In the wake of conservative activist Charlie Kirk’s assissination, 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 individuals, ranging from professors and emergency workers to a U.S. Secret Service agent, to face actions like termination and suspension from their jobs after they posted negative comments about Kirk or his conservative stances.

The most recent, high profile example came on Sept. 17, ABC said it had indefinitely pulled Jimmy Kimmel's late-night talk show following comments he made on a Sept. 15 episode regarding the Kirk's shooting and the suspect in the case.

Brendan Carr, the chair of the Federal Communications Commission, had seemingly threatened ABC, Disney and Kimmel over his monologue about Kirk.

"This is a very, very serious issue right now for Disney. We can do this the easy way or the hard way," Carr said on a conservative podcast. "Disney needs to see some change here, but the individual licensed stations that are taking their content, it's time for them to step up and say this, you know, garbage to the extent that that's what comes down the pipe in the future isn't something that we think serves the needs of our local communities."

The 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, many of whom agree on one fact: hate speech is almost always considered free speech, and receives high levels of First Amendment protection.

The next day, Bondi clarified her remarks by noting the Department of Justice would target hate speech that leans to violence.

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, the concept of 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 undeniably protected by the First Amendment, with very narrow exceptions.

"The first thing you need to know: There is no ... category in American jurisprudence called hate speech,” said James Weinstein, constitutional law expert at Arizona State University's Sandra Day O'Connor College of Law and adviser at ASU's First Amendment Clinic. “It doesn't matter in America’s First Amendment law whether something is hate speech or not."

Kirk himself said the same thing, 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.”

The courts have ruled, over and over again, that so-called hate speech is protected. One major factor of these decisions is the idea that the label of hate speech is purely subjective to the listeners’ biases, and therefore cannot be used as a neutral basis for law. As U.S. Supreme Court Justice John Marshall Harlan II said in Cohen v. California in 1971 that “one man’s vulgarity is another man’s lyric.”

In the 1989 Texas v. Johnson case, which affirmed citizen’s 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 are the exceptions to the protections for speech?

Very narrow categories of unprotected speech include:

  • Incitement to imminent lawless action
  • Speech that is considered a “true threat,” which reliably threatens serious bodily harm
  • Fighting words, or speech that causes or threatens an immediate breach of the peace
  • Obscenity, though speech must pass a rigorous test to be defined as obscenity
  • Defamation, perjury and fraud

If the speech falls within one of these unprotected 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 − like private colleges and universities or a television station or network − have large leeway when it comes to firing individuals for speech, especially when it violates an employer's code of conduct or other internal policy.

The law surrounding public university employees' speech rights is murkier, as the schools receive federal tax dollars. This pushes the question of the 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 First Amendment experts saying?

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, the Foundation for Individual Rights and Expression's legislative and policy director, 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, part of the USA TODAY Network. "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."

Even Matt Walsh, a conservative podcast host for The Daily Wire and a self-proclaimed “theocratic fascist," called out Bondi’s stance.

“There should be social consequences for people who openly celebrate the murder of an innocent man,” he said in a post on X. “But there obviously shouldn’t be any legal repercussions for ‘hate speech,’ which is not even a valid or coherent concept. There is no law against saying hateful things, and there shouldn’t be.”

Following the pushback to her remarks, Bondi posted a lengthy statement on X clarifying her comments. “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 on Sept. 16 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. Funders do not have editorial input.

Contributing: First Amendment reporter Taylor Seely of the Arizona Republic

This article originally appeared on Nashville Tennessean: Is hate speech free speech? What to know after Charlie Kirk's death

Reporting by Angele Latham, USA TODAY NETWORK / Nashville Tennessean

USA TODAY Network via Reuters Connect