I am quoted in a Miami Herald article (may be paywalled) on the wave of actual and threatened firings of people over online comments about Charlie Kirk. The First Amendment ignorance and stupidity over this burns. And there is so much that it is impossible to keep up.
So let me try a Statement of Random First Amendment principles:
• There is no hate speech exception to the First Amendment. Conservatives–including our Florida-Woman Attorney General--who say “There’s free speech and then there’s hate speech”–sound as stupid as the liberals who were saying it fives years ago. Kirk himself said ugly, gross, and evil speech must be protected at least where his own ugly, gross, and evil speech was concerned.
• “Targeting people with hate speech” does not make it more coherent as First Amendment principle. “Targeting” might suggest hate speech that threatens or harasses; that may be unprotected because it is a threat or harassment, not because it is hateful. But you cannot threaten a dead person (anymore than you can defame a dead person, Sen. Lee). And stories I have seen have not involved threats or harassment of other people (I think a few people have said stuff about Kirk’s widow). So Bondi seems to mean hate speech about one specific person (“Charlie Kirk was a bad person”); however hateful one may find it, this is protected opinion on a matter of public concern.
• Incitement is extremely narrow. It basically means the metaphorical equivalent of standing in front of a pitchfork-wielding crowd outside a poorly guarded jail and shouting “let’s get that guy in there right now.” “Celebrating” Kirk’s death–praising the shooter, saying Kirk had it coming, even stating (in the abstract) that future similar acts against unnamed others would be a good thing–does not come close to that line.
• True threats are extremely narrow. Saying anything about Kirk and his death–even celebrating it–does not “threaten” unnamed conservatives or Republicans.
• “Civic discourse” and “debate” do not exhaust the limits of the First Amendment. In fact, I question whether they occupy the core. One man’s vulgarity is another man’s lyric. Debate on public issues should be uninhibited, robust, and wide-open, and may well include vehement, caustic, and sometimes unpleasantly sharp attacks. The First Amendment protects Donald Trump’s online rantings, which are neither civil nor debate; it must do the same for the online statements of a random South Florida school teacher.
This is actually an interesting sleight-of-hand from the right. They pushed civil discourse and debate to protect Kirk’s “debate me” schtick and to stop campus hecklers from protesting objectionable right-wing speakers; they made listening to offensive speakers and perhaps engaging them into the First Amendment’s core. They now are using that core to restrict speech they regard as insufficiently civil and willing to debate, speech that simply shouts mean things about people into the ether.
The Herald story quotes my congressperson calling out a local government member for a post (content not discussed–see below) about Kirk; she says the local official did not understand the First Amendment and the country’s founding principles. How does someone who spoke on a matter of public concern not understand (and even act on First Amendment principles? If the central First Amendment principle is “listen to and debate Charlie Kirk” such that Kirk epitomized the First Amendment; therefore anything opposing or criticizing Kirk and the stuff he did opposes it. As I said, sleight-of-hand.
• We do not know the full scope of Masterpiece and 303 Creative. But questions of “is a copy/print shop an expressive business that could refuse to make fliers” and “whose speech is the flier the shop is asked to print” arose in discussions of where the rules in those cases must lead. But we never get to that question with respect to a copy shop and fliers about Kirk. At least federal law does not prohibit ideological or political discrimination in places of public accommodation, regardless of the expressive or non-expressive nature of the business. In other words, the federal government cannot punish the person for refusing to make the fliers not because he enjoys a First Amendment right to refuse (he might–we never reach the issue) but because refusing violates no federal law.
• I told the Herald that I expect a lot of litigation and that I expect plaintiffs to win many of these cases. The article juxtaposes my statement with comments from Clay Calvert (formerly at UF), who suggested the government may be be able to show the sort of interference with effective government that Pickering requires. It frames us as disagreeing, but I am not sure we do.
In discussing this in the abstract (as opposed to specific cases), the question becomes what we see as the paradigm. It could be “I’m glad Kirk is dead because he deserved to die;” it could be “Kirk was a bad guy who believed bad things;” or it could be “here are some actual things Kirk said and believed and with which I disagree.” I see numbers two or three as the paradigms–and plaintiffs should win most such cases. They speak as citizens, offering opinions on matters of public concern based on true things in the public record. If that sufficiently disrupts the workplace, so would criticizing any national political official. As for number one, I guess it depends on whether Rankin v. McPherson (sheriff’s employee says, following attempted assassination of Ronald Reagan, “if they go for him again, I hope they get him”) remains good law and how much force it retains.
• The media has failed in covering the Kirk assassination by not quoting or describing Kirk’s actual views or statements, failing back on vague modifiers. The media continues to fail in covering this piece of the fallout by not quoting or describing the actual things that targeted people have said about Kirk, falling back on vague modifiers such as “celebrating.” If you want to know whether the government will get away with firing someone, you must say what the person actually said.
• The reporter did not include one telling part of our exchange. She asked whether I was surprised at the wave of censorship in South Florida, given that Florida is a libertarian place. Of course not, because most Republican and right-wing officials and commentators (here and elsewhere) rallied behind “free speech principles” in the name of protecting speech and speakers they liked, with no intention of adhering to those principles with respect to speakers they do not like. They were and remain “free speech opportunists.” (To be fair, most people are). Kirk’s murder provides the first large-scale opportunity they have had to really crack down on speakers and speech thewy do not like. Ironically, they purport to do so in the name of free speech (see above) while honoring a person who himself insisted he was not a free-speech opportunist.
I expect to add to this list because more of this is coming weeks and months.
Posted by Howard Wasserman on September 16, 2025 at 07:28 AM