On "Censorship"
When it comes to the First Amendment, not all blowback is "censorship" and not all "censorship" is the same.
Private and Public Forms of “Censorship”
Often in our discourse about freedom of expression commentators and pundits will use the term “censorship.” The term is applied to both private sector and governmental acts. As the blowback concerning speech about Charlie Kirk’s killing and the Trump Administration’s response shows, we should be clearer about forms of “censorship” and their relation to the First Amendment.
Consider the following scenarios:
A speaker who uses the N-word online faces social and cultural opprobrium. The speaker is criticized and shamed. The consequences of blowback may include loss of opportunity to speak, online harassment, or in some cases loss of employment.
A speaker who sends a DM to someone threatening to kill them is prosecuted and jailed under a federal law that criminalizes online threats.
From a First Amendment standpoint, these two scenarios are quite different. The First Amendment only limits public or state action. The consequences for the speech in the first scenario are social and cultural, not legal. Nor are all of the consequences properly characterized as “censorship.” For example, shaming someone or criticizing their speech is not “censorship.” Indeed, in most cases it is what First Amendment doctrines and principles refer to as “counter-speech.” The First Amendment counsels responding to the denigration of a person or class with support or praise for that person or class - to respond to what Justice Brandeis once called “evil counsels” with good or wise ones.
Now, some private speech consequences might appropriately be considered forms of “censorship.” For example, de-platforming a speaker, preventing them from speaking at a scheduled event, or causing their termination might be so characterized. Some of these consequences are bad for free speech culture or inconsistent with First Amendment principles and values. But again, none are limited by the First Amendment. Speakers do not have a First Amendment right to be protected from private counter-speech and social consequences.
In the second scenario, by contrast, it is the government that is sanctioning speech. Thus, the speaker may mount a First Amendment defense, arguing that their utterance does not meet the definition of threats as the Supreme Court has defined it. The First Amendment shows up in the case because the consequences are not social or cultural but rather are legally prescribed. The power of the state is implicated and exercised. The same goes for governmental efforts to punish speakers for offensive, hateful, or derogatory expression. The First Amendment limits governmental or official forms of censorship to protect the free exchange of ideas from governmental suppression and censorship.
This is a simple yet fundamental distinction, one we should keep in mind as we sort through speech controversies - including the aftermath of Charlie Kirk’s killing, where both counter-speech and “censorship” have occurred. We should keep in mind that while private acts of “censorship” can be problematic in terms of facilitating a culture of free speech, governmental efforts to punish speech pose the threats to freedom of expression the First Amendment is concerned with.
Kirk-Related Cancellations and “Censorship”
The aftermath of Charlie Kirk’s killing has highlighted these distinctions. Conservative commentators and influencers have encouraged or participated in efforts to identify and punish speakers who praised, celebrated, or mocked Charlie Kirk’s killing. Right wing influencers and commentators have called for employers to fire anyone who communicated these ideas. Some private employers (and some public ones too) have done so. In the private realm, speakers who face consequences for their expression generally have no First Amendment defense or right.
Counter-Speech and Cancellation
But more than counter-speech has occurred in the wake of recent events. Rather than criticize and counter negative depictions of Kirk or celebrate his life and work, many on the right have called for far more serious repercussions including loss of livelihood or, in Jimmy Kimmel’s case, cancellation of his show.
Conservatives have long - and loudly - complained about private “censorship” of their speech, including “cancellation” of speakers based on communication of offensive and derogatory language or ideas. Sometimes the complaints have been framed in terms that suggested the government was dictating the terms and boundaries of expression, when in fact these terms and boundaries were mostly being set by private communities and institutions. Thus, the speech in question was not being “censored” in a manner the First Amendment formally recognizes. It may be more rhetorically effective to speak as if one is being forced by government not to use certain terms of phrases, but in these circumstances the government was not treading on any First Amendment rights.
It is obvious now that, at least for some on the right, the objection to “cancellation” and insistence that audiences not respond to deeply offensive speech by cancelling or threatening to cancel speakers was not principled. The objection was not really to cancelling offensive speakers or speech generally, but rather to cancelling speakers and speech conservatives liked or wanted to communicate. For example, consider this comment reported in The New York Times:
Dave Portnoy, the founder of Barstool Sports, said he did not believe Mr. Kimmel’s removal was an example of “cancel culture.” He said that “when a person says something that a ton of people find offensive, rude, dumb in real time and then that person is punished for it that’s not cancel culture. That is consequences for your actions.”
So according to Mr. Portnoy, Kimmel was not “cancelled,” but rather appropriately suffered negative consequences for his offensive speech. Inconsistency of this sort can also afflict liberals, too, as when they object to “censorship” of some language or views they dislike but not others they favor. But it has been conservatives who have made “not being told what they can and can’t say” part of a political platform that swept Donald Trump to power for a second time. And now many of those same conservatives are calling for the cancellation of Jimmy Kimmel’s show and of many other speakers who said things the right did not like about Charlie Kirk’s killing.
If it was wrong then to seek the cancellation of conservative speech or speakers, then it is wrong now to do the same regarding liberals who have expressed themselves in ways conservatives find offensive. It is no answer that the left has done it too. As my mother was fond of saying when I complained about being punished for something my brother had also done but had gotten away with, “two wrongs don’t make a right.”
Governmental Censorship
Hypocrisy and opportunism, including about free speech, is a political malady that unfortunately afflicts “both sides.” But private suppression is not all we have to worry about in the aftermath of Kirk’s killing.
One key difference between past “cancel culture” debates and the Kirk backlash is that governmental actors have been involved. President Trump, Vice President Vance, FBI Director Patel, Attorney General Bondi, Federal Communications Commission Chairman Brendan Carr, and other administration officials have all vowed to investigate and prosecute “liberal” institutions and speakers who praised, celebrated or presumably expressed ambivalence about Kirk’s killing.
Before a suspect had even been identified, President Trump vowed to go after left-wing groups he claimed were responsible for Kirk’s murder. He also offered a blanket, if utterly non-sensical, excuse for right-wing violent rhetoric. Trump claimed this dangerous rhetoric and, presumably, any violence associated with it, was rooted in concerns about crime. Although he did not offer examples (and of course was not pressed for any), one might think of the political violence of January 6 or the murders committed by Dylan Roof. In what sense was this political violence related to “concerns about crime”? Further, the President vowed not only to target speakers and speech, but to do so based on viewpoint.
Attorney General Bondi initially vowed to prosecute Kirk-related speech as “hate speech,” which is generally protected expression in the U.S. After checking her First Amendment class notes, Bondi decided her office would target “threats.” She should have checked her notes again. Speech that praises or celebrates the killing of another is tasteless and vile, but it does not meet the very narrow definition of a “true threat” as the Supreme Court has defined it.
The FCC’s Chair explicitly threatened ABC with revocation of its license if it did not pull Kimmel’s show from the air based on the comedian host’s comments about Kirk’s killer. Carr suggested ABC could do things “the hard way” or “the easy way.” And his agency has before it a merger application (sound familiar?) that might be placed in jeopardy should the broadcaster not agree to do things “the easy way.” This isn’t an empty threat, since the FCC has already investigated CBS and other broadcast stations for editorial and other expressive activity while it considered merger applications.
And it isn’t just federal officials who are calling for action. For example, the Governor of Texas has called for the expulsion of a student at a public university for creating a video mocking the shooting.
These are all perfect examples of the “censorship” the First Amendment prohibits. From a First Amendment perspective, there is a galaxy of difference between a speaker who relies on counter-speech to criticize the use of derogatory language and a government that investigates and sanctions speakers based on disfavored speech.
The private-public “censorship” distinction has mostly been lost in the zone-flooding second Trump term. Reacting to mostly cultural blowback from the left about speech relating to race, gender, immigration, American history, and science, the Trump Administration has frequently used the powers of government to target, punish, exclude, and eradicate speech Trump and conservatives dislike. It has gone after law firms, terminated university funding, and threatened to revoke broadcast licenses and tax exemptions for certain left-leaning organizations. And the administration has intervened in scientific inquiry, the content of museum exhibits, and other areas previously the bailiwick of trained researchers and experts. In general, the culture wars involving expression have shifted from mostly private pressure on conservative speakers to one that is being conducted by government agencies and executed by means of legal sanctions.
The Administration has tried to defend itself by claiming the Biden Administration also occasionally sought to suppress or censor speech. For example, the Biden administration pressured social media platforms to remove content it claimed was harmful to public health or threatened public safety. Coercive forms of governmental censorship ought to be condemned, regardless of party. However, the Trump Administration’s widespread campaign, which consists of actions being taken across and beyond the federal government, is exceptionally and uniquely dangerous to free expression. The federal government’s response to speech about Charlie Kirk reminds us why the First Amendment treats governmental forms of censorship as distinctive threats.