Major First Amendment Issues Raised Following Charlie Kirk’s Assassination: FAQs Answered

Government employers, on the other hand, are subject to some First Amendment limits when they discipline employees for their speech. A government employee, sometimes referred to as a public employee, is anyone who works for a government entity. Public employees include public school teachers, public university professors, police, firefighters and others in civil service. The Supreme Court has established a balancing test that seeks to ensure government employees can still speak out about matters of public concern and exercise their First Amendment rights as citizens, while giving the government broad leeway to ensure workplace efficiency.

Courts first ask whether the employee was speaking as part of their job duties. If so, they can be disciplined for saying something controversial. For example, an agency’s social media manager posting an unsanctioned message on the agency X account and a manager sending an agency-wide email to criticize the boss rather than raising concerns through designated channels are unlikely to get First Amendment protection.

Public employees’ speech outside their job duties is generally more protected. Here, a court asks whether the employee was speaking about a matter of public concern, which includes just about any newsworthy social or political issue. If not, they can be disciplined. If so, then they can only be disciplined if their speech was likely to cause a workplace disruption.

Disciplining educators for speech in public school settings, like K-12 and university classrooms, raises unique constitutional issues. This is an area where the law is still evolving. Courts have struggled to determine which legal standard to apply — not just to academic freedom cases, but to cases where teachers speak in a personal capacity outside their job duties. Courts have more often sided with school districts when teachers are disciplined for allegedly disruptive personal social media posts, even when those posts are made outside of school and off the clock.

In June, the Supreme Court passed on an opportunity to offer additional clarity in this area of the law, declining to hear the case of a public school teacher fired for social media posts her school district said were “derogatory and disruptive.”

Bottom line: Private sector employees have no First Amendment protection from speech-related discipline by their employer. Government employees enjoy First Amendment rights by virtue of working for the government, but not without limits. Government employers have broader rights to discipline employees who say certain controversial things in the course of their official job duties than those who are expressing personal opinions that bear no relation to their official positions. And government can punish employees for speech outside of job duties when the employees have spoken on things that aren’t a matter of public concern or say things that will disrupt the workplace.

Is doxing protected by the First Amendment?

Often, yes — but not always.

Doxing refers to publicly exposing information — sometimes already publicly available — that can be used to locate, contact or identify someone without their consent. This often includes personal details like home addresses, email addresses, phone numbers or other contact information, and is sometimes done as a form of punishment, harassment or revenge.

In the United States, publishing someone’s personal information is not automatically illegal, especially if the information was already public.

Doxing can lose First Amendment protection if it goes beyond merely sharing available information when, for example, it:

• Constitutes a true threat.
• Is part of a pattern of harassment.
• Intentionally inflicts emotional distress.
• Reveals certain nonpublic, sensitive information such as personal financial, medical or private contact details.

Some states have specific anti-doxing laws, but they must align with First Amendment standards. Texas’ anti-doxing law, for example, makes it a criminal offense to post a person’s address or phone number “with the intent to cause harm or a threat of harm to the individual or a member of the individual’s family or household.”

Watchdog or protest groups compiling publicly available records — such as property ownership databases, political donations or names of activists — are generally protected, even if the information being publicized might upset the people involved. For example, the publication of activists’ names on sites like Canary Mission has raised ethical concerns but, absent explicit threats or harassment, remains First Amendment-protected speech. This would likely be the case for people collecting and sharing publicly available information about, or social media posts of, Kirk critics.

By contrast, Kelley Wolf, wife of actor Scott Wolf, was arrested in Utah in August after allegedly posting her estranged husband’s private cell phone number online, alongside commentary authorities alleged encouraged others to harass him. She was charged with two misdemeanors, including electronic disclosure of personal identifying information and electronic communications harassment.

In short, while free speech protections for sharing public information are broad, they do not extend to speech that crosses into threats, harassment or serious invasions of privacy.

Is hate speech protected by the First Amendment?

Yes.

The First Amendment protects the widest possible range of speech, including “hate speech” from government punishment or control.

In the U.S., you have a First Amendment right to express views others find offensive, upsetting or even hateful without being punished by the government. You can generally use racial slurs, endorse violence or purposely say hateful things about other people — even though it may be considered reprehensible by some.

This is a First Amendment feature, not a bug. In order to identify and punish hate speech, elected officials would need to insert their own subjective views about right and wrong and make judgments about which opinions and viewpoints are off limits and which are favored. This is known as viewpoint discrimination, one of the clearest First Amendment violations.

If the government were to punish hate speech, the standard for what constitutes “hate speech” would vary and change over time, and speakers would always have to guess whether they are violating the law or not and would be likely to self-censor to avoid getting in trouble. This means a hate speech law would also violate the First Amendment's prohibition on vague, overbroad laws.

The First Amendment guards against this kind of censorship by ensuring the widest range of speech — even hate speech — is protected.

In order to avoid censoring viewpoints, no matter how objectionable those views may seem, courts have recognized a few well-defined categories of speech that are unprotected by the First Amendment.

The First Amendment exceptions most relevant to hate speech include true threats, incitement to imminent lawless action, fighting words and defamation — each of which has a precise legal definition.

When any of these narrowly defined exceptions to the First Amendment apply, the speaker is not punished for the words they are saying but because their words are delivered in a way that is intended to cause or does cause harm. For example, including a racial slur in a public speech to an assembled audience might elicit allegations of “hate speech,” but that use is likely First Amendment-protected. Conversely, directing a racial slur at someone in a face-to-face conversation in a manner likely to provoke a reaction could meet the legal definition of fighting words.

In sum, speech that is labeled as “hate speech” may fall into an unprotected category of speech, but speech cannot be punished by the government solely because it may be viewed as hateful.

Can social media companies ban or suspend accounts for controversial posts?

Generally, yes.

Social media companies are private actors with a First Amendment right to make and enforce platform rules. These platforms can bar certain types of speech that don’t align with their terms of use. For example, several social media companies ban or restrict “hateful” or “offensive” content. By opting to use private social media platforms like X, TikTok, Instagram or Facebook, you agree to follow their rules.