The Assassination of Charlie Kirk and the First Amendment

Since the assassination of Charlie Kirk, groups have started taking screenshots of people’s comments celebrating his death or calling for more violence, then sending them to employers to try to get those individuals fired. Critics argue that this goes against the First Amendment. The real question is: what does the First Amendment actually protect?

The First Amendment says:

“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.”

According to Merriam-Webster, “abridging” means “to diminish or reduce in scope.” Despite the famous saying that “you can’t yell fire in a crowded theater!” the reality is, you sometimes can.

In Snope v. Brown (2025), the Supreme Court quoted Bianchi v. Brown (2024, 4th Circuit Court of Appeals), noting that some types of speech are not constitutionally protected, such as “libel, incitement, true threats, fighting words, or falsely shouting fire in a crowded theatre.” Although both Snope and Bianchi were primarily about the Second Amendment, the courts cited these categories to reaffirm the long-standing principle that the First Amendment does not cover all forms of expression. In Bianchi, the court noted that the First Amendment was written in a historical context where laws and social norms already restricted certain types of speech, since those forms of communication did not advance the core purposes the right to free expression was meant to safeguard. In short, not all speech is protected, and not all speech serves any constitutional purpose. That brings us back to the phrase “shouting fire in a crowded theatre.” Where does it actually come from?

In Schenck v. United States (1919), Charles Schenck, the general secretary of the Socialist Party during World War I, oversaw the printing and distribution of thousands of leaflets urging men to resist the draft. The leaflets called conscription unconstitutional and oppressive, encouraging readers to assert their rights and oppose the draft. Schenck and his associate Elizabeth Baer were indicted under the Espionage Act of 1917 for conspiring to obstruct military recruitment and for using the mails to distribute the material. They claimed First Amendment protection, but the Supreme Court upheld their convictions. Surprising as it sounds, this is the case where “shouting fire in a crowded theatre” came from.

Justice Oliver Wendell Holmes wrote:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”

What Holmes meant is that for speech to be protected, it can’t create a panic or have the same practical effect as physical force. Words, in some circumstances, can act like actions. In those situations, courts can step in with an injunction (a court order stopping the speech), because the words themselves interfere with legal rights or lawful processes.

The Court went on to explain that in every case, the key issue is whether the words are spoken in circumstances that create a clear and immediate danger of harm that Congress has the power to prevent. This depends on how close and how serious the danger is. During wartime, for example, words that might be harmless in peacetime can be dangerous enough to hinder the nation’s efforts. In that context, the Court said such speech was not protected. This became known as the clear and present danger test.

Decades later, the Court changed direction. In Brandenburg v. Ohio (1969), the Supreme Court abandoned the Schenck test. Instead, it announced a stricter rule that still governs today:

“Speech may only be punished if it is (1) directed to inciting or producing imminent lawless action and (2) likely to incite or produce such action.”

This is called the Brandenburg test. It means incitement, urging people to commit immediate unlawful acts, is not protected. The test requires both intent (the speaker is directing people to lawless action) and immediacy/likelihood (the unlawful action is likely to happen right away). Importantly, the unlawful act does not have to occur; the focus is on the speaker’s intent and the likelihood of imminent harm.

Under this standard, the government has a much tougher time punishing speech. Under Schenck, the government could restrict speech that posed more general or distant risks, especially in wartime. Under Brandenburg, the government can only step in when speech is both aimed at causing and likely to cause immediate lawless action. This shift makes it much harder for the government to suppress speech and provides stronger First Amendment protection.

So how does this apply to people saying they want violence against conservatives to continue or celebrating the assassination of Charlie Kirk? Under the Brandenburg test, comments like “I hope violence against conservatives continues” or “I’m glad Charlie Kirk was assassinated,” while offensive and disturbing, are still protected. They’re expressions of opinion or approval, not direct incitements to immediate unlawful action.

But here’s the key: the First Amendment only limits the government, not private employers. If your boss fires you for what you post online, that is not a First Amendment violation. Unless you have a contract, union protection, or live in a state with specific laws about off-duty conduct, private employers are generally free to discipline, suspend, or fire employees for their speech.

There are other doctrines worth mentioning, like the rule that “true threats” (such as threatening the President) are not protected, and the special rules that apply to government employees, but those are topics for another day.

The bottom line is this: you can be fired for things you say online, and that does not violate the First Amendment. The First Amendment protects you from government punishment, not from the personal or professional fallout of your words.