When Speech Is Not Protected

This panel discussion focused on the criminal limits of the First Amendment and the circumstances under which speech is not constitutionally protected. Panelists examined how certain forms of expression - such as true threats, speech integral to criminal conduct, and material support provided at the direction of designated terrorist organizations - can lose First Amendment protection and become the basis for criminal liability.

The discussion explored how courts and law enforcement distinguish protected expression from punishable conduct, particularly in online and digital contexts, including threats posted on social media and speech that facilitates or advances criminal activity. Panelists also considered the legal standards governing intent, imminence, and harm, as well as the broader implications for free expression, public safety, and constitutional doctrine.

Featured panelists:

• Melody Wells: Former Chief of the National Security and Cybercrime Section, United States Attorney's Office for the Northern District of Illinois
• Joseph Ferguson: Co-Director, Loyola Law School National Security and Civil Rights Program and President, Civic Federation

This event was moderated by Senior Research Fellow at the Program on Extremism Barry Jonas.

On February 24, 2026, the Program on Extremism (PoE) at the George Washington University held a panel discussion regarding the criminal limits of the First Amendment. The panel featured Melody Wells, the Former Chief of the National Security and Cybercrime Section, United States Attorney's Office for the Northern District of Illinois and Joseph Ferguson, the Co-Director, Loyola Law School National Security and Civil Rights Program and President, Civic Federation. This event was moderated by Senior Research Fellow at the Program on Extremism Barry Jonas.

The panel began with Ferguson defining speech. He explained that speech is more than just words; it is communication. Communication can take many forms, ranging from subtle gestures and expressions to more expansive acts such as writing, marching, and donations. Speech is equal to communicative acts.

The discussion subsequently turned to categories of speech that the law does not safeguard. Wells explained that speech is not always protected because it can cause harm towards a person or people. Even if the speech causes no direct harm, the fear it instills is itself a crime and is harmful to those who receive it. This principle is particularly relevant when considering Foreign Terrorist Organizations (FTOs); any speech done on the organization’s behalf falls outside the bounds of protected expression. The rationale for limiting certain speech is to protect people from potential dangers. Ferguson furthered Well’s points using a classic example: shouting “fire” in a crowded room. This speech is not protected due to the danger and fear it places on those who hear it.

Building on this idea, the discussion then turned to the ways in which threats and speech fall under the purview of national security. When terrorists plan attacks, one of their goals is to create broader societal impacts. Speech is considered a matter of national security because governments and law enforcement aim to prevent threats or harm before they over, rather than reacting to them. Ferguson explained this as an asymmetric threat, as it has the narrow target (e.g., a bombing), but it also has the broad fear and future danger present in the rest of society. Wells also noted that speech can fall under the field of national security because it is becoming more interstate through the use of technology.

Wells further expanded that even though a true threat may not have the capacity to be carried out, it can still be prosecuted  due to the harm and disruption it causes to a community. She cited the case of a school bomb threat as an example. After it is determined that the threat was false or had no ability to be carried out, the person who made the threat can still be charged because the school had to close or evacuate, thereby creating major disruptions to the community. This bears relevance to the investigation of speech. Both Ferguson and Wells explained that the FBI is prohibited from opening an investigation solely on speech. However, they are permitted to examine the context of the speech, including the intentions of the words. Essentially, they can conduct a preliminary inquiry but not a full-fledged investigation. After determining the context and repercussions of the speech, then an investigation can be opened.

A major topic discussed in this panel was material support for FTOs. Wells clarified that advocating support for a FTO is protected speech. The example used was hanging an ISIS flag outside your home. Despite many people not agreeing or finding it distasteful, it is protected in the United States. This speech loses its protection when it is coordinated with a designated group. For instance, if ISIS directs an individual to hang up their flag, then that speech is no longer protected. Another key point highlighted by Wells is that certain activities that are legal in other contexts are illegal for FTOs. For example, working as an accountant for ISIS is illegal, even though the same role would be perfectly legal for other organizations.

The panel concluded by discussing other forms of unprotected speech. Incitement, the act of encouraging someone to commit a crime, is unprotected speech. When a thought is moved to action, specifically violent action, then it constitutes incitement. Other forms of unprotected speech include perjury, fraud, and hate speech. Ferguson remarked that hate speech is an extremely complex issue, but it often leans towards the direction of extremism and terrorism.