The day before right-wing activist and Turning Point USA Co-Founder Charlie Kirk was assassinated on September 10, 2025, he texted the following to civil rights advocate and CNN host Van Jones: “Hey, Van, I mean it, I’d love to have you on my show to have a respectful conversation about crime and race. I would be a gentleman as I know you would be as well. We can disagree about the issues agreeably.”
The words call to mind what Kirk tweeted in 2024: “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 First Amendment does not include the phrase “hate speech” or any of the other forms Kirk mentioned. It instead holds that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
“Speech” is interpreted broadly to include spoken and written words, as well as symbolic acts like protests or what a person reads or wears. The Supreme Court has ruled that there is no exception in the First Amendment for “hate speech” as a category of unprotected speech.
Landmark Supreme Court Cases Establishing the ‘Right to Offend’
The U.S. Supreme Court is responsible for upholding the Constitution, and therefore the First Amendment, through its power of judicial review. It can declare laws and executive actions unconstitutional. It is also the guardian and interpreter of the nation’s founding document.
The Supreme Court over the decades has consistently held that speech cannot be prohibited simply because it is considered offensive, repugnant, or hateful by anyone. Here are just some of the many cases that have established the right to offend:
Cohen v. California (1971): The Court overturned the conviction of a man arrested for wearing a jacket that read “F–k the Draft” inside a courthouse. Justice John Marshall Harlan wrote that “one man’s vulgarity is another’s lyric,” establishing that offensive language is protected speech. The ruling emphasized that the government cannot be an all-powerful censor simply because some people find certain speech offensive.
Matal v. Tam (2017): The Court struck down a federal law that prohibited the registration of trademarks considered “disparaging.” In his majority opinion, Justice Samuel Alito wrote that the government has no business “preventing speech expressing ideas that offend” and reaffirmed that protecting “the thought that we hate” is the “proudest boast of our free speech jurisprudence.”
Snyder v. Phelps (2011): The Court ruled in favor of the Westboro Baptist Church, which had picketed a soldier’s funeral with signs some deemed offensive. Chief Justice John Roberts stated that, while the speech was hurtful, the First Amendment required the Court to “shield Westboro from tort liability” to ensure public debate is not stifled.
Texas v. Johnson (1989): The Court affirmed that even offensive symbolic speech, such as burning the American flag, is protected by the First Amendment.
When Offensive Speech Is Not Protected
The Supreme Court has, however, established boundaries for when “offensive” speech is not protected. These include:
Incitement to Imminent Lawless Action
Speech that directly encourages immediate illegal activity is not protected.
True Threats
Speech that constitutes a serious threat of bodily harm to a specific person or group is unprotected.
“Fighting Words”
Speech that is likely to provoke an immediate violent reaction may not be protected.
Obscenity
Sexually explicit material that meets the strict legal definition of obscenity is not protected.
Defamation
False statements of fact that harm another’s reputation can be restricted.
Child Pornography
This is an unprotected category of speech.
The First Amendment and Deliberate Misgendering
It is beyond evident that there are many instances, and particularly under the current administration, when speech has been wielded against the LGBTQ+ community. One subject heavily up for debate in recent years addresses the usage of an individual’s preferred pronouns. Kirk often referred to his concerns about using “pronouns that aren’t true,” aligned with his beliefs about gender and biological sex. This debate is therefore strongly tied to transgender rights.
Attorney Molly Dower of The Legal Aid Society explains this matter’s importance: “Our names and pronouns are personal and powerful. They reflect our identities and provide a vehicle for self-definition. Using someone’s name and pronouns is an act of recognition. Conversely, deliberate misgendering, or the intentional ‘assignment of a gender with which a party does not identify,’ is an act of hostility.”
Shouldn’t misgendering then be considered unprotected speech? In a seminal piece, “Beyond Offense: Why the First Amendment Does Not Protect Deliberate Misgendering” (https://bit.ly/4ngFGJf), Dower provides a detailed look at the legal debate as it stands now nationally.
As she writes, “Relying largely on the marketplace metaphor, the Court has enshrined a constitutional right to offend. In doing so, the Court has armed conservative opponents to antidiscrimination laws prohibiting deliberate misgendering with a powerful sword that is being used with increasing frequency, as conservative opponents of these laws use the First Amendment to assert a constitutionally protected right to deliberately misgender others as an expression of an (offensive) viewpoint.”
Beyond Government Censorship
The First Amendment protects citizens from government censorship, but not restrictions from private entities like businesses or social media platforms. Private companies can restrict employee speech in the workplace or censor user content on their platforms, as long as their actions don’t violate other laws, such as anti-discrimination statutes or laws protecting “concerted activity” for workers.
Examples of company speech restrictions include:
Workplace Policies
Employers can establish policies that restrict employee speech, including political or controversial statements, without infringing on the First Amendment.
Social Media Policies
Companies can create policies to regulate what employees post on social media, even when the speech occurs on personal time.
Content Moderation
Social media platforms can remove content or ban users from their platforms because they are private entities with their own terms of service. In addition to content moderation, they also use algorithms to promote or demote content based on engagement and other factors, thereby shaping which voices are heard. Truth Social was purported to be a model of less invasive content moderation, but, in recent months, artificial intelligence is being used more heavily to assist human moderators in flagging and reviewing potentially prohibited content. The consumer rights group Public Citizen and others have argued that such content oversight contradicts the platform’s “minimal content moderation” promise. Interestingly, Truth Social’s cloud-based AI originates from the San Francisco-based tech company Hive.
California and certain other states, however, have their own legal protections that offer more speech rights to employees than the First Amendment alone provides. For a good summary of these rights in California, along with others pertaining especially to the LGBTQ+ community, go to: https://oag.ca.gov/lgbtq/rights
Regarding the display of Pride flags, President Trump has heightened his rhetoric in recent weeks, equating these flags to “domestic terrorism.” While the federal government can control the display of such flags on certain federal properties, such as U.S. embassies and some government buildings, it cannot impose a complete and total ban on their display, which is a protected form of symbolic speech under the First Amendment. Bans on Pride flag displays can still happen at the city level, even in California. Huntington Beach, Downey, and Redlands are among the California cities that have restricted the display of nongovernmental flags outside of city buildings, effectively banning these city’s Pride flags.
Dangerous Cancel Culture Precedent Following Kirk’s Murder
The Trump administration continues to counter the First Amendment rights that Kirk so often referenced and arguably died defending. For example, the Pentagon has promised to “address” federal employees who are deemed to mock or celebrate Kirk’s death. (The Pentagon has also in recent days announced that it will require credentialed journalists to sign a pledge to refrain from reporting information that has not been authorized for release, including unclassified information. The Pentagon is then threatening to strip journalists of their credentials if they report information that is not approved, thereby eliminating freedom of the press in terms of official Pentagon news.)
The State Department, in turn, made a statement that it will revoke visas over social posts that “celebrate” Kirk’s death. As this happened, Vice President JD Vance, while hosting Turning Point USA’s podcast, encouraged listeners to call the employers of anyone “celebrating Charlie’s murder.” And Attorney General Pam Bondi said that people who post “hate speech” should be “shut down.” She also said, “We will absolutely target you, go after you, if you are targeting anyone with hate speech.”
Then there have been the high-profile attacks on late night hosts Stephen Colbert and Jimmy Kimmel. Colbert, a liberal political commentator who has referred to President Trump as an “autocrat,” will no longer have his The Late Show after the 2025–2026 season. This is supposedly due, according to CBS, to financial reasons and declining viewership, which many dispute. ABC subsequently took talk show host Jimmy Kimmel off the air, suspending him before reinstatement, after he spoke about the Kirk murder fallout during a monologue. Kimmel said that the “MAGA gang” was “desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them” and of trying to “score political points from it.”
Lost in the First Amendment firestorm have been some of Kirk’s final words. Van Jones hesitated to share the text he received from Kirk, but explained on September 20: “In the past week and a half, just watching people talk about civil wars and censorship and all this stuff coming out of his death, I just thought it was important to let people know—Don’t put that on Charlie Kirk.”
Jones added, “The last day of his life, he was reaching out to have, not more censorship, [but] more conversation, more dialogue, with somebody who, honestly, was one of his adversaries: me.”
Comedy, Free Speech, and the ‘Right to Offfend’
Published on September 25, 2025
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