The Perverse Incentives for Snitch-Tagging Teachers Who Criticized Charlie Kirk

Under current First Amendment jurisprudence, more targeted harassment means it's more constitutional to fire a government worker.

It's often said that the First Amendment exists to protect unpopular speech. Benign comments about the weather or statements in support of things everyone already likes aren't likely to be the subject of government censorship.

In the case of First Amendment protections for government workers' off-the-job speech, this dynamic is reversed.

Public employees have robust protections against being fired for such speech, unless it proves exceptionally unpopular.

This feature of First Amendment jurisprudence, and the bad incentives it creates for cancel culture campaigns, is on full display following the horrific assassination of Charlie Kirk last week.

In the wake of the conservative influencer's murder, a lot of people said unkind, uncharitable, and even obscene things about the man, including, in some cases, explicit praise for his assassination.

In a country where some 22 million civilians are employed by the government, the pool of people who've made nasty comments about Kirk naturally includes some public sector workers.

Public school teachers seem to be overrepresented in this demographic. They've become a specific target of conservatives' cancelation campaigns.

Unlike most private employees who can be fired at will, government employees have robust protections against being fired for their off-the-job speech.

As Eugene Volokh detailed in a post at The Volokh Conspiracy shortly after Kirk's death, government employees can only be disciplined for their speech when that speech is said as part of their job duties, the speech is not a matter of public concern, and the damage of the speech to the government's own ability to do its job is outweighed by the benefit of the speech.

Volokh stresses that these protections even cover comments supporting violence, citing the U.S. Supreme Court's decision in Rankin v. McPherson, in which a majority of justices ruled that a police department employee's firing for praising the Ronald Reagan assassination in a private conversation violated the First Amendment.

The facts of that case would seem to offer a pretty close parallel to public school teachers who praised Kirk's assassination on social media. Their speech was not made on the job, and speech about Kirk's assassination is obviously a matter of public concern.

At first blush, this would suggest that even government employees who explicitly praised Kirk's assassination have First Amendment protections against being fired for that speech, however distasteful.

Whether or not they can, in fact, be fired turns on how much their comments disrupt government operations.

Consequently, the more outrage that can be directed at a particular public worker's employer, and the more of a headache retaining that worker becomes as a result, the less the First Amendment will protect them from losing their job.

That creates a powerful, toxic incentive to gin up anger at individual government workers as a means of erasing First Amendment protections they have for off-the-job speech.

Organic outrage about a public employee's private statements from people who heard them directly and have to interface with that person is one thing.

In the case of comments made on social media, people who would never have to deal with a government worker can see their intemperate thoughts and use them to get them fired.

This encourages Kirk's supporters to actively go hunting for comments they find offensive. The harm created by those statements becomes almost self-inflicted.

It's hard to imagine a better recipe for creating cancel culture mobs.

Over at National Review, Michael Brendan Dougherty writes that "the critique of cancel culture wasn't intended to protect all speech from normative judgment, but to preserve the necessary space for democratic deliberation and contestation."

Professionally penalizing people for reveling in Kirk's assassination, he argues, is distinct from going after people for merely expressing a negative view of him.

That's a reasonable distinction to draw. But it misses the fact that cancel culture pile-ons are not particularly discerning once they get going. Already, we're seeing efforts to identify people who literally celebrated Kirk's death morph into efforts to get people fired for merely posting something critical about him.

Kirk's online defenders have snitch-tagged the employers of government workers over social media posts saying they don't care about the assassination, that they didn't like Kirk even as they condemn his assassination, and even criticizing Kirk prior to his assassination.

With enough online outrage, even relatively benign critical comments could potentially become firing offenses.

This is particularly concerning given that government officials themselves are urging people to be outraged.

"So, when you see someone celebrating Charlie's murder, call them out and, hell, call their employer. We don't believe in political violence, but we do believe in civility," said Vice President J.D. Vance while guest-hosting Charlie Kirk's podcast yesterday.

Texas' education commissioner has encouraged school superintendents to report teachers' "inappropriate comments" to state officials, as have the top education officials in Florida and Oklahoma.

There's always been the thicker critique of cancel culture made by folks like Reason's Robby Soave, who condemned efforts to go hunting for the worst comments made by nonpublic figures in the heat of the moment to their small social media followings.

It makes for a less vindictive world and more robust discourse when we can agree to avoid massive pile-ons of even repugnant comments made in that context.

Kirk was undoubtedly a polarizing figure. The strong feelings, both negative and positive, that he elicited in people are one reason his murder has become such a huge public conversation.

It's inevitable in that context that some people will say intemperate, mean-spirited things about the man.

It's foolish to trust online snitch-taggers to be judicious in determining who they're going to try to get fired, particularly when the more outrage they can generate serves to route around First Amendment protections for government workers' speech.