predictors of Those Who Have Been Penalized for Voicing Their Opinion

Respondents who are African American/Black and Republican were also more likely than Caucasian/White Republicans to say they have been penalized for voicing their opinion, though there were few African American/Black respondents who identified as Republican (n = 38). Those who identify as MENA, Puerto Rican, Native American, Indian, Filipino, or Mixed/Bi-racial who post comments online were more likely than Caucasians/Whites who post comments online to report having been penalized for voicing their opinion. The same pattern emerged for Hispanic/Latinx and African American/Black respondents when compared to Caucasian/White respondents, but the differences were not as large or statistically significant. These results suggest some important differences between White and non-White MAGA supporters.

Part II: Trust in the Federal Government, Courts, and News Media

Most respondents (82%) say they have some to complete trust in the courts; most (75%) say they have some to complete trust in the federal government; and most (71%) say they have some to complete trust in the news media.

Part III: Decision-Making in Hypothetical Legal Cases Involving Free Speech Arguments

We asked respondents which party they would be more likely to side with in three hypothetical legal cases involving free speech arguments: copyright infringement, online posting in violation of company policies, and defamation. To test our hypothesis that people care more about free speech when it applies to their own speech rather than someone else’s speech, in two of the scenarios (copyright infringement and online posting) we varied whether respondents were asked to imagine that the party advocating free speech was a stranger or a loved one. We expected that respondents would be more likely to support the free speech position when the party advancing that position was a loved one. In the third scenario (defamation), we tested how people view a company making a free speech argument because it may be harder to think of a company advancing an individual right to free speech. In that scenario, we varied whether the other party (the individual) was described as a stranger or loved one.

Copyright Infringement Scenario

In the first scenario, we asked respondents to imagine that someone (a stranger or a loved one) creates a digital representation of a Barbie doll and calls it art. The digital representation exists in two dimensions and is not itself a Barbie doll. The owner of Barbie, Mattel, discovers this and sues the artist for copyright infringement. We asked respondents with which side of the case they would be most likely to agree: the plaintiff, Mattel, because the artist is infringing on the company’s copyrighted product, or the defendant-artist because the digital representation is an act of artistic expression that is protected under the First Amendment.

Overall, more respondents sided with the plaintiff-company alleging there had been a copyright violation than the defendant-artist arguing first amendment protection (60% and 40%, respectively). This was true regardless of whether the artist was described as a stranger or loved one: 64% of those who heard the artist was a stranger and 57% of those who heard the artist was a loved one sided with the plaintiff-company. The difference between these two groups, however, was meaningful: In support of our hypothesis, when respondents were asked to imagine the artist was a loved one (vs. a stranger), they were statistically significantly more likely to side with the defendant-artist advocating free speech (43% vs. 36%, respectively**).

We examined characteristics of those more likely to agree with the plaintiff-company arguing copyright infringement and characteristics of those more likely to agree with the defendant-artist arguing First Amendment protection. Respondents that were more likely to agree with the defendant had never worked outside the home, especially if they were also Hispanic/Latinx or African American/Black or if they post comments on social media platforms. Interestingly, of the 17 Hispanic/Latinx respondents who have never worked outside the home, 14 (82%) sided with the defendant-artist; of the 17 African American/Black respondents who have never worked outside the home, 12 (71%) sided with the defendant-artist; of the 44 respondents who post comments on social media and have never worked outside the home, 31 (71%) sided with the defendant-artist. This suggests a profile of people who are typically suspicious of large corporations (likely because they have never worked at one) and do not trust institutions to advocate for them or their needs.

On the other hand, respondents who were more likely to side with the plaintiff-company alleging copyright infringement had characteristics suggesting they would be more likely to identify with Mattel or the executives of a large corporation or have a desire to defend large corporations. These are people who have mostly worked at large corporations, have primarily worked white-collar jobs (i.e., media/journalism, business, legal, and engineering), are religious, older, live in a suburban area, and are Caucasian or White.

Online Posting Scenario

In the next scenario, we told respondents to imagine that another person or a loved one had their X/Twitter account suspended for political comments they made on the platform. We then asked if they would be more likely to agree with X/Twitter for suspending the user’s account because the statements violated the company’s policies against content that could be perceived as threatening or inciting violence, or if they would be more likely to say that X/Twitter should not be able to suspend that person’s account because he or she has the right to freedom of speech under the First Amendment.

Overall, more respondents agreed that X/Twitter had the right to suspend the user’s account in violation of company policies than they were to say the account should not have been suspended because of First Amendment protections (59% and 41%, respectively). As in the copyright infringement scenario, this was true regardless of whether the user was a stranger or a loved one: 62% of those who heard the user was a stranger and 55% of those who heard the user was a loved one sided with X/Twitter. Again, however, in support of our hypothesis, those who were told the user was a loved one were more likely to agree that X/Twitter should not have suspended the account in support of the free speech argument than those who were told the user was just some other person (45% and 38%, respectively**).

On the other side, for those who were more likely to agree with X/Twitter’s decision to suspend the user’s accounts, we see the opposite profile: Liberals, Democrats, believe preventing hate speech is more important than preserving free speech, Caucasians or Whites that are college graduates and from an urban area as well as people over the age of 45 who are not religious. This is the profile of a more privileged group, as evidenced by the fact that these were respondents who were more likely to say they have never felt deprived of their right to free speech, have never felt they could NOT voice an unpopular opinion out of fear of punishment, have never been penalized for voicing an opinion, and do not post comments on social media.

Defamation Scenario

Finally, we presented respondents with a scenario in which a company fires an employee, who they were told to imagine was either a stranger or a loved one, amid multiple allegations of sexual harassment against him or her. After the person is fired, the company puts out a public statement that the employee had “grossly violated” the company’s standards and values and the employee is now suing the company for defamation. We asked respondents two questions. The first was whether they would be more likely to side with the plaintiff-employee or the defendant-company.

Based on this information—that is, without being told explicitly to think about the defendant’s position in the context of free speech—respondents slightly favored the plaintiff-employee over the company (53% vs 47%, respectively). Notably, however, results changed dramatically based on whether respondents imagined the employee was a stranger or a loved one. Among respondents who imagined the employee was a stranger, 55% voted for the defendant-company and 45% voted for the plaintiff-employee (p < .001). The pattern reversed for those told to imagine the employee was a loved one: 39% sided with the defendant-company and 61% sided with the plaintiff-employee (p < .001). In other words, absent thinking about the plaintiff as a close other, respondents would have been more likely to side with the defendant-company. Imagining the plaintiff as a loved one made the plaintiff’s position more favorable.

Those more likely to side with the defendant-company were again on the opposite side of the political spectrum (i.e., liberal), not religious, and have primarily worked in law enforcement or for the government.

After respondents answered this first question about which side they would be more likely to favor, we told them that it turns out the sexual harassment allegations against the employee were false. We then presented them with a second question: Do you think the company was entitled to make those statements because it was exercising its First Amendment right to free speech? Respondents were given four response options: definitely yes, probably yes, probably no, and definitely no.

Most respondents (58%) said no, the company was not entitled to make those statements: 28% said “probably no” and 30% said “definitely no”. Notably, among those asked to imagine the plaintiff-employee was a loved one (vs. a stranger), a greater proportion said “definitely no” (35% and 26%, respectively). This makes intuitive sense—if a company has harmed someone you care about, you are going to be more likely to say the company was out of line.

Respondents who were more likely to say the company still had the right to make those statements about the employee because of First Amendment protection were more likely to say they feel they are deprived of their right to free speech and that they are penalized for voicing their opinion “all the time.” It is understandable, then, that even in the face of evidence demonstrating the company had made patently false or unfounded statements, these are individuals who would still defend free speech.

Respondents who were more likely to say no, the company did not have the right to make those statements were a generally more privileged group: people who have never been penalized for voicing their opinion, have never NOT voiced an unpopular opinion because of concern about punishment, believe preventing hate speech is more important than preserving free speech, older, and live in a suburban area. We also see Whites or Caucasians that are less educated, female, and lower income being more likely to say the company did not have the right to make those statements. This is a group that likely distrusts large corporations.

Key Takeaways & Recommendations

The Balance Between Protecting Free Speech and Preventing Hate Speech

Our results reveal that people who value free speech emphasize protecting free speech over preventing hate speech, feel they have been deprived of their right to free speech, are concerned about being penalized for voicing an unpopular opinion and have been penalized for voicing their opinions. Our results also shed light on what types of people are likely to feel this way. They have no trust in the federal government or news media, post comments on social media platforms, watch only right-wing news media, are Conservative and/or Republican, younger, male, a member of racial/ethnic minority, and never worked outside the home. In other words, MAGA supporters and people whose rights have been deprived or whose voices are being suppressed. Posting online seems to be an especially strong indicator of people who prioritize free speech as it seems to serve as a forum for people looking to be heard and express their anger or frustrations.

On the other side, people who are less receptive to free speech arguments are those who historically have been advocates of free speech but now feel the First Amendment is being misused to cause harm. They value preventing hate speech over protecting free speech and have never felt deprived of the right to free speech, never felt concerned about voicing their opinions, and never been penalized for voicing their opinions. This is a more privileged group that our results indicate are more likely to be Liberal and/or Democrat, college educated, and not religious (i.e., atheist or agnostic).

Americans More Likely to Support Free Speech Arguments When It Relates to Them

One of the more interesting and validating findings from our research is the powerful effect of humanizing parties in a case. By making the party advocating for free speech someone you can imagine caring for, people on both sides of the aisle were more likely to side with their position. This is certainly more challenging in court where attempts to humanize a plaintiff or defendant are often countervailed by damaging information. Jurors may also see those personal details as irrelevant, which can backfire and further distance your client from the jury. This highlights the importance of making your client relatable and doing so without overselling. It is better to weave humanizing components throughout your case than it is to make them a standalone feature such as an introduction. But while one side is concerned with making the client relatable, the other side is more concerned with identifying jurors during jury selection who are going to identify with your client so they can remove them.

Juror Perceptions and Experiences Related to Free Speech Critical to Jury Selection

Americans’ interpretation of free speech has evolved since the First Amendment was incorporated into our Constitution. People who were once free speech advocates are now critical of those advocating for free speech. The First Amendment has been co-opted for various agendas. But the courts remain wary. And despite widespread support for the First Amendment and free speech in general, jurors are likely to be skeptical of these arguments. In each of our hypothetical scenarios—copyright infringement, defamation, and social media regulation—most respondents went against the party arguing for free speech.

Importantly, we also know what defines people in that minority who would be more inclined to support free speech arguments. This group falls into two buckets: those who want rights they have been deprived of and have experienced actual harm, and those who fear they are losing those rights and believe their speech is protected regardless of the harm it may cause. Depending on whose interests you are advancing, these individuals may be your greatest ally or your fiercest adversary.