While Justices of the Court have often disagreed over when free speech rights must yield to the government's interests, when it comes to speech promoting violence, the Court has rejected an all-or-nothing approach. Over the past 50 years, the Court has drawn a line between speech that advocates violence in the abstract and speech that facilitates it in a specific way, with the former receiving more robust constitutional protections. Some have called on Congress to restrict or even prohibit such content, which raises the question of whether the First Amendment would allow such regulation. It then considers the question of who can invoke the First Amendment by analyzing whether its free speech protections apply to foreign nationals when they post online content from abroad, for example, in circumstances such as U.S. prosecutions where online content is introduced as evidence of a crime. The report then discusses the overarching First Amendment principles that bear on what the government may regulate under the First Amendment, including (1) the distinction between regulating conduct and speech; (2) the presumed invalidity of content-based laws; and (3) relevant "unprotected" categories of speech that generally can be restricted because of their content. The First Amendment and Foreign Speakers

While the First Amendment may extend to U.S. citizens speaking abroad or foreign nationals speaking within the United States under some circumstances, the Supreme Court has not directly opined on whether the First Amendment applies to online content that a foreign national posts while located outside of the United States. Nevertheless, the Court's decisions involving the extraterritorial reach of other constitutional protections, as well as lower court decisions involving the First Amendment rights of foreign nationals, suggest that foreign nationals may face barriers in claiming First Amendment protections for such speech. To determine whether a law targets expression and depending on the facts of the case, a court might consider (1) the express terms (i.e., "the face") of the law, (2) the purpose of the law, or (3) its practical application to see whether the law is directed at certain content or speakers or applies to the challenger's activities solely as a result of what that party seeks to communicate. It reasoned that the law itself "regulates speech on the basis of its content" because whether plaintiffs are subject to prosecution "depends on what they say." Although the Supreme Court has not had many occasions to consider laws that expressly restrict online content, in a First Amendment challenge to a federal law that restricted the online transmission of certain "indecent" and "patently offensive" content, both the parties and the Court evaluated the law as regulating speech, not conduct. Under the Court's current formulation, a law that expressly regulates what topics can be discussed in a social media post would likely be considered a "content-based" restriction on speech, as the regulation "applies to particular speech because of the topic discussed or the idea or message expressed." Three of those categories are of particular relevance in the context of online speech that promotes terrorism or violence. While some scholars have cited the true threats doctrine as one avenue for the government to regulate social media content promoting terrorism or violence, others have argued that the Supreme Court's decisions in this area may provide inadequate guidance for distinguishing between real threats online and protected expression, particularly in cases where judges do not share the same linguistic frame of reference as members of a particular online community. However, the scope of the doctrine, particularly as it applies in the internet context, is not clear. In contrast, laws that primarily regulate nonexpressive conduct or unprotected speech normally are not subjected to strict scrutiny. This section examines the strict scrutiny test and the overbreadth doctrine, as well as applications of those doctrines in the context of terrorism-related offenses and criminal prosecutions involving online speech, as those standards and precedents are likely to affect how the government may regulate online speech promoting terrorism or violence. Strict Scrutiny

As previously noted, when a law regulates protected speech—especially on the basis of its content—courts generally require the government to prove: (1) a compelling governmental interest, and (2) that the law is narrowly tailored to achieve that interest. In addition, where the government has deemed certain speech harmful, the Court has in some cases required the government to demonstrate actual harms that the regulation can redress. First, it held that it was not opining on the constitutionality of "any future applications of the material-support statute to speech or advocacy" or "any other statute relating to speech and terrorism." . . [that] person." In this regard, speech on the internet advocating violence as an abstract proposition would likely be considered protected, while speech that incites imminent violence, constitutes a true threat, or is integral to criminal conduct may be deemed unprotected. Finally, the government may have more leeway to regulate online content when asserting its interests in national security and foreign affairs; however, such laws, to the extent they restrict or burden protected speech, would likely have to withstand heightened (if not strict) First Amendment scrutiny.
Recent acts of terrorism and hate crimes have prompted a renewed focus on the possible links between internet content and offline violence. While some have focused on the role that social media companies play in moderating user-generated content, others have called for Congress to pass laws regulating online content promoting terrorism or violence. Proposals related to government action of this nature raise significant free speech questions, including (1) the reach of the First Amendment's protections when it comes to foreign nationals posting online content from abroad; (2) the scope of so-called "unprotected" categories of speech developed long before the advent of the internet; and (3) the judicial standards that limit how the government can craft or enforce laws to preserve national security and prevent violence.
At the outset, it is not clear that a foreign national (i.e., a non-U.S. citizen or resident) could invoke the protections of the First Amendment in a specific U.S. prosecution or litigation involving online speech that the foreign national posted from abroad. The Supreme Court has never directly opined on this question. However, its decisions regarding the extraterritorial application of other constitutional protections to foreign nationals and lower court decisions involving speech made by foreign nationals while outside of the United States suggest that the First Amendment may not apply in that scenario. In contrast, free speech considerations are likely to be highly relevant in evaluating the legality of (1) proposals for the U.S. government to regulate what internet users in the United States can post, or (2) the enforcement of existing U.S. laws where the government seeks to hold U.S. persons liable for their online speech.
Although the government typically can regulate conduct without running afoul of the First Amendment, regulations that restrict or burden expression often do implicate free speech protections. In such circumstances, courts generally distinguish between laws that regulate speech on the basis of its content (i.e., the topic discussed or the message expressed) and those that do not, subjecting the former to more stringent review. A law that expressly restricts online communications or media promoting violence or terrorism is likely to be deemed a content-based restriction on speech; whereas a law that primarily regulates conduct could be subject to a less stringent standard of review, unless its application to speech turns on the message expressed. Whether such laws would survive First Amendment scrutiny depends on a number of factors.
Over the past 50 years, the Supreme Court has generally extended the First Amendment's free speech protections to speech that advocates violence in the abstract while allowing the government to restrict or punish speech that threatens or facilitates violence in a more specific or immediate way. The subtle distinctions that have developed over time are reflected in the categories of speech that the court has deemed unprotected, meaning that the government generally can prohibit speech in these areas because of its content. These include incitement to imminent lawless action, true threats, and speech integral to criminal conduct. Although judicial decisions have helped to define the scope of some of these categories, open questions remain as to how they apply in the context of online speech. For instance, legal scholars have questioned what it means for speech to incite "imminent" violence when posted to social media. They have also asked how threats should be perceived when made in the context of online forums where hyperbolic speech about violence is common.
The extent to which the government can regulate speech promoting violence or terrorism also depends on whether its law or action satisfies the applicable level of scrutiny that the Court has developed to evaluate measures that restrict or burden speech. In general, laws that regulate protected speech on political or ideological matters are subject to strict scrutiny, a test that requires the government to demonstrate that its law is narrowly tailored to achieve a compelling governmental interest. Nevertheless, in some cases, courts have concluded that the government's national security interests justify restrictions on protected speech, such as in 2010 when the Supreme Court upheld certain applications of a federal statute prohibiting providing material support to U.S.-designated foreign terrorist organizations.