What we know about the return of cancellation culture
People who share important posts online about Charlie Kirk are facing a pause at work. This is what we know now about cancellation culture.
The fierce First Amendment debate on the concept of hate speech has taken the central stage across the nation, sparking the consent of conservative activist Charlie Kirk.
Over the past week, conservative lawmakers and influencers have come to face actions such as layoffs and halts from work after posting negative comments about Kirk and his conservative stance, seeking many individuals, from professors and emergency workers to US Secret Service agents.
The latest well-known example occurred on September 17th, with ABC saying it had pulled Jimmy Kimmel’s late-night talk show indefinitely, following comments made on the September 15 episode of Kirk’s shooting and suspects in the incident.
Federal Communications Commission Chairman Brendan Kerr appeared to have threatened ABC, Disney and Kimmel over his monologue on Kirk.
“This is a very serious problem for Disney right now. This can be done in a simple or difficult way,” Carr said on a conservative podcast. “We need to see some changes here, but the individual license stations getting content is when they step up and say this, and to some degree, it’s the trash can that’s going down the pipe in the future, isn’t something we think will cater to the needs of our community.”
The wave of targeted shooting at one point included more than 40,000 submissions submitted to a website entitled “The Published Charlie Murderer.”
On September 15th, U.S. Attorney General Pam Bondy was heavily on the topic of hate speech on an episode of the Katie Miller Podcast, a podcast hosted by the wife of Stephen Miller, the White House Deputy Chiefs of Staff.
In the episode, Bondy says, “There’s freedom of speech, there’s hate speech,” and the federal government “If you’re targeting people with hate speech, we’ll definitely target you.”
The comments received intense pushbacks from both Democrats and Republicans, and from both First Amendment experts. Many of them agree with one fact. Hate speech is almost always considered free speech and receives a high level of First Amendment protection.
The next day, Bondi revealed her remarks by noting that the Justice Department targets hate speeches that are leaning towards violence.
What is hate speech? Is it protected by the First Amendment?
Hate speech, although there is no official legal definition, often refers to a language intended to alleviate, slander, or incite hatred towards a person or group.
Despite not being defined by law, the concept of hate speech has been a constant phrase seen in courts since the country’s founding. And through many major legal precedents, the courts are made clear. Hate speech is undoubtedly protected by the First Amendment, with very narrow exceptions.
“We’re a resident of the world,” said James Weinstein, a constitutional legal expert at Arizona State University’s Sandra Deio Connor Law College and an advisor to ASU’s first amendment clinic. “Whether something is hate speech or not, it doesn’t matter in America’s first amendment.”
Kirk himself said the same, saying in May 2024, “Hate speech is not legally present in America. There are ugly speeches. There are terrible speeches. There are evil speeches. They are protected by all revisions.”
The court has repeatedly determined that so-called hate speech is protected. One of the main factors in these decisions is the idea that hate speech labels are purely subjective to listener bias and therefore cannot be used as a neutral basis for law. US Supreme Court Judge John Marshall Harlan II said in 1971 that “one man’s vulgarity is the lyrics of another person.”
In the 1989 Texas v. Johnson case, which confirmed the first right to amend American flag-burning citizens, the Supreme Court said, “The government may not ban the verbal expression of ideas simply because society considers them to be offensive or disagreement.”
And in 2017, Judge Samuel Alito was Mathal V. In Tam, he said, “The proudest pride of our freedom of speech is protecting our freedom to express the idea that we hate.”
What are the exceptions to speech protection?
A very narrow category of unprotected speech includes:
- Incitement to impending lawlessness
- Speeches considered “real threats” certainly threaten serious physical harm.
- Words of battle, or speeches that cause or threaten an immediate violation of peace
- Indecency, speech must pass a rigorous test to be defined as indecency
- Honor, perjury, fraud
If your speech falls under any of these unprotected categories, it is not protected by the First Amendment. If outside of these categories, speeches will mostly remain protected by the First Amendment.
Some specific exceptions on this list are primarily related to employment. Private employers – like private universities, television stations and networks – have a great deal of room when it comes to firing individuals for speech, especially if they violate an employer’s code of conduct or other internal policies.
The law surrounding the right to speech of public university employees is fierce as schools receive federal taxes. This will push the issue of employee speech rights into the field of the first amendment, known as the “Pickering Connick Test.” This is a two-part test in which the court can balance the employee’s right to free speech with the employer’s interests in the workplace of the employer’s interests.
What are lawmakers and revision experts saying?
Following Bondi’s comments on Miller, the Attorney General immediately pushed back from lawmakers and First Amendment experts across the country.
At Politico’s AI & Tech Summit in Washington, DC on September 16, conservatives of R-Texas Ted Cruz defended hate speech as a constitutionally protected speech, but later commented negatively about Kirk and insisted that he “facing the consequences of the murder.”
“The First Amendment provides full protection for speech,” Cruz said, Politico reported. “It absolutely protects hate speech. It protects despicable speech. It protects horrible speech. What does that mean? You cannot be charged for speech, even if it is evil and wrong with prejudice.”
Carolyn Yodis, the Foundation for Director of Legislation and Policy for Individual Rights and Expression, expressed concern over Bondy’s statement.
“The horrifying murder of Charlie Kirk, a frequent campus speaker killed while engaged in peaceful public debate, was also an attack on freedom of speech itself,” she said in a statement to Tennessee, part of the USA Today Network. “We need to respond to this moment by protecting freedom of speech and encouraging people to deal with political disagreements through open dialogue.
“Instead, many officials use their official powers to promote cancellation campaigns, and in the case of the Attorney General, it’s very troublesome that they are actually threatening Americans to prisons for constitutionally protected speeches.”
Even Matt Walsh, a conservative podcast host for Daily Wire and a self-proclaimed “theocratic fascist,” called Bondy’s stance.
“There should be social consequences for those who openly celebrate the murder of innocent men,” he said in a post in X.
Following a pushback to her remarks, Bondi posted a lengthy statement about X that made her comment clear. “Hate speech that crosses boundaries with the threat of violence is not protected by the First Amendment,” confirmed her office to indict such actions.
When asked about Bondy’s comments on September 16th by ABC reporter John Carl, President Donald Trump said, “Perhaps you’re chasing people like you, so you’re treating me so unfair.”
“It’s hatred. You have a lot of hatred in your heart,” he said, claiming that the ABC paid him $16 million for “form of hate speech,” referring to a recent settlement of honor losses between the network and Trump.
“In the past few days, the Department of Justice’s best officials have issued statements supporting or threatening violations of the First Amendment,” said Patrick Gyacomo, a senior lawyer at the Judicial Institute, a nonprofit public interest law firm. “This includes the threat of prosecuting printers to avoid printing posters, prompting government employers to fire shots and many more.
“Many statements have returned soon, but they represent either an ignorance of basic constitutional principles or an willingness to ignore them.”
Reports on the First Amendment issue of the USA Today Network are funded through collaboration with the Freedom Forum and Journalism fundraising partners. Fundingers do not have editor input.
contribution: Taylor Sheley, the first amendment reporter of the Republic of Arizona
