Ask almost anyone what the First Amendment guarantees, and they’ll answer, simply: “free speech.” Ask a pundit or professor, and they might add, as the legal scholar Noah Feldman recently did in a conversation with Katie Couric, that “you have free speech even when you’re saying the most unpopular things. Free speech really is freedom of speech for the ideas that we hate.” 

This framing has been repeated endlessly over the past few months to mount what are ultimately weak defenses of detained Palestinian activists like Mahmoud Khalil. Senator Chuck Schumer, for example, began his statement on Khalil’s arrest by noting, “I abhor many of the opinions and policies that Mahmoud Khalil holds and supports.” Only with that proviso could he assert that the Trump administration was likely “violating the First Amendment protections we all enjoy.” In a New York Times op-ed, the conservative columnist David French established his own disagreements with Khalil’s “anti-Israel activism” before allowing that it was covered by the First Amendment. Of course, French and the others are correct, but by emphasizing the individual right to objectionable expression, we miss the First Amendment’s more expansive assurances of democratic participation and governmental accountability. 

In full, the amendment stipulates that: 

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.

The amendment makes clear that rights are held by “the people,” who must be able to “assemble” and “petition” — both actions that cannot be taken by one individual alone. And the emphasis on what Congress shall not do represents a real restriction on the government, not just the accordance of privileges to the people. In other words, the First Amendment guarantees the ability to participate in politics; it is intended to secure a direct channel of communication to the government.

Our popular conception of the First Amendment has been shaped by a series of cases that have narrowed the scope of its protections. In 1917, the socialists Charles Schenck and Elizabeth Baer were arrested for distributing anti-draft leaflets. Schenck and Baer argued that this amounted to a violation of their First Amendment rights; two years later, the Supreme Court found, unanimously, that it had not. In his opinion, Justice Oliver Wendell Holmes Jr. made the now infamous analogy to shouting “fire” in a crowded theater. His point was that free speech can be curtailed by the government if there is “a clear and present danger” that a speech act “will bring about the substantive evils that Congress has a right to prevent” — and that the assessment of such dangers can change in times of war. In so ruling, he prioritized the government’s right to conscript its citizens in the name of national security over the public’s right to resist such compulsory service. In 1927, the court heard a case brought by the Communist Labor Party organizer Anita Whitney against the state of California. Whitney had been convicted under the state’s “criminal syndicalism” law, which barred membership in groups advocating for “unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.” Though Whitney had not been accused of committing violent acts, and though she insisted that she had no intention of doing so, a lower court’s jury had found that her membership in the party was enough to constitute an intent to promote violence. The Supreme Court upheld her conviction.

The court further eroded assembly rights in the name of public safety in Jones v. North Carolina Prisoners’ Labor Union, decided in 1977. In that case, the Supreme Court held that a North Carolina prison’s policy forbidding union recruitment among inmates — effectively barring both the union and union activity itself — did not violate the First Amendment. A seven-justice majority agreed that the prisoners’ labor group meetings, and their demands to be paid the $1-a-day wage they were legally entitled to, posed a potential threat to the “order and security” of the prison that outweighed the constitutional right to take collective political action. 

Meanwhile, jurisprudence on individual speech rights has proceeded on a piecemeal basis, producing a convoluted and often contradictory body of law. In 1951, for example, the Supreme Court sided with police against a white college student who, in a speech, had called on a mixed-race crowd to rise up and fight for equal rights. The court determined that the student could have incited a riot, and thus posed, as Holmes Jr. had written 32 years earlier, a “clear and present danger” to public order. But the Supreme Court saw no such risk eighteen years later, when a KKK leader called for the forced expulsion of black and Jewish Americans from the United States, and threatened “revengeance” if the government continued to “suppress the white, Caucasian race.” His criminal conviction — under an Ohio state law similar to the one that had been used against Anita Whitney fifty years earlier — was overturned. The court reasoned that the government could not limit speech that advocated for use of force, unless that force was likely to occur. Evidently, college students seemed more likely to incite an imminent “evil” than the white supremacist calling for ethnic cleansing. 

Today, even the hollow liberal definition of free speech (“for the ideas that we hate”) is under threat. Under the guise of national security, the Trump administration has argued that expressions of pro-Palestine viewpoints, and protests of the genocide in Gaza, pose a threat to the foreign policy of the United States. In March, Trump said of the arrests and detainments of Khalil and others: “They’re troublemakers. They’re agitators. They don’t love our country. We ought to get them the hell out.” Secretary of State Marco Rubio wrote in a memo to the Department of Homeland Security that “the activities and presence of these aliens in the United States would have potentially serious adverse foreign policy consequences and would compromise a compelling U.S. foreign policy interest.” Limp defenses of speech we “abhor” will be insufficient to counter these attacks on our rights to protest.

When we invoke First Amendment protections, we should contextualize the freedom of speech within the amendment’s broader guarantees — alongside the freedom of association, that rare legal recognition of collective power and its importance in a functioning democracy. The freedoms enshrined in the First Amendment mean so much more outside of the confines of abstracted legal debates about what kind of speech, from what kind of speaker, is legally protected. We can and should assemble, we can and should take collective action, and we should define our right to do so on our terms, in service of our most powerful formation: the collective.