09/12/2025
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Did Charlie Kirk Engage in Hate Speech?
By: Mark Eiglarsh, Esq.
The murder of Charlie Kirk has sparked a lot of discussion. I find myself disagreeing with much of what I’m hearing. To be candid, I also disagreed with many of the things Charlie Kirk himself said. Still, one point troubles me: the claim that his words amounted to “hate speech.” While people certainly have a First Amendment right to label it that way, their claim is legally incorrect. A clearer understanding of what “hate speech” means under the law would be helpful here.
The Supreme Court addressed this issue directly in its landmark 1969 decision Brandenburg v. Ohio. That case involved Clarence Brandenburg, a Ku Klux Klan leader convicted under an Ohio law after advocating violence as a way to achieve political change. His racist speech, captured by the media at a Klan rally, urged his followers to seek “revengeance” against the government.
The Court struck down Brandenburg’s conviction, holding that the Ohio law was unconstitutional because it punished mere advocacy of illegal conduct without proof that the speech was both intended to and likely to incite imminent lawless action. From that ruling came a two-part test that still governs today:
1. The speech must be directed to inciting or producing imminent lawless action; and
2. The speech must be likely to incite or produce such action.
By that standard, none of Charlie Kirk’s statements qualify as unlawful hate speech. His words may have been offensive, even infuriating to some, but there’s a crucial legal difference between speech that provokes anger and speech that actively incites imminent violence. Some may have found his speech outrageous or even offensive speech yet it is still protected under the First Amendment unless it meets the Brandenburg test.
I recognize that the “Court of Public Opinion” often applies a looser standard, sometimes ignoring Supreme Court precedent, logic, and even common sense. That’s their right. But calling something “hate speech” doesn’t make it so under the law.
