The murdered Charlie Kirk was a martyr to free speech and the belief in the power of reasoned argument to overcome lies and evil. “Hate speech does not exist legally in America,” he wrote on X in May of 2024. “There’s ugly speech. There’s gross speech. There’s evil speech. And ALL of it is protected by the First Amendment.”
There is much to admire in Charlie’s devotion to those principles, but his murder put those principles to the test as the basis for a free society and showed that they fail. For those of us with the intellectual and moral courage to face our post-September 10th reality, this so-called “First Amendment absolutism” died with Charlie Kirk.
The absolutist understanding of the First Amendment was born from a mid-twentieth-century alliance between anti-anti-Communist progressives and the former Klansman Justice Hugo Black. Both had personal stakes in ensuring that a free society was disarmed of the legal ability to resist hateful lies.
In a series of decisions unanchored in the text of the Constitution and defying 150 years of precedent, the Supreme Court, beginning in the 1940s, adopted an absolutist free speech position based on bad social theory. One assumption, which turned out to be utterly false, was that truth could win over hateful lies in the marketplace of ideas without the assistance of public power. Another assumption, equally false, was that if the government and government schools could be prohibited from indoctrinating patriotism and respect for our law and our institutions, they would not be captured for indoctrination in hatred of our country and disrespect for its ways.
In the world, the free speech absolutists have imposed on us by judicial fiat, the collapse of honor allows mainstream figures to broadcast hateful lies. These hateful lies incite murder, as they are intended to do—to quote the transgender conservative Blaire White, “They call you a Nazi so they can kill you.” When the murderers act on what they hear, we are told by “principled conservatives” and “classical liberals” that nothing can be done because “hate speech is free speech.”
“First Amendment absolutists” invariably erase the first five words from the First Amendment. Nothing in the actual First Amendment, which begins “Congress shall make no law,” prohibits state hate speech laws or federal assistance in enforcing them.
Such “First Amendment absolutists” would therefore more honestly be renamed “Incorporation Salafists.” They claim that the Fourteenth Amendment’s guarantee of “equal protection” means that the First Amendment binds the states (which it does not mention) as much as it binds the Federal government it was intended to restrict. The effect of this absurd inversion is, in place of guaranteed equal protection, to deny to all of us the “protection of the laws” from hateful libel and murderous incitement.
Reversing this jurisprudential nonsense does not make such state hate speech laws prudent, effective, or wise, but it does make them constitutional if we aim to apply the Constitution we actually agreed to and not the perversions the judges have foisted on us. Censorship isn’t easy and can easily backfire. In fact, insofar as we outsource our thinking and perception to the media, censorship is as delicate as more literal forms of brain surgery. But if we are to defeat the wave of lies, incitement, riot, assault, and murder that powerful progressive and mainstream leaders and their nonprofit, academic, and media allies have unleashed on us, we need to consider the use of every tool constitutionally available to governments. The right to speak ought not to extend to a right to indoctrinate or direct assassins.
Charlie Kirk gave his life trying to reason peacefully with those who violently disagreed with him. We owe it to his memory to learn from his murder. A society that cannot or will not use the law to stop hateful lies and incitement to political murder is a society that has lost the ability to reason together.
The force of the law must be applied carefully, thoughtfully, and without flinching to make every part of this country, red and blue, taverns and campuses, a space where peaceful debate is once again possible. In the aftermath of September 10th, all people of goodwill must come together to make the haters renounce violence—and listen.