News Analysis: ‘This is not normal’: First Amendment faces extraordinary pressures in the wake of Kirk assassination

Charlie Kirk’s assassination and the extraordinary week of threats, recriminations, firings, suspensions and lawsuits that followed are testing the outer limits of free speech.

What role does hate speech play in political violence? When is hate speech protected by the Constitution – as it is with flag-burning and cross-burning and even academic advocacy of overthrowing the government. And when is it not protected, as in incitement to a crime that is imminent or true threats or in your face fighting words.

If conservatives don’t approve of “cancel culture” when “Woke” sensibilities force out conservative speakers, how can they support cancel culture where those criticizing Kirk’s speech are forced out of jobs or silenced? The First Amendment can’t favor one partisan political side over another.

Can the government take away the nonprofit status of the Soros foundation or the Ford Foundation for supporting liberal causes? Can the president declare Antifa a domestic terrorist group? Can the government investigate a “network” of liberal groups for contributing to Kirk’s assassination if the shooter acted alone without direct incitement? 

Was some of Kirk’s own speech about Black women, gays and transgender people hate speech? Is criticizing Kirk’s alleged hate speech a fireable offense?  

Would Kirk himself approve of investigating hate speech, as Attorney General Pam Bondi threatened, considering that one of Kirk’s most attractive features to young people was his fervent advocacy of free speech and open debate across the spectrum? 

What about the speech of MSNBC’s Matt Dowd who was removed by network executives after saying shortly after the shooting that Kirk was “one of the most divisive, especially divisive younger figures in this, who is constantly sort of pushing this sort of hate speech or sort of aimed at certain groups…hateful thoughts lead to hateful words, which then lead to hateful actions.”

Or how about those who suggested, apparently wrongly, that the shooter might have been a right-winger? ABC removed Jimmy Kimmel from the air for suggesting it, reacting to pressure from Trump’s FCC chair. Trump applauded from London.
What about a professor suggesting that some of Kirk’s speech was hate speech? The Chronicle for Higher Education rounded up university firings this week where Republicans pressed university officials to fire professors, from Clemson, to Florida Atlantic to the University of Tennessee and beyond.

Kirk becomes a martyr

The bullet that ended Kirk’s life while he spoke from the stump at a Utah university instantly transformed him into a martyr for the First Amendment and for the conservative causes he championed. Kirk, who was 31, toured the country for years as part of his Turning Point USA campaign, challenging liberals to debates and bringing many Gen Z men and women into President Trump’s MAGA campaign. Trump said Kirk might have won him the election. Young liberals whom Kirk debated and often bested, joined in commemorating Kirk’s devotion to free and open debate.

President Trump quickly blamed the “radical left” for “political violence (that) has hurt too many innocent people and taken too many lives.” In the days since the shooting, he, Vice President Vance and much of their administration have threatened the nonprofit status of liberal groups like George Soros’s Open Society Foundations and the Ford Foundation, threatened to revoke visas for people seen to be “celebrating” Mr. Kirk’s death, threatened to initiate hate speech investigations and spoke of designating liberal groups as domestic terrorists.  

Vance took over the microphone of Kirk’s popular daily radio show on Monday and threatened to crack down on the “radical left lunatics,” while Deputy Chief of Staff Stephen Miller, point man for deportations, said he’d use the Departments of Justice and Homeland Security to disrupt “networks” responsible for violence. Miller claimed there were “organized doxing campaigns,” “organized campaigns of dehumanization and vilification,” and “actual organized cells that carry out this violence” as parts of the “vast domestic terror movement.” 

“This is not happening for free,” Miller said. “And so under the president’s direction, the attorney general is going to find out who is paying for it, and they will now be criminally liable for paying for violence.”  

Vance said, “We’re going to go after the NGO network that foments, facilitates, and engages in violence.”

Vance blamed Soros and Ford for funding the “disgusting article” in the Nation magazine that he said was used to justify Kirk’s death. “Well-funded institutions of the left lied about what he said so as to justify his murder,” said Vance. “This is soulless and evil.”

There is no evidence of either foundation funding the Nation in recent years. Nor was Vance’s claim about the Nation’s article accurate: The article “lied about a dead man,” Vance claimed. The “lie” was in quoting Kirk saying “Black women do not have brain processing power to be taken seriously.”

In actuality, Kirk in criticizing affirmative action, listed Rep. Sheila Jackson Lee, D-Texas, TV host Joy Reid, Michelle Obama and Justice Ketanji Brown Jackson and added ,”Yeah, we know. You do not have the brain processing power to otherwise be taken really seriously. You had to go steal a white person’s slot to be taken somewhat seriously.”

Trump was asked at the White House after the Vance radio show if he would designate organizations like Antifa as domestic terrorist organizations. ”It’s something I would do, yeah,” Trump said. 

The administration’ s denunciations of political violence are entirely directed at violence against conservatives. The president did not react to the Minnesota murders of leading Democrat state legislative leaders or a gunman’s attack on the Centers for Disease Control and Prevention. Nor has Trump or Vance or any other administration official provided evidence linking any group to the Kirk shooting.  Law enforcement has so far described the murder as the act of a single gunman.

One more question to the president this week was why he hadn’t lowered the flag to half-mast after the June assassination of Melissa Hortman, Minnesota House Speaker, and her husband. Trump responded, “I’m not familiar. The who?”

As Trump boarded a plane to England, a reporter asked, “What do you make of Pam Bondi saying she’s gonna go after hate speech? … A lot of your allies say hate speech is free speech.”

His answer was personal, directed at the questioner ABC News Chief Washington Correspondent Jonathan Karl. “ [We’ll] probably go after people like you, because you treat me so unfairly, it’s hate. You have a lotta hate in your heart. Maybe they’ll come after ABC. Well ABC paid me $16 million recently for a form of hate speech, right? Your company paid me $16 million for a form of hate speech. So maybe they’ll have to go after you.”

Trump’s reference was to ABC’s agreement to settle a defamation case Trump filed against the network for George Stephanopoulos’ use of the word “rape” to characterize a jury verdict finding that Trump had sexually assaulted E. Jean Carroll in a New York department store in the mid 1990s. 

An unusual $15 billion lawsuit 

About the same time Monday that Vance and Miller were making their enforcement threats on Kirk’s radio broadcast, the president’s lawyers were filing a $15 billion defamation suit against the New York Times, complaining the Times had not given him the credit he deserved for the success of his businesses, The Apprentice or his unprecedented election victory.

In language one doesn’t usually find in a lawsuit, the complaint said, “With the overwhelming victory, President Trump secured the greatest personal and political achievement in American history. All across our country, Americans from a wide array of backgrounds saw the truth about him and voted accordingly—the same truth that the New York Times refused to recognize as it continued spreading false and defamatory content about President Trump.

“…The subject matter of this action—a malicious, defamatory, and disparaging book written by two of its reporters and three false, malicious, defamatory, and disparaging articles, all carefully crafted by Defendants, with actual malice, calculated to inflict maximum damage upon President Trump, and all published during the height of a Presidential Election that became the most consequential in American history—represent a new journalistic low for the hopelessly compromised and tarnished ‘Gray Lady.’”

On social media, Trump trumpeted his suit: “The ‘Times’ has engaged in a decades long method of lying about your Favorite President (ME!), my family, business, the America First Movement, MAGA, and our Nation as a whole,” Trump wrote. “I am PROUD to hold this once respected ‘rag’ responsible, as we are doing with the Fake News Networks such as our successful litigation against George Slopadopoulos/ABC/Disney, and 60 Minutes/CBS/Paramount.”

Not normal

The Trump lawsuit was filed as a Media Law Resource Center brought together First Amendment lawyers, judges and journalists outside of Washington to discuss recent First Amendment developments.

A theme quickly emerged. The actions of the Trump administration are not normal and they threaten to harm the First Amendment, in contradiction to Trump’s frequent campaign promises to expand free speech by ending cancel culture and deference to Woke sensibilities.

“This is not normal,” said U.S. Judge Paul Friedman, a senior district judge in D.C.  “We’ve never seen anything like this before.” Friedman was referring to the 400 lawsuits that have been filed against Trump’s actions. He also mentioned the threats federal judges have received recently, including unordered pizza deliveries in the name of Daniel Anderl. Daniel, the son of New Jersey federal judge Esther Salas, was murdered in 2020 by a disgruntled lawyer who came to the judge’s house disguised as a pizza delivery man.  John McConnell, a U.S. district judge from Rhode Island, and Robert Lasnik, who sits on the western district of Washington, say they recently received pizzas in Daniel’s name.  

Friedman said there has been a centuries’ long adherence to the principle of a “presumption of regularity” in government actions. He said judges are now backing away from that presumption. “The presumption of regularity……built up over generations has been lost in weeks.”

No president had sued the media before Trump, the lawyers and judges said. The closest thing to it was that Theodore Roosevelt, after leaving the White House, sued because of an article saying he was frequently getting drunk. Roosevelt won six cents in court.

Lee Levine, a veteran First Amendment lawyer, quipped that when former President Richard M. Nixon was threatening FCC licenses of the Washington Post around the time of Watergate, “even he wasn’t trying to line his pockets with defamation suits.”

Elisabeh Bumiller, who was formerly Washington Bureau Chief of the Times, said the Times has taken precautions to protect its reporters. In addition it has greatly expanded the size of the Washington Bureau from 70 to 200. Given Trump’s late night postings, the reporters are often busy into the wee hours, she said.

Bumiller said that before the president’s trip to Alaska to meet with Vladimir Putin, there were no briefings on what to expect. That would never have  happened in past presidencies, she said. Mike McCurry, the Clinton press secretary, agreed.

FCC Commissioner Anna Gomez, a Democratic holdover on the FCC, said she “never would have expected reinitiated investigations (of cases) that had been dismissed.”  She was referring to the Trump claim that CBS had distorted the news by its editing of the 60 Minutes interview with Kamala Harris last fall. The FCC had dismissed the complaint last year, but Trump’s new chair, Brendan Carr, reopened the investigation, which had the effect of pressuring CBS’s corporate owners to settle for $16 million plus.

Carr also led the offensive against Kimmel. Kimmel said during his monologue Monday, “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,”  (Authorities released evidence Tuesday that the shooter targeted Kirk because of his conservative views.)

On Wednesday, the FCC’s Carr responded to Kimmel in a podcast with conservative influencer Benny Johnson..”We can do this the easy way or the hard way,” he said, adding, “These companies can find ways to change conduct and take action, frankly, on Kimmel, or there’s going to be additional work for the FCC ahead.” ABC quickly suspended Kimmel indefinitely. Carr said Thursday that the Kimmel suspension will “not be the last shoe to drop.”

President Trump celebrated: “Great News for America: The ratings challenged Jimmy Kimmel Show is CANCELLED,” he posted on Truth Social. “Congratulations to ABC for finally having the courage to do what had to be done. Kimmel has ZERO talent, and worse ratings than even Colbert, if that’s possible. That leaves Jimmy and Seth, two total losers, on Fake News NBC. Their ratings are also horrible. Do it NBC!!! President DJT”

While returning from London, Trump escalated the threats, suggesting that the FCC should consider revoking the license of broadcasters that criticize him.

Aboard Air Force One, Trump told reporters that the networks are “an arm of the Democrat party” who are out to get him.

“I have read someplace that the networks were 97 percent against me, I get 97 percent negative, and yet I won and easily. I would think maybe their license should be taken away.”

Jon Stewart ended the day Thursday by stepping in to guest host The Daily Show,  introducing “the all new, government-approved ‘Daily Show” with its patriotically obedient host.

“The speech we hate series” is funded by the Pulitzer Center on Crisis Reporting. The first two stories in the continuing series are here and here.