A Guide to the Free Speech Issues Since the Kirk Assassination

Jawboning, hate speech, and more: explained.

On his first day back in office, President Trump signed an executive order that said the Biden administration had “trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”

“Government censorship of speech is intolerable in a free society,” Trump declared, making it “the policy of the United States” that “no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.”

“I have stopped all government censorship and brought back free speech in America,” Trump bragged during his March address to Congress. When Vice President JD Vance visited Germany in February and expressed fear that free speech was “in retreat” across Europe, he pledged: “In Washington, there is a new sheriff in town, and under Donald Trump’s leadership, we may disagree with your views, but we will fight to defend your right to offer them in the public square, agree or disagree.”

Yesterday, Federal Communications Commission (FCC) chairman Brendan Carr took issue with comments ABC late-night host Jimmy Kimmel made in the public square, about reactions to the killing of Charlie Kirk. Appearing on a right-wing podcast, Carr threatened reprisal. “There’s actions that we can take on licensed broadcasters,” Carr said, referring to the affiliate stations that carry ABC programming, “and frankly, I think that it’s really sort of past time that a lot of these licensed broadcasters themselves push back on Comcast and Disney and say, listen, ‘We are going to preempt, we are not gonna run Kimmel anymore until you straighten this out because we, the licensed broadcaster, are running the possibility of fines or license revocation from the FCC if we continue to run content that ends up being a pattern of news distortion.”

“When you see stuff like this, I mean, look, we can do this the easy way or the hard way,” Carr added. “These companies can find ways to change conduct, to take action frankly on Kimmel or, you know, there’s gonna be additional work for the FCC ahead.”

Within a few hours, Sinclair Broadcast Group and Nexstar Media Group — the two largest owners of ABC affiliates, the “licensed broadcasters” Carr was talking about — announced plans to preempt Kimmel’s show on their stations for the foreseeable future. Soon after that, ABC announced that Kimmel would be indefinitely suspended. (Nextar, it should be noted, is currently seeking FCC approval for its merger with Tegna. Disney, which owns ABC, also needs the Trump administration to sign off on its deal to acquire the NFL Network.)

President Trump, who called for Kimmel to be fired as recently as July, exulted on Truth Social: “Congratulations to ABC for finally having the courage to do what had to be done.” Carr, meanwhile, celebrated by sending this GIF to a CNN reporter:

In case you’re wondering, here’s what Kimmel said that sparked the backlash:

“We hit some new lows over the weekend, with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it.”

For what it’s worth, having made clear earlier this week how I feel about left-wing misinformation about Kirk’s killing, I actually think there’s two ways to interpret Kimmel’s comments.

Interpretation #1:

“We hit some new lows over the weekend, with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them [even though we know he was one of them] and doing everything they can to score political points from it.”

Interpretation #2:

“We hit some new lows over the weekend, with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them [in a rush to blame the other party before the facts were known] and doing everything they can to score political points from it.”

Interpretation #1 would be untrue, because it would be making a claim about the shooter that would have lacked any evidence, as I wrote on Tuesday. But Interpretation #2 doesn’t necessarily take an opinion on the shooter’s ideology; it’s merely making the true statement that the right moved quickly to blame the left for the assassination.

According to Deadline, Kimmel was planning to clarify his comments on his show last night, and basically say that Interpretation #2 was what he meant. ABC declined to give him that opportunity — reportedly out of fear of the Trump administration. Two sources told Rolling Stone that multiple ABC executives “felt that Kimmel had not actually said anything over the line” but that “the threat of Trump administration retaliation loomed” over their decision.

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Kimmel’s suspension (and the FCC’s role in it) isn’t the first free-speech issue to come up in the aftermath of Kirk’s death.

Because of that, I thought it might be helpful to give a quick primer on some of the free-speech concepts you might have heard mentioned in the last few days, to give you an idea of where different threats by the Trump administration (and actions by other employers) fit into First Amendment case law.

Think of this as a glossary that can help you navigate these issues, so when you see one of these words invoked — or see something that you think might fit under one of these definitions — you’ll have a better idea of the legal footing. Here goes:

Jawboning. We’ll start with the concept most relevant to Kimmel’s suspension. The First Amendment, of course, generally prohibits the U.S. government from taking direct action against free speech. But what if a government official uses their own speech as a way to more subtly (or not-so-subtly) pressure a private actor to do something, without taking formal government action?

That’s “jawboning,” and, no, it does not provide a get-out-of-the-First-Amendment-free card to government officials. In fact, the Supreme Court ruled on this just last year, in a case called NRA v. Vullo. In the case, the National Rifle Association sued a New York state official, alleging that she tried to pressure banks not to provide services to the NRA.

The Supreme Court ruled 9-0 in favor of the NRA. “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors,” Justice Sonia Sotomayor wrote for the unanimous court.

The appeals court that ruled in the case used a four-part test to decide whether an action constituted illegal jawboning: “(1) word choice and tone; (2) the existence of regulatory authority; (3) whether the speech was perceived as a threat; and, perhaps most importantly, (4) whether the speech refers to adverse consequences.” Sotomayor did not explicitly endorse the test, though she did refer to it a “useful, though nonexhaustive, guide.”

The court also took up a separate jawboning case last year, stemming from the Biden-era actions that Trump referred to in his executive order, urging social media platforms to take down Covid- and election-related misinformation. In that dispute, Murthy v. Missouri, the court didn’t make a judgement on the substance of the case, because the justices ruled 6-3 that the plaintiffs (a group of Republican-led states) lacked the standing to sue. So don’t hold your breath for a Gavin Newsom lawsuit against ABC.

Hate speech. Earlier this week, Attorney General Pam Bondi appeared on a podcast and threatened to prosecute people spreading “hate speech” in light of Kirk’s assassination. “There’s free speech and then there’s hate speech,” Bondi said, “and there is no place [for hate speech] especially now, especially after what happened to Charlie, in our society.”

Bondi added: “We will absolutely target you, go after you if you are targeting anyone with hate speech, anything. And that’s across the aisle.”

The First Amendment is not absolute, and the Supreme Court has repeatedly recognized certain exceptions to it. However, “hate speech” is not one of them: there is no such legal category in the United States, and a string of Supreme Court cases has rejected the idea of a hate-speech exception to the First Amendment.

“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful,” Justice Samuel Alito wrote in the 2017 case Matal v. Tam, once again for a unanimous court. “But the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Instead of ruling that “there’s free speech and then there’s hate speech,” as Bondi put it, the Supreme Court has said repeatedly that they are, in fact, one and the same.

After backlash from both parties, the Justice Department quickly backpedaled: “Yes, of course hate speech is covered by the First Amendment, and everybody thinks that,” Deputy Attorney General Todd Blanche said on CNN.

Bondi clarified on X that “Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment. It’s a crime. For far too long, we’ve watched the radical left normalize threats, call for assassinations, and cheer on political violence. That era is over.”

However, that’s not usually what people mean when they say “hate speech,” which refers broadly to speech that’s pejorative against certain groups. The sort of violent speech that Bondi switched to talking about is closer to the concepts of true threats or incitement, which are established exceptions to the First Amendment.

Still, prosecutors have to meet a high bar to charge someone along these lines. In Brandenburg v. Ohio in 1969, the Supreme Court classified incitement as speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In Virginia v. Black in 2003, the court defined true threats as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

If something is not deemed to be a “serious expression” of intent, or isn’t “likely” to incite violence, it will be hard to secure a conviction. Comments that merely “cheer on political violence,” as Bondi put it, are not likely to meet that bar.

Compelled speech. Here’s another Bondi threat from this week. Speaking on Fox News, the Attorney General said that her subordinates were investigating an Office Depot employee in Michigan who refused to print flyers for a vigil honoring Kirk.

“Businesses cannot discriminate,” Bondi said. “If you wanna go in and print posters with Charlie’s pictures on them for a vigil, you have to let them do that. We can prosecute you for that.”

But the Supreme Court has suggested otherwise, in a string of cases prohibiting “compelled speech,” speech that the government forces a private actor to make. Most recently, in 2023, the court ruled 6-3 in 303 Creative LLC v. Elenis that Colorado couldn’t compel a website designer to create a website for a same-sex wedding.

“Taken seriously, [Colorado’s argument] would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty,” Justice Neil Gorsuch wrote, adding: “As our precedents recognize, the First Amendment tolerates none of that.”

State action doctrine. The government might not be able to prosecute the Office Depot worker mentioned above, but what if Office Depot wants to fire them, which they did? Or the other private companies — from American Airlines to the Carolina Panthers — that have fired employees because of comments made about Kirk?

For the most part, the First Amendment provides these employees no protection. Remember the words of the amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Emphasis mine.) The First Amendment is about suppression of speech by the government, not anyone else.

In law, this is known as the “state action doctrine,” the idea that the First Amendment only applies to state, not private, actors. (There are some borderline cases, like government contractors or other companies that carry out state actions, though none of them apply here.)

However, there have also been firings since Kirk’s killing by public universities, like Clemson in South Carolina. These are state actors, so those firings get a little trickier. The Supreme Court has ruled that First Amendment protections apply when a government employee is speaking on a “matter of public concern,” but not necessarily if they are speaking as part of their “professional responsibilities,” so those are the relevant legal considerations in those cases.

Free speech for non-citizens. Finally, Secretary of State Marco Rubio has threatened to revoke the visas of non-citizens who are celebrating Kirk’s assassination.

“We are not in the business of inviting people to visit our country who are going to be involved in negative and destructive behavior,” Rubio said.

In Bridges v. Wixon in 1945, the Supreme Court ruled that “once an alien lawfully enters and resides in this country, he becomes invested with the rights guaranteed by the Constitution to all people within our borders,” including freedom of speech, although the court has also allowed speech-related deportations and visa denials in other cases.

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I talk a lot about partisan hypocrisy in this newsletter, and this is certainly an area where we’ve seen a lot of flip-flopping.

Not so long ago, it was the Biden administration being accused of jawboning; a Democratic state passing a law struck down as compelled speech; progressives calling for firings related to “hate speech.” All were bitterly opposed by conservatives. Now, Democrats are bashing the Trump administration for all three, while many conservatives are celebrating or remaining quiet.

Just last year, Charlie Kirk himself wrote: “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. Keep America free.”

Or, consider the words of Brendan Carr in 2019: “Should the government censor speech it doesn’t like? Of course not. The FCC does not have a roving mandate to police speech in the name of the ‘public interest.’”