In the wake of conservative activist Charlie Kirk’s murder, a fierce First Amendment debate over the concept of “hate speech” has taken center stage across the nation.
Conservative lawmakers and influencers over the past week have pushed for scores of public employees, ranging from professors and emergency workers to a U.S. Secret Service agent, to be fired or otherwise punished after they posted negative comments about Kirk or his views.
Several Indiana teachers, university employees and public workers are being investigated, and in some cases, losing their jobs for comments made after Kirk’s assassination. This week, a Ball State employee was fired, and three teachers are no longer employed. Multiple state leaders are also promising to investigate and report instances of posts that cross a line.
The nationwide wave of targeted firings at one point even included over 40,000 alleged submissions to a website titled “Expose Charlie Murderers,” which has since been taken offline.
On Sept. 15, U.S. Attorney General Pam Bondi weighed in on the topic of hate speech during an episode of the Katie Miller podcast, a podcast hosted by the wife of White House Deputy Chief of Staff Stephen Miller.
In the episode, Bondi said “there is free speech, and there is hate speech,” and that the federal government “will absolutely target you, go after, if you are targeting anyone with hate speech.”
The comments received intense pushback, from both Democrats and Republicans as well as First Amendment experts.
What is hate speech, and is it protected by the First Amendment?
Hate speech, though it has no official legal definition, often refers to language that is meant to demean, vilify or incite hatred against a person or group.
Despite not being defined by law, “hate speech” has been a constant phrase seen in the courts since the country’s founding. And through many major legal precedents, the courts have been clear: Hate speech is protected by the First Amendment, with very narrow exceptions.
“It doesn’t matter in America’s First Amendment law whether something is hate speech or not,” said James Weinstein, a constitutional law expert at Arizona State University’s Sandra Day O’Connor College of Law.
Courts have found that whether something is hate speech is purely subjective, depending on the listeners’ biases, and therefore cannot be used as a neutral basis for law. As Supreme Court Justice John Marshall Harlan II said in Cohen v. California (1971), “one man’s vulgarity is another man’s lyric.”
In the 1989 Texas v. Johnson case, which affirmed citizens’ First Amendment rights to burn American flags, the Supreme Court stated that the “government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable.”
And in 2017, Justice Samuel Alito stated in Matal v. Tam that “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
What did Charlie Kirk say about hate speech?
Kirk himself affirmed the protections of hate speech, stating on X in May 2024 that, “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.”
What are the exceptions to free speech protections?
Very narrow categories of unprotected speech include:
If a statement falls within one of these categories, then it is not protected by the First Amendment. If it falls outside these categories, then the speech will almost always remain protected by the First Amendment.
A few specific exceptions to this list mostly relate to employment. Private employers have a lot of leeway when it comes to firing individuals for speech, especially when it violates an employer’s code of conduct or other internal policy.
What is the Pickering Connick test?
The law surrounding public university employees’ speech rights is murkier, as the schools receive federal tax dollars. This pushes the question of an employee’s speech rights into an area of the First Amendment called the “Pickering Connick test,” a two-part test which allows the courts to balance an employee’s free speech rights with that of an employer’s interest for a disruption-free workplace.
What are lawmakers and experts saying about Trump AG Pam Bondi’s comments?
Following Bondi’s comments to Miller, the attorney general received immediate pushback from lawmakers and First Amendment experts across the nation.
At Politico’s AI & Tech Summit in Washington D.C. Sept. 16, conservative U.S. Sen. Ted Cruz, R-Texas, defended hate speech as constitutionally protected speech, though he later advocated for those commenting negatively about Kirk to “face the consequences for celebrating murder.”
“The First Amendment absolutely protects speech,” Cruz said, Politico reported. “It absolutely protects hate speech. It protects vile speech. It protects horrible speech. What does that mean? It means you cannot be prosecuted for speech, even if it is evil and bigoted and wrong.”
Carolyn Iodice, director of the Foundation for Individual Rights and Expression’s Legislative and Policy, expressed concern over Bondi’s statements.
“The appalling murder of Charlie Kirk — a frequent campus speaker who was killed while engaging in a peaceful, public debate — was also an attack on free speech itself,” she said, in a statement to The Tennessean. “We need government officials to respond in this moment by doubling down on protecting free speech and encouraging people to process their political disagreements through open dialogue.
“It’s incredibly troubling that many officials are instead using their official powers to fuel cancellation campaigns and, in the case of the Attorney General, actually threatening to jail Americans for constitutionally protected speech.”
Following the pushback to her remarks, Bondi posted a lengthy statement on X stating that “hate speech that crosses the line into threats of violence is not protected by the First Amendment,” and affirmed that her office will prosecute such actions.
When asked by ABC reporter Jon Karl about Bondi’s comments, President Donald Trump said she’ll “probably go after people like you because you treat me so unfairly.”
“It’s hate. You have a lot of hate in your heart,” he said, before going on to assert that ABC paid him $16 million for a “form of hate speech,” referencing a recent defamation settlement between the network and Trump.
“In the past few days, we have seen the highest officials at the Justice Department make statements cheering or threatening First Amendment violations,” said Patrick Jaicomo, senior attorney at the Institute for Justice, a nonprofit public interest law firm. “This has included threats to prosecute printers for not printing posters, urging the firing of government employers for their speech, and a number of other concerning things.
“Although many statements have been quickly walked back, they represent either an ignorance of basic constitutional principles or a willingness to disregard them.”
The USA TODAY Network’s coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.
Have a story to tell? Reach Cate Charron by email at ccharron@indystar.com, on X at @CateCharron or Signal at @cate.charron.28. Reach Angele Latham by email at alatham@gannett.com, or follow her on Twitter at @angele_latham
First Amendment reporter Taylor Seely, at the Arizona Republic, contributed to this report.
This article originally appeared on Indianapolis Star: Is hate speech protected by the First Amendment? What to know after Charlie Kirk’s killing
Reporting by Cate Charron and Angele Latham, Indianapolis Star / Indianapolis Star
USA TODAY Network via Reuters Connect
