Speaking of the First Amendment: Can “Hateful” Speech Be Punished?

​The decline of civic education in America is reflected in the inability of most Americans today to name the five protections of the First Amendment. Worse, one in three college students believes violence is sometimes justified against certain speakers.

In the turbulent wake of the assassination of Charlie Kirk, two basic First Amendment misunderstandings keep surfacing.
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• First, many believe the First Amendment applies to private organizations, including employers and social media platforms. It doesn’t – it only restrains the government.

 

• Second, many think the First Amendment prevents a private employer from firing someone for comments made on social media during their own time. It offers no such protection.

What Can the Government Do About Speech?
Brendan Carr, Chairman of the Federal Communications Commission, got it right at Politico’s AI & Tech Summit when asked if government should crack down on ugly social media posts about Kirk’s murder.

Chairman Carr said:

“I think you can draw a pretty clear line, and the Supreme Court has done this for decades, that our First Amendment, our free speech tradition, protects almost all speech.”

He noted that only “a relatively small category of speech” – such as direct advocacy of violence – has “existing laws on the books that deal with that.”

Attorney General Pam Bondi was less discerning. She faced a brutal takedown by Charles C.W. Cooke in National Review for comments she made this week. Cooke noted that Bondi promised: “We will absolutely target you, go after you, if you are targeting someone with hate speech.”

Cooke wrote:

“Actually, she won’t. She won’t ‘target’ or ‘go after’ anyone for ‘hate speech’ because, legally, there is no such thing as ‘hate speech’ in the United States, and because, as a government employee, she is bound by the First Amendment. And if she tries it anyway? The Supreme Court will side against her 9-0.”

Cooke notes that there are categories of speech such as incitement, libel, and threats that can be sanctioned. Otherwise, he wrote, “speech is speech.”

“But speech that is supposedly ‘hateful’ – including about Charlie Kirk’s murder – is undoubtedly protected by the Constitution. Kirk himself was clear about this.”

Can Businesses Refuse to Promote Your Views?
Attorney General Bondi also suggested prosecuting businesses that refuse to print posters for Kirk vigils. That’s a fundamental misreading of the First Amendment. Businesses can legally refuse any customer, as long as it is not on the basis of a protected category, such as race, gender, or national origin.

To propose otherwise is to fail to understand the First Amendment as a neutral principle.

Think about it: If you want to defend a Christian web designer who is being prosecuted in a blue state for declining to celebrate same-sex marriage as a matter of religious conviction, you cannot then turn around and prosecute vendors for declining to print a poster with a political subtext.

What Does the Law Say About Firing People for Their Posts?
Bondi told Sean Hannity on Monday, that employers “have an obligation to get rid of people. You need to look at people saying horrible things.”

Private employers have no such obligation to the government. And while many states protect the speech and political views of private employees by statute, the rules regarding private-sector employment and private speech in states without such protections typically favor the employer. A number of employees of private companies and even public school teachers have been fired for insensitive comments in recent days. And most of these firings will likely stick.
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• Brian Spanh, a free speech attorney at Godfrey & Kahn, told David Go of Fox News: “Generally speaking, the First Amendment is not going to protect an employee from being fired for social media comments that he or she makes, if they are working for a private company.”

 

• Most private employment is “at will,” meaning, said Ryan Thompson, a senior HR consultant, “you can be fired for a good reason, a bad reason or no reason, provided it’s not an illegal or discriminatory reason.”

 

• Thompson said that the law is a little less clear for public employees, like public-school teachers. But many have signed contracts that include clauses for “moral turpitude” and “community unrest or outrage” that could allow such a firing.

The Bottom Line on Free Speech
We know that a lot of ugly and insensitive things have been said and posted in the wake of the Kirk assassination. But trying to regulate speech is not only unconstitutional, it is also self-defeating. If we actually broke the First Amendment, forbidden speech wouldn’t disappear. It would pool under the national skin, fester, and become something much worse.
As always, sunlight remains the best disinfectant.

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