In the aftermath of Charlie Kirk’s assassination during a university event in Utah last week, the nation has become embroiled in a heated debate surrounding free speech, particularly regarding how individuals express their opinions in a polarized political atmosphere.
Kirk, a prominent conservative activist known for his role with Turning Point USA and his vocal podcast, had been a steadfast supporter of First Amendment rights.
As he stated last year on X, “Hate speech does not exist legally in America. There’s ugly speech. There’s gross speech. There’s evil speech. And ALL of it is protected by the First Amendment.”
However, following Kirk’s death, some of his critics’ comments have caught the attention of government officials, who are now calling for stricter regulations regarding what can be said in relation to his assassination.
In response to these incidents, Pentagon officials announced measures to “address” any federal employees who mocked or celebrated Kirk’s death.
The State Department also indicated it would consider revoking visas for those who post celebratory comments about the assassination.
On the same day, Vice President JD Vance hosted Kirk’s podcast and urged listeners to contact the employers of individuals who celebrate Kirk’s murder.
In a related statement, Attorney General Pam Bondi expressed her belief that posts deemed as “hate speech” should be “shut down.”
Bondi indicated that the Trump administration would actively pursue individuals who engage in hate speech, distinguishing between lawful free speech and speech that crosses into hate speech as a criminal act.
During an interview, she clarified, “There’s free speech, and then there’s hate speech. We will absolutely target you, go after you, if you are targeting anyone with hate speech.”
These comments raise concerns among First Amendment advocates, as the Supreme Court has historically protected most speech, including hate speech, under the First Amendment.
The Justice Department referred inquiries regarding the administration’s stance on celebrations of Kirk’s assassination, reiterating Bondi’s points.
White House spokeswoman Abigail Jackson pushed back against accusations of censorship, asserting that the administration’s actions would solely target those committing criminal acts.
In a surprising move, ABC announced that “Jimmy Kimmel Live!” would be “indefinitely” preempted following backlash over Kimmel’s comments linking Kirk’s alleged killer to Trump supporters.
This decision garnered praise from Federal Communications Commission Chair Brendan Carr, who had previously suggested the network should take measures against Kimmel’s remarks.
Carr’s comments were echoed by station owners Nexstar and Sinclair, who chose to remove the show from their broadcasts indefinitely.
On Truth Social, President Donald Trump celebrated ABC’s decision, stating, “Finally having the courage to do what had to be done,” while encouraging others to take similar actions against Kimmel’s peers at NBC.
Commissioner Anna Gomez, the lone Democrat at the FCC, criticized the decision to preempt the show, suggesting it established a dangerous precedent for free speech suppression.
Gomez stated, “This administration is increasingly using the weight of government power to suppress lawful expression, not because it glorifies violence or breaks the law, but because it challenges those in power and reflects views they oppose.”
Further, she remarked, “The FCC does not have the authority, the ability, or the constitutional right to police content or punish broadcasters for speech the government dislikes. Free speech is the foundation of our democracy…”
Senator Elizabeth Warren echoed Gomez’s sentiments, condemning the government’s apparent attempt to influence which viewpoints are represented in media.
Warren commented, “When the head of the FCC is talking openly about taking away the broadcast license, then that is the government trying to exercise censorship.
It’s not a question of whether you agree with Mr. Kimmel or disagree with Mr. Kimmel. The point is one of the government not coming in and making decisions about whose speech gets heard.”
The current situation underscores the complexities surrounding the First Amendment, particularly in cases involving hate speech.
The First Amendment generally protects most forms of speech, including hate speech, with exceptions made for direct threats or incitement to violence.
Legal experts criticized Bondi’s explicit comments on “hate speech,” especially given her role as the country’s chief prosecutor.
Adam Goldstein, vice president of strategic initiatives at the Foundation for Individual Rights and Expression, voiced concerns over public discourse’s implications, noting, “I especially don’t want to see an attorney in charge of the Justice Department saying that.”
Legal experts, including Jenin Younes, pointed out a significant contradiction in public officials’ stance on hate speech, given their previous criticisms of cancel culture and free speech.
Younes remarked, “These are all the same people who were railing against cancel culture and the idea of hate speech just a few years ago, when it was the left doing it.”
University of Chicago law professor Genevieve Lakier warned against the use of governmental definitions of hate speech, asserting there is no neutral definition because it can be manipulated to target political opponents.
Lakier noted, “The worry is that lawmakers will just define hate speech to mean anything the opposite party says… there’s no definition of hate speech because the whole point is there’s no neutral definition of hate speech.”
She explained that most comments regarding someone’s death, even if deemed offensive, would not qualify as incitement under current legal standards.
Eugene Volokh, a First Amendment legal scholar, affirmed that the government generally cannot legally pursue individuals making insensitive comments about Kirk’s assassination, stating, “It may be in bad taste… but it is protected by the First Amendment.”
Reflecting on Bondi’s remarks, he acknowledged that they could confuse citizens regarding what constitutes protected speech.
Volokh elaborated, “I think they may also kind of send a message that we are going to try to find a way of punishing this speech.”
In discussing the ramifications of the Office Depot incident, where an employee declined to print flyers for a Kirk vigil, Bondi indicated the Justice Department would investigate businesses refusing service based on content.
Volokh explained the absence of federal laws preventing copy shops from deciding based on customers’ content requests, emphasizing the absence of legal repercussions.
A Justice Department spokesperson indicated that Bondi’s comments specifically referred to the Office Depot incident.
Debate now surrounds whether the federal government can revoke visas or deport non-citizens over their views on Kirk, a topic considered “unsettled” among legal experts.
Volokh pointed to the executive’s expansive power over immigration but acknowledged that the First Amendment places constraints on that power.
Younes further supported that viewpoint, stating that while executive immigration power is significant, it faces limitations from First Amendment rights.
The implications of such government actions have raised alarms, particularly among First Amendment advocates who see potential for overreach.
Private companies maintain the right to fire employees based on their speech, though certain states offer additional legal protections for employees.
Legally, if a private employer terminates an employee for their remarks, it may not constitute a violation of First Amendment rights.
Experts warn, however, that government influence could coerce companies into taking adverse employment actions against individuals who express dissenting opinions.
Clay Calvert, a senior fellow at the American Enterprise Institute, explained that while government officials can voice opinions about private actions, they must avoid coercive threats.
Volokh illustrated the distinction regarding Vance’s actions compared to official statements that could be interpreted as coercive.
However, the line becomes blurred when public officials encourage private companies to take action against employees bereft of their views.
Legal scholars like Goldstein emphasized the gravity of such government-induced non-neutral actions.
He asserted, “What a weird way to react in memory of Charlie Kirk, who was known for listening to people and disagreeing with them, and moving on.”
The free speech implications are more complex for government employees, who have a mix of protections that vary based on the context and subject matter of their expressions.
For instance, the Pentagon’s recent actions against service members and civilian workers who made negative comments about Kirk demonstrate the precarious balance of free speech rights within government settings.
Defense Secretary Pete Hegseth labeled celebrations of Kirk’s death as “unacceptable,” causing multiple officers to face disciplinary actions related to their statements.
Branches of state government have also witnessed similar responses.
Oklahoma’s education top official declared that teachers expressing support for Kirk’s killing would face job bans, echoing sentiments from various state officials.
Moreover, teachers in several states have faced investigations or administrative leave for their comments surrounding Kirk’s assassination.
While government employees possess some free speech rights, these rights are not absolute, particularly when their comments intersect with the performance of their job duties.
Calvert explained, “Government employees do have First Amendment rights of freedom of speech; however, those rights are not unlimited and may be restricted if the employee’s speech interferes with the ability of the employer to effectively deliver services to the public.”
The factors that shape these assessments vary, based on whether the worker expressed views in their personal capacity and whether those comments involve public concerns.
Volokh added that military personnel face heightened scrutiny regarding their speech due to discipline and cohesion requirements, which can lead to further restrictions.
Overall, the rift created by Kirk’s assassination not only reveals the profound divide in American society but also emphasizes the ongoing challenges surrounding free speech amidst rising tensions in political discourse.
As individuals across the spectrum weigh in on the matter, the implications for constitutional rights continue to deepen, highlighting the necessity for ongoing dialogue surrounding free expression and the limits of its application.
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