Since the tragic assassination of conservative political commentator Charlie Kirk, there has been a disturbing crackdown on free speech that stretches across ideological divides.
People can debate whether what is being said about Kirk’s death and his legacy is okay or not okay. But believe it or not, that is mostly beside the point when it comes to First Amendment protections.
The First Amendment is about keeping the government out of the business of retaliating against people for sharing opinions that it does not like. Considered in that light, the anti-speech trend sparked by Kirk’s death is extraordinarily dangerous for everyone.
The growing catalogue of people targeted for their post-assassination comments about Kirk includes members of the military; a New Orleans firefighter; civilian Pentagon employees; a comic book writer; educators in Florida, Mississippi, Tennessee and Texas; a Secret Service employee; a communications coordinator for the Carolina Panthers NFL team; a woman who worked as a junior strategist at Nasdaq; and a growing list of journalists that includes MSNBC analyst Matthew Dowd and Washington Post reporter Karen Attiah.
Most of the opinions that gave rise to this slew of firings and workplace rebukes were posted on social media.
Numerous elected officials have also signaled that past and future speech criticizing Kirk will be punished. Florida Gov. Ron DeSantis’s (R) education commissioner Anastasios Kamoutsas sent a memo to school district superintendents stating that “I will be conducting an investigation of every educator who engages in this vile, sanctionable behavior” and warning them to “Govern yourselves accordingly.”
Deputy Secretary of State Christopher Landau posted on X that “I have been disgusted to see some on social media praising, rationalizing, or making light of the event, and have directed our consular officials to undertake appropriate action.” Landau’s boss, Secretary of State Marco Rubio, has also threatened to revoke the visas of anyone who makes unfavorable remarks about Kirk.
Defense Secretary Pete Hegseth has ordered staff “to find and identify military members, and any individual associated with the Pentagon, who have mocked or appeared to condone Charlie Kirk’s murder.”
Perhaps most chillingly, President Trump himself pointed the finger at the “radical left” for Kirk’s murder, without evidence. White House Deputy Chief of Staff for Policy and Homeland Security Advisor Stephen Miller stated, “With God as my witness, we are going to use every resource we have at the Department of Justice, Homeland Security and throughout this government to identify, disrupt, dismantle and destroy these networks and make America safe again for the American people. It will happen, and we will do it in Charlie’s name.”
Miller spoke these words on what was once Kirk’s podcast, in conversation with Vice President JD Vance, who chimed in to say, “When you see someone celebrating Charlie’s murder, call them out. And, hell, call their employer.”
This is a frightening, even terrifying, assault on the First Amendment. Although there are gradations as to how the First Amendment applies to particular individuals, across-the-board the retaliation against Kirk-related speech seems antithetical to the Constitution itself.
The First Amendment protects against governmental restrictions on “the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Supreme Court precedent is clear, moreover, that the targeting of speech for its content, and any attempts to impose prior restraints on future speech for its content, are especially suspect — that is, likely illegal.
Entities like MSNBC and Nasdaq are not bound by the First Amendment. Since taking office in January, however, Trump has targeted numerous media companies for alleged defamation around speech he did not like, including CBS News for supposedly editing an interview with his rival for the presidency, former Vice President Kamala Harris, and ABC News (for whom I am a legal contributor) over George Stephanopolous’s characterization of the jury verdict against him in the sex abuse lawsuit brought by E. Jean Carroll.
Both networks settled for millions of dollars, allowing Trump to send an unmistakable message to other media outlets that crossing Trump on air — even inadvertently — could be costly. So although the people fired by the likes of MSNBC cannot sue those private companies for violations of the First Amendment, the link between their firings over disfavored speech and the threat of governmental vengeance against their former employers is unmistakable.
Some of the people being punished for their views about Kirk are public employees. But their public employment does not mean they forfeit their First Amendment rights. The Supreme Court has held that public employees can speak out against the government if they do so as private citizens rather than their official governmental capacities — even if their jobs influence their opinions.
In Pickering v. Board of Education in 1968, the court held that a government employee has an interest, “as a citizen, in commenting upon matters of public concern” that is protected by the First Amendment. To get around that protection, the government must show that “the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees” outweighs it.
Yet it is political retaliation — not efficiency — that appears to be the animating force behind the recent firings for having posted about Kirk’s death. On Monday, Attorney General Pam Bondi told an interviewer: “There’s free speech and then there’s hate speech, and there is no place, especially now, especially after what happened to Charlie, in our society . . . We will absolutely target you, go after you, if you are targeting anyone with hate speech.”
But Bondi is wrong to suggest that so-called “hate speech” gets no First Amendment protections. Speech that is offensive, even vile, cannot be lawfully punished by the government under the First Amendment. This includes speech that is racist, misogynistic, anti-gay, xenophobic, ageist, ablest, anti-Semitic, anti-Christian, anti-Muslim, or that involves cruel or malicious slurs against a whole variety of people and groups.
There are exceptions, including statements that are both intended and likely to provoke imminent lawlessness. Police can also intervene in face-to-face interactions that could lead to violence, or to address serious threats to commit violence even if the speaker never intended to actually carry them out. Obscenity and defamation — that is, lies that harm others’ reputations — can also trigger legal liability, despite the First Amendment’s protections for free speech.
But hate speech itself? No, General Bondi. That cannot be “targeted” by the government under our system of laws. The Constitution forbids it. The question is whether those in your circle care anymore.
Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer — and Why.”
