AILSA CHANG, HOST:
Let me read you a quote. "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." That quote was written by Charlie Kirk on X last year, but since he was murdered last week, the presidential administration that Kirk supported has announced a wide range of actions or threats against people and institutions they say are celebrating Charlie Kirk's death. So what exactly does the First Amendment protect against here? Well, Amanda Shanor teaches constitutional law at the University of Pennsylvania and is formerly a lawyer for the American Civil Liberties Union and joins us now. Welcome.
AMANDA SHANOR: Thank you so much. It's great to be here with you today.
CHANG: Great to have you. OK, so this administration says it's going after speech that crosses a line, and I want to be specific here. Attorney General Pam Bondi said this week that the Justice Department will target people who utter hate speech. And then she later clarified on X saying, quote, "hate speech that crosses the line into threats of violence is not protected." So let me ask you, what does the First Amendment allow the government to do to regulate cases of so-called hate speech?
SHANOR: Well, so first, I'll say the United States has the strongest speech protections of anywhere in the world. And second, I'll say that Charlie Kirk was completely right. There's not a category of hate speech for constitutional purposes. And what we might call hate speech in the public sphere receives the same constitutional protection as the most beautiful religious sermon or the most inspiring expression of patriotism. And that's something that the Supreme Court and justices of all ideological stripes have said time and time again.
CHANG: But to be clear, the First Amendment does allow the government to regulate certain cases of speech, correct?
SHANOR: Certainly, though the Supreme Court has defined what those spaces are oftentimes quite narrowly. So, for example, incitement - the First Amendment doesn't protect incitement to violence, but the Supreme Court has defined it saying that the speaker has to both intend to and be likely to incite imminent lawless action. Or, for example, defamation - right? - you can't defame somebody. But in cases against a public figure, the plaintiff has to prove actual malice, meaning that they are knowingly spreading false information.
CHANG: If the plaintiff is a public figure.
SHANOR: Right.
CHANG: OK. What about cases where the government wants to pressure private employers to fire workers for speech it does not like? For example, let's be very specific here. Vice President JD Vance, when he was guest-hosting Charlie Kirk's podcast this week, suggested that listeners who hear people celebrating Charlie's murder should contact those people's employers. Let me ask you, under the First Amendment, how much pressure can the federal government impose on private employers to penalize speech that the federal government does not like?
SHANOR: So first, I'll say the First Amendment only applies against governments, the federal government and other governments. It doesn't apply against private employers. So a private employer can fire you for whatever reasons it can, OK? But it's just as unconstitutional for the government to use a - go through a third party to suppress speech it dislikes as it is for the government to directly suppress your speech.
CHANG: What about the FCC's role specifically in this context we're talking about? - because I'm going to bring up another example, Jimmy Kimmel. His late-night talk show is off the air indefinitely after he made comments related to Charlie Kirk's death. And the chairman of the FCC, Brendan Carr, encouraged that decision on a right-wing podcast, has repeatedly asserted the FCC's ultimate control over broadcast licenses and applauded the decision after it was made. So what do you make of that kind of pressure that the FCC is placing on ABC and ABC affiliates?
SHANOR: I make of it that it's unconstitutional. The court has been - has unanimously held even recently that the government can't do indirectly what it's barred from doing directly. And so just like the government couldn't kick Kimmel off the show directly, it can't indirectly try to coerce the networks to fire him.
CHANG: That said, there are cases in which the FCC can revoke or suspend broadcast licenses, right?
SHANOR: Oh, completely - but even in a recent case involving the NRA, the court was very clear that even if a governmental entity could lawfully take whatever the, you know, harmful action is against the person, it can't do that for censorial reasons in order to coerce the suppression of Kimmel or anyone else's speech.
CHANG: Amanda Shanor, law professor at the University of Pennsylvania, thank you very much.
SHANOR: Thanks so much for having me. Transcript provided by NPR, Copyright NPR.
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