It’s been an instructive few weeks, for those who care to learn, about the First Amendment and its protections.

For those who didn’t have the benefit of a communications law and ethics course in college (a required course in the College of Communications at Arkansas State University when I studied there), or an introduction to constitutional law (probably about a quarter to a third of the students in that particular class were communications majors as well, so we often had our own in-jokes there), here’s the short version: The First Amendment lays out the freedoms of speech, press, assembly, petition and religion, with the explicit direction that Congress cannot make laws that prohibit or abridge those freedoms.

The Supreme Court has interpreted that to mean government in general (elected officials, etc.), whether federal, state or local.

So what does that mean in light of calls from the president and others in his administration to fire Jimmy Kimmel for a comment he made about MAGA and the president’s actions regarding Charlie Kirk (and before that, Stephen Colbert for generally being a thorn in his side, and calling the Paramount settlement with him a “big fat bribe”)? For that matter, what about our own governor and attorney general (and lieutenant governor too) and their calls for the firing of a UALR law professor for her social-media comments?

Looks to me like a government imprimatur on free speech, which is clearly forbidden by the First Amendment.

I’ve talked many times before about free speech, and how only certain speech is not protected. Among them, according to the Foundation for Individual Rights and Expression, are incitement (“directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” per Brandenburg v. Ohio, 1969), true threats (“those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” per Virginia v. Black, 2003), fighting words (face-to-face communications that would obviously provoke an immediate reaction), and obscenity.

Someone merely voicing an opinion with which you disagree is most likely protected by the First Amendment, even if that opinion is, to your mind, vile and disgusting. The statement, “If I’m dealing with somebody in customer service who’s a moronic Black woman, I wonder is she there because of her excellence, or is she there because of affirmative action?” is just that to me, but it’s protected speech. (It’s also Charlie Kirk’s own words, from a Jan. 3, 2024, episode of his podcast. Believe me, there are worse examples I could have pulled; the episode itself, which featured Heather Mac Donald, had me cringing very quickly. His podcast website isn’t very user-friendly, so I tracked down the quote in question elsewhere.) Likewise, celebrating on social media the death of someone you don’t like is also protected by the First Amendment; ill-advised and abhorrent (decent people don’t celebrate death), but still protected.

The First Amendment, though, doesn’t protect you from the consequences of your words or actions. As I’ve often noted, all of our rights come with responsibilities, and we’re expected to exercise those rights with care or face the consequences (well, except for Second Amendment rights for reasons that make no sense to me or most thinking people). A private employer may decide that that post you put on Facebook or Instagram or wherever is in bad taste and reflects poorly on them, even if you’re not acting as a representative of that employer.

Imagine that: Something you do when you’re not at work could reflect poorly on whoever employs you! It’s almost like you’re supposed to be a responsible adult and take responsibility for what you say and do no matter if you’re on the job or not! It’s like we’re living pre-social media … 👀

This is why you should always carefully consider what you post publicly. If you have no worries about employment, feel free to post what you want, whether it’s political screeds (if you do this anonymously as a troll, be careful, since your true identity can be found if someone really wants to find it) or photos/videos of debauchery. Just remember that it may come back to haunt you in future job searches (or your current job). Those of us who need a paycheck will continue to be more measured in what we post (plus, use those privacy settings, and be selective with friend requests!). There’s also the danger of doxxing by people who don’t agree with you and who are eager to take you down, so think before you post.

Where we get into trouble, as demonstrated in the cases of Kimmel and law professor Felicia Branch (who posted that she “will not pull back from CELEBRATING that an evil man died by the method he chose to embrace” and that Kirk “died how he lived—with violence”), is when government officials openly call for someone to be fired or otherwise pressure private employers to “do the right thing.” That’s prohibited by the Constitution. Members of government are free to express their opinions about what was said or done by someone with whom they disagree (i.e., “That was a horrible thing so-and-so said”), but they can’t really urge or outright order that action be taken against them. (In the interest of full disclosure, Branch replaced a friend of mine who just retired from UALR, and the situation has created an issue for her.)

Sen. Ted Cruz (hardly a left-wing firebrand) said last week that the threat from FCC Commissioner Brendan Carr to revoke broadcast licenses (“We can do this the easy way or the hard way. These companies can find ways to change conduct, to take action, frankly, on Kimmel, or there’s going to be additional work for the FCC ahead.”) was “dangerous as hell.”

On his podcast Friday, Cruz said, “That’s right out of ‘Goodfellas.’ That’s right out of a mafioso coming into a bar, going, ‘Nice bar you have here. It’d be a shame if something happened to it.’”

Some fellow Republicans took the opportunity, in the discussion and vote on Rep. Nancy Mace’s failed House censure resolution on Rep. Ilhan Omar for social media comments on Kirk’s murder, to note that even reprehensible speech is protected in most circumstances. California GOP Rep. Tom McClintock stated, “A free society depends on tolerating ALL speech—even hateful speech—confident that the best way to sort good from evil is to put the two side by side and trust the people to know the difference.”

I know I can tell the difference, as can many others, but I’m no longer confident that that many people care, considering how badly politics has infected our daily lives, especially in the social-media age (more reason to take a social-media break at least once a week). Reading an exchange on Facebook the other day between a level-headed friend back home and a MAGA adherent made me truly sad for the world and the demise of true debate (which Charlie Kirk had a hand in, despite beliefs to the contrary; while on the surface it may have looked like he was inviting real debate, those events {I can’t really call them debates] were not curated in good faith, and were edited online to make him look like he was always the winner and his opponents were clueless).

The big takeaway here: Those in government need to be careful not to overstep the boundaries laid out in the Constitution, lest it appear that they’ve decided that the Constitution and the rights it guarantees to all of us just don’t matter anymore. If that happens, we won’t be living in the land of the free and home of the brave anymore. Then again, with so many lost in hyperpartisan hysteria, we might already have left the building.

I’ll leave the last word to Cruz, again from his Friday podcast, and food for thought: “If the government gets in the business of saying, ‘We don’t like what you, the media, have said, we’re going to ban you from the airwaves if you don’t say what we like,’ that will end up bad for conservatives.”