Charlie Kirk Butchers the First Amendment in God’s Name

A t Newsweek, Turning Point USA’s Charlie Kirk has written one of the most foolish, self-serving, hypocritical, illiterate, and counterproductive columns I’ve read in a good long while. “The First Amendment has long been a bedrock principle of my worldview,” Kirk begins, before proceeding to demonstrate that, in fact, it has been nothing of the sort. “There are legitimate legal limits to expression,” he writes. “Some things are so objectionable — even downright evil — that they don’t merit society’s protection.” Specifically, Kirk objects to what he describes as the “one ‘substantive evil’” that “Americans can all agree to prevent: worshiping Satan.”

The Devil’s next finest trick, it seems, is to persuade us that the First Amendment doesn’t actually exist.

Fleshing out his case, Kirk proposes that:

In its 1969 decision Brandenburg v. Ohio, the Court ruled the 1919 standard too broad, and replaced it with the “imminent lawless action” test. This new test established that the state could only limit speech that incites imminent unlawful action, “that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.”

Apparently, Kirk is fine with this per se. He just thinks that he has worked out a neat exception to the rule, and that we all ought to acquiesce to it. “Satan worship,” he contends, “is not what the Founders had in mind when they extolled the ‘fruits of liberty,’” and, as a result, it must be exempted from the protections of the First Amendment. Quite why this — as opposed to anything else — crosses Kirk’s line is left unclear. He just says it, as if all Americans will agree — which, at some level, he must grasp they don’t, or he wouldn’t have written his piece in the first place.

Certainly, one can comprehend why a person might abhor Satan worshippers — especially when their idolatry intersects with abortion, as it so often does. But then most normal people would also abhor the speech involved in the Brandenburg decision that Kirk references. That case protected the right of the KKK and the American Nazi Party to make vague threats of “revengeance” against African Americans and Jews. From what he has written, we must conclude that Kirk supports that decision but opposes protecting the very same liberty when it is used to worship the Devil. Why? And under what — and whose — terms? Throughout, Kirk uses the term “substantive evils” to imply that Brandenburg conceded that some viewpoints were beyond the pale. But, of course, it did no such thing. Instead, it determined that speech of any perspective must be left alone unless it is likely to imminently incite behavior that is already against the law. There is no subjective morality test within our First Amendment jurisprudence, let alone one liable to be administered by mediocrities such as Charlie Kirk. There is no “everyone can agree” clause, either.

Ultimately, Kirk is engaged in nothing more noble than good old-fashioned special pleading. Like anyone else who inserts a “but” into his defense of free speech, he believes that he alone can serve as the national arbiter of taste. For millennia, people have debated what constitutes “true evil,” what is in the “public benefit,” and what counts as “true freedom,” “the pursuit of the good,” and “the virtuous and the beautiful.” Kirk believes that he has the answers, and that they ought to be enshrined into law. As such, he sets up what he thinks is a clever dichotomy: “God or Satan,” he asks. “To quote the old union song, which side are you on?” I know my answer. I know my wife’s answer. I know which answer I hope the majority of Americans would give. But these answers are none of Kirk’s business. They are a civil, not a criminal, matter. If a free person replies, “Satan, actually,” it has nothing to do with the state.

And when the state gets involved, nevertheless? Things turn ugly fast. Like every subliterate censor, Kirk repeatedly confuses slogan for detail. “The Supreme Court,” he writes, “spent decades figuring out where to draw the line” and concluded that “‘you can’t yell fire in a crowded theater.’” Evidently, Kirk knows that this is a “paraphrasing of Justice Oliver Wendell Holmes, Jr.’s opinion in the United States Supreme Court case Schenck v. United States in 1919,” and yet he seems blissfully unaware that that case did not actually involve any fires or shouting or crowded theaters (or devils, for that matter), but dealt with a pacifist protester who was arrested and prosecuted for handing out leaflets that encouraged peaceful resistance to the draft during World War I.

One might have thought that a man who claims to “support free speech, and free religious exercise, both in spirit and in the letter of the law,” and who has “spent years railing against leftist censorship in all areas of society, especially on college campuses and social media” would have thought twice before taking the side of the Wilson administration against a bona fide political prisoner. But in order to think twice, one first has to think once — and, on this topic at least, it is not clear that Kirk has even gotten that far.