Brendan Carr and Ted Cruz Don't Think Charlie Kirk's Murder Justifies Speech Restrictions
Rand Paul, who called for "a crackdown on people" who celebrated the assassination, was less careful in distinguishing between private and government action.
Since President Donald Trump appointed him as chairman of the Federal Communications Commission (FCC), Brendan Carr has deviated from his avowed commitment to the First Amendment in several notable ways. So it is surprising but encouraging to see Carr throw cold water on the notion that the government should try to suppress negative online comments about conservative activist Charlie Kirk in the wake of his assassination last week.
"I think you can draw a pretty clear line, and the Supreme Court has done this for decades, that our First Amendment, our free speech tradition, protects almost all speech," Carr said at Politico's AI and Tech Summit on Tuesday. While the Court has said incitement to violence can be punished in certain circumstances, he noted, that's "a relatively small category of speech," and there are "existing laws on the books that deal with that."
Carr has previously suggested that the FCC might try to limit liability protection for social media platforms under Section 230 of the Communications Decency Act. But when Politico's Alex Burns asked him whether such interpretive regulation seems "more urgent" in light of Kirk's murder, Carr said his main concern is not excessive tolerance for inflammatory rhetoric but the opposite: heavy-handed content moderation, which he sees as a threat to freedom of speech.
"Over the years," Carr said, "we saw a lot of abuses. We saw individual Americans participating in the digital town square that were getting censored purely for protected First Amendment speech, for diversity of viewpoints on religious or medical issues." He added that he was "pleased to see" a "course correction within the social media community," including policy changes at X and Facebook, that has "embraced, or re-embraced, the idea of free speech online."
Carr, in short, is still loath to acknowledge that the First Amendment protects the editorial discretion of social media companies, which he has erroneously portrayed as a threat to Americans' constitutional rights. But he at least seems to be applying his preference for less moderation even-handedly, which in the current debate about online speech and political violence means tolerating the "radical left" rhetoric that Trump claims is "directly responsible for the terrorism that we're seeing in our country today."
At the same conference, another Trump ally, Sen. Ted Cruz (R–Texas), likewise defended the First Amendment rights of his political opponents. "We have seen…far too many people celebrating Charlie Kirk's murder," he said, adding that teachers and professors who have done that "should absolutely face the consequences for celebrating murder." But those consequences, he said, should take the form of "naming and shaming," which he described as "part of a functioning and vibrant democracy." The First Amendment "absolutely protects hate speech," he noted. "It protects vile speech. It protects horrible speech. What does that mean? It means you cannot be prosecuted for speech, even if it is evil and bigoted and wrong."
That much may seem elementary. But it is a welcome reminder in a political context where even the attorney general seems confused about the constitutional status of "hate speech."
In a Fox Business interview on Tuesday, Sen. Rand Paul (R–Ky.) alluded to the distinction between private and government responses to offensive speech, but his comments were ambiguous enough that an uncharitable viewer could easily interpret them as approval of the latter. "I was assaulted six, seven years ago, attacked from behind, had six ribs broken and part of my lung removed, and still online, on a daily basis people say they wish that it would happen to me all over again," he said, referring to a 2018 attack by an irate neighbor. "And by sort of making light of what I suffered, they are encouraging other people to do it. That ought to be taken down, and social media ought to be able to take that down."
Paul also noted that people who endorse violence against their political opponents could lose their jobs. "People say, 'Oh, people have a right to say things,'" he said. "Well, actually they don't necessarily have a right to say things. Many people have in their contract what we call a morals clause…or a conduct clause." And "if you're in the military, you have a conduct code that you have to adhere to in your speech and the way you present yourself to the public." Paul added that "I think it is time for this to be a crackdown on people," which he said would be "perfectly legal and legitimate, particularly if it's part of the contract process."
Paul's comments are not a model of clarity. But contrary to what some of his critics claim, I don't think they amount to a repudiation of the First Amendment.
Saying that certain inflammatory posts "ought to be taken down" and that social media platforms should be free to do so is not the same as saying the government should mandate that result. Nor is Paul's endorsement of professional penalties, which he emphasizes would be "legal and legitimate" if done under applicable contract clauses, tantamount to recommending legal punishment, although it may be hard to reconcile with conservative complaints about "cancel culture." The same goes for his statement that "these people need to be shunned."
More problematically, Paul referred approvingly to university codes of conduct that might be violated even by constitutionally protected speech. He did not acknowledge the First Amendment constraints on state-run universities that punish students for violating such rules.
Paul did eventually mention potential First Amendment concerns, saying, "We have to be wary of where it leads to, so it doesn't lead to speech problems." He nevertheless could and should have made it clearer that the "crackdown" he has in mind does not entail the sort of government restrictions that Carr and Cruz rightly rejected.