Charlie Kirk's murder: What the First Amendment doesn't protect
In the wake of Charlie Kirk’s assassination, one would expect sympathy for him and his family. Calls for peace. Well wishes for his family. An overall desire for things to get better.
But that is not what happened.
Horrific comments filled the internet. Lies about Kirk. Calls that other people, including his wife, to be killed next. This development only compounds the despair. It tells us that the bloodlust was not isolated. The murder came with the support of a very vocal minority that fostered the online environment that incited Kirk’s killer.
Consider comments like this one by a policeman, which accused Kirk of being “openly racist” and, as a result, “ain’t really winning in the empathy department.” Or this one saying that Kirk “hated the LGBTQ community.” This musician said that more political violence will have to happen against conservatives to have “a better world.” Or this one that says “lets make more martyrs.” Stephen King lied about Kirk, saying he had openly advocated for stoning “gays,” which he later admitted was not true.
These employees act surprised when they get fired or suspended from their jobs. This has led these recently terminated people, or media personalities like Don Lemon, wrongly invoking “free speech.” The term is thrown about without any understanding of its limits.
It should be prefaced by saying that all First Amendment cases have to be evaluated on their individual merits. So, any individual example cannot be generalized within an op-ed. But there are general principles that do not seem to be understood.
First, the First Amendment only restricts the government from regulating speech. But this does not limit the consequences of speech, especially if one is privately employed. An employer likely does not wish to employ someone who advocates for violence or knowingly spreads lies.
Even if an employee is a government employee, the employee cannot go to social media to post offensive thoughts. If the government employer finds that the speech disrupts the efficient conduct of government operations, it can still fire the employee. Thus, for example, an employee who posts a confederate flag and calls for a “revolution” may be fired by a government employer.
Outside the employment context, the Supreme Court recently summarized the limits to free speech. The First Amendment permits restricting free speech if there is “incitement … directed at producing imminent lawless action.” The classic example, of course, is a KKK speech stating that “there might have to be some revengeance [sic] taken,” which was found to be incitement.
Another is defamation, which is “false statements of fact harming another’s reputation.” The key here is saying something that is provably false in order to damage another’s reputation. An example of defamation is falsely accusing someone of a crime.
Thus, when a conservative advocates for the firing, or other consequences, of someone who makes offensive statements, statements that spread lies, or statements that may incite others to commit crimes, the conservative is neither violating the legal principles of the First Amendment nor the spirit of the First Amendment. They are more accurately insisting that speech come with accountability — whether it be public rejection of their ideas or the termination of contractual relationships. Actual calls for further violence are not akin to canceling someone because they are pro-life or wear a MAGA hat. Blatant lies designed to injure the reputation of another are not akin to disagreement. This recent effort by conservatives is not akin to the cancel culture we have observed over the last decade or so.
In other contexts, this general framework could even be used by the government to regulate speech. For example, for organizations such as the Southern Poverty Law Center, which have for decades framed conservatives as hateful, white supremacists, racists, etc., they may be crossing the line into defamation. And, on at least one occasion, their “hate map” did incite violence. Kirk’s organization, Turning Point USA, too, was on its website, though it is unknown if there is a link between the two.
It is important for the government to stay out of the business of censorship. It should not regulate political opinions or even “hateful” thoughts. Indeed, the spirit of the First Amendment is to protect offensive speech. We must vigorously protect the opinions, even wrong or offensive ones, that are held against Kirk. But when speech crosses the line and calls for more violence, spreads lies, or is so offensive that it impacts those who work with an employee, that speech must be held accountable. A civilized society demands this.
Curtis Schube is the Executive Director for Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative, and restrained. He is formerly a constitutional and administrative law attorney.
