The Right to Speak Freely
A grand jury shutout, keeping that right very much alive
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Freedom of Speech
A couple of weeks ago, I wrote about why the First Amendment matters [1].
For nearly 250 years, America has valued this important fundamental human right. There have been some noted exceptions to individuals saying anything that they want, but these cases are and should be extremely limited.
Fraud and violence are two main areas where “speaking freely” is not a necessarily protection; you can’t speak for the purposes of directly influencing others to commit crimes. Knowing that people can be emotional decision makers, speech can rile up these emotions in others to prompt action, and if that action is violence, this can be a reason for holding people accountable for what they say.
However, American courts (rightly) have recognized that, while speech can indirectly incite fraud and violence, governmental action need to be restricted to the greatest degree possible to protect our collective rights to speak freely.
The current test for whether imprisoning people for their speech is called the Brandenburg Test, described here from Cornell University’s Legal Information Institute: [2]
The Brandenburg test was established in Brandenburg v. Ohio, 395 US 444 (1969), [3] to define when inflammatory speech intending to advocate illegal action can be restricted under the First Amendment. The case involved a Ku Klux Klan leader who, during a rally, used racist language and suggested that “some vengeance” might need to be taken. The Supreme Court reversed his conviction under Ohio’s criminal syndicalism statute, finding the law unconstitutional.
The Court created a two-part test to determine when advocacy of illegal action loses constitutional protection. Speech may be prohibited only if:
- The speech is directed to inciting or producing imminent lawless action, and
- The speech is likely to incite or produce such action.
This test replaced earlier “bad tendency” and “clear and present danger” standards, marking a decisive shift toward stronger protections for political expression.
The Brandenburg test remains the controlling standard for evaluating the limits of speech advocating for violence or unlawful conduct. It ensures that the government cannot punish speech based solely on its content or perceived offensiveness unless it poses an immediate, concrete threat of illegal activity.
We as people need to have the ability to influence the majority, even if our views are currently in the minority. These voices must be heard, and those in government need to take a back seat, allowing the speech to happen (as long as there is no real likelihood of “imminent lawless action”).
The First Amendment is a declaration that the minority view may very well become the majority view, if only given the chance to be heard.
Throughout history, the majority sometimes makes the wrong decision, so as a people, our long-term interests are best served by allowing more information to be learned, the truth can be revealed, even if that view doesn’t yet prevail in public decision making.
For that reason, the government should be prohibited from suppressing the expression of views, especially when they run counter to the viewpoints of those in power. The ability of the people through the press and their own voices to seek out the truth and convey it for all to hear should be protected, free from obstructions created by the government. [4]
Grand Jury Shutout
American grand juries have played an important role against the abuse of government authority, especially in cases where the government attempts to suppress speech. University of Illinois professor Suja Thomas, whose research focuses on discrimination, the criminal jury, the civil jury, the grand jury, civil procedure, and employment law, wrote about the importance of grand juries during the time leading up to the American Revolution: [5]
The American grand jury was similar to its English counterpart but possibly more significant. Some American grand juries declined to indict people who criticized the Crown. In the frequently cited case of John Peter Zenger, two grand juries refused to indict him for publishing an editorial critical of the Crown. Some American grand juries also challenged the Crown including with presentments and indictments against British soldiers, and by promoting boycotts. Characterized as “indispensable” in the colonies, grand juries also acted to denounce actions by Parliament and even called for support for the war after independence was declared. They also protest local problems.
The Trump administration has been trying to use government power to silence critics. But they aren’t succeeding, thanks to the American people.
Concerns were raised about Trump administration directives to use military force in recent actions, specifically a series of military strikes targeting suspected drug traffickers in the Caribbean and eastern Pacific, which had killed at least 83 people between September and November. [6] Six Democratic members of Congress posted a video to send a message to members of the military about their obligation not to follow illegal orders. This from CNN reporting in November: [7]
Half a dozen members of Congress who previously served in the military or intelligence community are urging service members and intelligence officials to disobey illegal orders that might be issued by President Donald Trump’s administration.
In a video posted on X Tuesday, Democratic lawmakers Sen. Elissa Slotkin, Sen. Mark Kelly, Rep. Jason Crow, Rep. Maggie Goodlander, Rep. Chris Deluzio and Rep. Chrissy Houlahan said the “threats to our Constitution” are coming “from right here at home,” and repeatedly urged the military and intelligence community to “refuse illegal orders.”
“No one has to carry out orders that violate the law, or our Constitution,” they said. “Know that we have your back… don’t give up the ship.”
In the video, the lawmakers don’t specify which orders service members have received, or might receive, that could be illegal.
Service members are required to follow only lawful orders in accordance with the Uniform Code of Military Justice. Following an order that might violate the law could open service members up to prosecution, as legal precedent holds that receiving an order alone isn’t a defense, colloquially known as the “Nuremberg defense” as it was deployed by senior members of Adolph Hitler’s leadership team during legal proceedings after World War II.
The Trump administration was so upset with these Democratic lawmakers exercising their First Amendment rights, U.S. Attorney for the District of Columbia Jeanine Pirro recently attempted to indict them. However, the grand jury empaneled to authorize charges didn’t support the allegations. From CNN reporting: [8]
A federal grand jury on Tuesday declined to indict Democratic lawmakers who posted a video urging service members and intelligence officials to disobey any illegal orders from the Trump administration, according to two people familiar with the matter.
The Justice Department’s case focused on a 90-second video clip that featured six democrats, including Sens. Elissa Slotkin of Michigan and Mark Kelly of Arizona. The video, which outraged the Trump administration, had warned that “threats to our Constitution” are coming “from right here at home,” and repeatedly urged the military and intelligence community to “refuse illegal orders.”
The declination is a rebuke of the administration’s efforts to paint the six lawmakers — all of whom served in either the military or intelligence services — as dangerously undermining the president’s authority as commander in chief.
As noted by the Reliable Sources newsletter from CNN, “[t]he attempt to indict, in and of itself, warrants banner headlines. The grand jury's declining warrants a second set of headlines.” [9]
However, the humiliation was far bigger – while it is rare for a grand jury to refuse to indict or return a “no bill,” according to NBC News reporting, no single member of the grand jury agreed to the charges. [10]
None of the D.C. grand jurors who heard the Trump administration’s pitch on why they should indict Democratic lawmakers over a video urging members of the military and intelligence communities to uphold their oaths believed the Justice Department had met the low threshold of probable cause, two sources familiar with the matter told NBC News.
It’s exceedingly rare for a federal grand jury to reject prosecutors’ attempts to secure an indictment, since the process is stacked in the government’s favor. Federal grand juries need a minimum of 16 members to have a quorum, and they max out at 23 members. Just 12 grand jurors need to agree that the government had probable cause to indict, a threshold much lower than the unanimous “beyond a reasonable doubt” standard that a petit jury needs to convict.
In 2016, the Justice Department investigated more than 151,000 suspects, but grand juries returned just six “no bills,” per DOJ statistics. The vast majority of assistant U.S. attorneys will go their entire careers without being rejected by a grand jury like this. As NBC News previously reported, the lawyers who attempted to bring the case are political appointees, not career prosecutors.
It’s unclear if the office of U.S. Attorney for the District of Columbia Jeanine Pirro will push forward and try to indict the Democratic members again.
As Kyle Clark of NBC 9News Denver notes, “A rare rejection by a grand jury was a Dikembe Mutombo style block of the Trump administration's attempt to indict Democrats in Congress, including Colorado Rep Jason Crow, who stands by his call for military servicemembers to defy illegal orders.” [11]
Another Check, Another Balance
While grand juries are providing a check on the Trump administration with respect to freedom of speech, the courts are doing the same when it comes to detaining immigrants unlawfully. This from Reuters reporting on the eye-popping number of times courts have ruled against the administration “since October”: [12]
Hundreds of judges around the country have ruled more than 4,400 times since October that President Donald Trump’s administration is detaining immigrants unlawfully, a Reuters review of court records found.
The decisions amount to a sweeping legal rebuke of Trump’s immigration crackdown. Yet the administration has continued jailing people indefinitely even after courts ruled the policy was illegal.
"It is appalling that the Government insists that this Court should redefine or completely disregard the current law as it is clearly written," U.S. District Judge Thomas Johnston of West Virginia, an appointee of President George W. Bush, wrote last week, ordering the release of a Venezuelan detainee in the state.
Most of the rulings center on the Trump administration’s departure from a nearly three-decade-old interpretation of federal law that immigrants already living in the United States could be released on bond while they pursue their cases in immigration court.
White House spokeswoman Abigail Jackson said the administration is "working to lawfully deliver on President Trump’s mandate to enforce federal immigration law."
“Violence is the last refuge of the incompetent.”
From the Amazon overview [14]:
For twelve thousand years the Galactic Empire has ruled supreme. Now it is dying. But only Hari Seldon, creator of the revolutionary science of psychohistory, can see into the future—to a dark age of ignorance, barbarism, and warfare that will last thirty thousand years. To preserve knowledge and save humankind, Seldon gathers the best minds in the Empire—both scientists and scholars—and brings them to a bleak planet at the edge of the galaxy to serve as a beacon of hope for future generations. He calls his sanctuary the Foundation.
The Foundation novels of Isaac Asimov are among the most influential in the history of science fiction, celebrated for their unique blend of breathtaking action, daring ideas, and extensive worldbuilding. In Foundation, Asimov has written a timely and timeless novel of the best—and worst—that lies in humanity, and the power of even a few courageous souls to shine a light in a universe of darkness.
GIF Game
Notes and Sources
[1] Mic Farris, “Why The First Amendment Matters, January 24, 2026, https://www.micfarris.com/articles/why-the-first-amendment-matters
[2] “Brandenburg test,” Legal Information Institute, Cornell Law School, retrieved February 14, 2026, https://www.law.cornell.edu/wex/brandenburg_test
[3] Brandenburg v. Ohio, 395 US 444 (1969), https://tile.loc.gov/storage-services/service/ll/usrep/usrep395/usrep395444/usrep395444.pdf
[4] Mic Farris, Tuesday Night Fights, unpublished manuscript, 2026.
[5] Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries, Cambridge University Press, New York, 2016, p. 24.
[6] Natasha Bertrand and Zachary Cohen, “Democratic lawmakers urge troops to disobey illegal orders,” CNN, November 19, 2025, https://www.cnn.com/2025/11/19/politics/democratic-lawmakers-urge-troops-to-disobey-illegal-orders
[7] Ibid.
[8] Hannah Rabinowitz, Evan Perez, and Holmes Lybrand, “Grand jury declines to indict Democratic lawmakers who urged service members to disobey illegal Trump orders,” CNN, February 10, 2026, https://www.cnn.com/2026/02/10/politics/jury-declines-to-indict-lawmakers-illegal-orders-video
[9] Brian Stelter, “How free is your speech?” Reliable Sources with Brian Stelter, CNN, February 11, 2026, [9] Brian Stelter, “How free is your speech?” Reliable Sources with Brian Stelter, CNN, February 11, 2026, https://view.newsletters.cnn.com/messages/177082079686133062be93b65/raw
[10] Ryan J Reilly, “No grand jurors found the Trump DOJ met low probable cause threshold in failed indictment of Democratic lawmakers,” NBC News, February 11, 2026, https://www.nbcnews.com/politics/trump-administration/live-blog/trump-bondi-epstein-congress-netanyahu-iran-dhs-ice-poll-live-updates-rcna257992#rcrd99859
[11] Kyle Clark [@kylec.bsky.social], Bluesky, February 11, 2026, https://bsky.app/profile/kylec.bsky.social/post/3memq5g7dnk2m
[12] Nate Raymond, Kristina Cooke and Brad Heath, “Courts have ruled 4,400 times that ICE jailed people illegally. It hasn’t stopped,” Reuters, February 14, 2026, https://www.reuters.com/legal/government/courts-have-ruled-4400-times-that-ice-jailed-people-illegally-it-hasnt-stopped-2026-02-14/
[13] Isaac Asimov, Foundation, Del Rey (2018 edition), New York, 1951, p. 90.
[14] Asimov, Foundation, https://www.amazon.com/Foundation-Isaac-Asimov/dp/0553382578/ref=sr_1_1
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