In the wake of the heartbreaking assassination of conservative commentator Charlie Kirk, there seems to be a troubling clampdown on free speech that crosses ideological lines.
People might debate the appropriateness of the remarks surrounding Kirk’s death and the legacy he left behind. But the main issue, I think, really revolves around First Amendment protections.
The First Amendment exists to guard individuals against government actions that could penalize them for expressing unpopular opinions. From this viewpoint, the backlash triggered by Kirk’s death poses a significant threat to everyone.
Posters on social media expressing opinions about Kirk include military personnel, a firefighter in New Orleans, a private employee at the Pentagon, a comic book writer, and educators in various states like Florida and Tennessee. The list goes on, encompassing a communication coordinator for the Carolina Panthers and a junior strategist at Nasdaq, among others.
Many of these discussions have primarily taken place online.
Even some elected officials are indicating that speaking out on this subject could lead to repercussions. Florida Governor Ron DeSantis and Education Commissioner Anastasios Camoutes have stated they will scrutinize teachers involved in what they termed “sleazy” actions.
Additionally, Secretary of State Christopher Landau expressed his frustration over comments made on social media regarding Kirk’s death, emphasizing that actions would be taken against those making negative remarks.
Defense Secretary Pete Hegses remarked that the military is actively identifying personnel who appear to endorse or tolerate the act of violence against Kirk.
In a rather cold twist, former President Trump directed blame at the “radical left,” despite lacking any evidence. Stephen Miller, a former White House advisor, declared a commitment to using all available government resources to address perceived threats linked to Kirk’s murder.
This situation poses a concerning challenge to free speech. While the application of the First Amendment can vary, retaliatory actions regarding discussions of Kirk’s death appear to contradict its intent.
The First Amendment clearly protects citizens from governmental overreach concerning free expression. Attempts to silence speech and impose penalties for future comments raise significant legal questions, feeling quite suspect in nature.
Entities like Nasdaq and MSNBC may not be directly constricted by the First Amendment. However, Trump has continually targeted media outlets for content he disapproves of, leading to millions of dollars in settlements with networks for perceived injustices.
While individuals dismissed from places like MSNBC cannot directly sue for First Amendment violations, the real link between these firings and government threats remains clear.
Civil servants facing disciplinary measures for their comments still retain their rights under the First Amendment, as confirmed by the Supreme Court’s ruling in a notable case regarding free speech for public employees.
In a 1968 Supreme Court decision, it was stated that public employees are entitled to comment on public issues without losing their rights, unless the government can prove that their speech negatively impacts their job performance.
But the motivations behind the recent punitive actions seem politically inclined rather than based on job efficiency. Attorney General Pam Bondi noted that “there’s freedom of speech, and then there’s hate speech,” implying limits should exist, especially in light of Kirk’s tragedy.
This perspective on “hate speech,” however, misinterprets First Amendment protections. Even offensive speech typically can’t be criminalized, covering a range of disparaging comments about various groups.
Of course, exceptions exist—such as incitement to violence—but generally speaking, so-called hate speech isn’t something the government can target within our legal framework. The real question may be whether those in authority will continue to enforce these standards.
Kimberly Wale is a law professor at the University of Baltimore and has authored several books discussing constitutional rights, voting, and legal thinking.
