Since the assassination of Charlie Kirk, members of the Trump administration have made statements that, at best, demonstrate a cavalier attitude towards the right to free speech and, at worst, show a clear intention to violate people’s First Amendment rights.
Familiar attacks on speech from the left
It’s an attitude long harbored by the left, practitioners and perfecters of “cancel culture.” In 2022, the Biden administration notoriously launched a Disinformation Governance Board within the Department of Homeland Security (DHS) to suppress what it deemed “misinformation” and “disinformation.” The DHS terminated the board after public outcry over its functioning as a government “Ministry of Truth.”
That was part of a larger effort by the Biden administration and others on the left against what they believe is incorrect speech and thought. Law Professor Patrick M. Garry notes that government actions against so-called misinformation are a direct assault against our free speech rights expressed in the First Amendment:
There exists no objective definition of “misinformation,” other than speech with which one disagrees. Therefore, a censorship crusade against “misinformation” threatens to suffocate the marketplace of ideas that has inspired nearly a century of First Amendment jurisprudence.
The Biden administration also pressured social media companies to censor content on its behalf. A lawsuit against several government defendants aimed at stopping the practice was dismissed by the U.S. Supreme Court in 2024 for lack of standing. In Murthy v. Missouri, the Court held thatit was challenging to differentiate whether companies censored posts in response to government pressure or based on their own moderation policies and that the plaintiffs failed to “demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant.”
(Alphabet, the company that owns Google, recently admitted that the Biden administration had “pressed” them to remove content. Alphabet chief counsel Daniel Donovan wrote in a letter to the chair of the House Judiciary Committee that “It is unacceptable and wrong when any government, including the Biden Administration, attempts to dictate how [Alphabet] moderates content.”)
Mixed messages from the Supreme Court
That same year, however, the Court unequivocally struck down government coercion in another case. Maria Vullo, head of the New York Department of Financial Services, had threatened enforcement actions against companies that provided insurance to the NRA and other gun-rights groups. The court unanimously ruled in NRA v. Vullo that “[g]overnment officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” Legal scholar Jon Guze wrote that the decision was as strong an affirmation of free speech as anyone could hope for:
We couldn’t be happier with the result — a unanimous opinion written by the court’s most left-leaning justice in a case in which the ACLU represented the NRA. If it wasn’t clear before, it’s crystal clear now. The First Amendment forbids even indirect attacks on Americans’ expressive rights.
Yet, the Court sent a mixed message with the Murthy and Vullo decisions. Perhaps emboldened by that mixed message, the Trump administration is now following the same censorious path in the aftermath of Kirk’s shooting that the Biden administration took in the aftermath of the 2020 election and the COVID pandemic.
Attorney General attacks “hate speech”
The opening salvo came from Attorney General Pam Bondi, when she declared “hate speech” to be illegal, saying, “There’s free speech, and then there’s hate speech, and there is no place [for it] in our society. … We will absolutely target you, go after you, if you are targeting anyone with hate speech.”
This may shock those of us who are always correct and ever pure of heart, but people have a right to be misinformed. They have the right to share that misinformation. They have a right to say things many of us would find wrong, hateful, and reprehensible.
They have those rights because they are given by God, not the state. People who believe a speaker is misinformed can use their speech to counter the speech they believe is wrong and perhaps persuade others with more accurate information. The alternative is for the government to have the power to police “incorrect” thoughts and speech. That is a dangerous path that will lead to escalating censorship as new administrations take power.
On so-called hate speech, Charlie Kirk himself noted that it is a legal fiction:
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 Supreme Court has already taken the same position. In Texas v. Johnson, the case that held burning the American flag to be protected speech, Justice William Brennan wrote, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Just as importantly, censorship of odious or unpopular ideas rests on what John Stuart Mill calls an “assumption of infallibility” by would-be censors. Those who cast themselves as our intellectual protectors would use the power of government to stop what they see as incorrect or dangerous speech. We have the right to judge for ourselves, however. That recognition of the right to judge for ourselves is part of why the Framers wrote the First Amendment.
Bondi retreated a day later, saying that she would prosecute “hate speech that crosses the line into threats of violence.” Of course, communicating credible, direct threats of violence has never been protected, so her continued use of “hate speech” is disingenuous.
FCC threatens ABC and Trump gets directly involved
Not to be outdone, Federal Communications Commission (FCC) chair Brendan Carr gave a thinly veiled threat to ABC and its affiliates after talk show host Jimmy Kimmel lied about Kirk’s murderer being part of the “MAGA gang.” Carr said in a podcast:
Look, we can do this the easy way or the hard way. These companies can find ways to change conduct, to take action, frankly, on Kimmel, or, you know, there’s going to be additional work for the FCC ahead.
ABC suspended Kimmel for three shows.
As far as is known, Carr and ABC had no quid pro quo, and Kimmel is back on the air. This means that Carr’s public pressure on ABC would likely survive judicial scrutiny under the unfortunate standard established in Murthy. It would be something else altogether were the FCC to act on President Trump’s suggestion that maybe the broadcasting licenses of networks that are critical of him should “be taken away.” That kind of direct coercion would undoubtedly run afoul of the prohibition on coercion in NRA v. Vullo.
Stop attacks on free speech
Even if those moves by the Trump administration are not unconstitutional, they are politically unwise.
Kimmel’s declining ratings and relevance meant that his show’s days were numbered. Carr’s attacks elevated him, however, to the status of a free speech hero. The first episode after his suspension was the second-highest rated in the show’s history, several times the normal audience. Although they have since dropped, they remain higher than they were in the second quarter of 2025. Carr’s public pressure on ABC may have saved Kimmel’s career.
Those moves have divided Republicans, weakened the conservative coalition ahead of the 2026 midterm election, and given political shelter to the left’s censorship and cancel culture. Is there any doubt that the next Democratic administration will be both emboldened to censor speech further and use the Trump administration’s words and actions as justification for “fighting back?”
The Trump administration’s attacks on free speech have received pushback from the right. They would be wise to heed the warnings of their allies and reverse course.
