Understanding Free Speech in the Aftermath of Charlie Kirk’s Assassination

Charlie Kirk, a popular conservative activist and media personality, was assassinated on September 10, 2025, while speaking at a Turning Point USA event at Utah Valley University. This event, like all other senseless murders, was tragic. As Americans grapple with the implications of this tragedy, the national conversation has turned not only to political violence, but also to whether free speech rights exist in a private workplace setting.

A Divisive Public Reaction

Vice President JD Vance guest-hosted Kirk’s popular radio talk show and urged listeners to stand against those celebrating Kirk’s death. “When you see someone celebrating Charlie’s murder,” Vance said, “call them out. And hell, call their employer.”

That statement resonated across social media. In the weeks that followed, multiple companies issued statements or took disciplinary action against employees who made inflammatory remarks about the assassination. Notable examples include Microsoft, Office Depot, Delta Airlines, and The Washington Post. These decisions sparked a larger conversation about employee speech and the legal limits of political expression in the workplace.

Perhaps the most high-profile incident involved comedian and talk show host Jimmy Kimmel. On air, Kimmel criticized conservatives for “trying to score political points” off the tragedy, and joked about President Trump’s public response, comparing it to how “a four-year-old mourns a goldfish.” The remarks drew swift backlash. ABC suspended Kimmel, and in response, President Trump publicly supported stronger repercussions, including revoking the network’s broadcast license.

Federal Communications Commission (“FCC”) Chair Brendan Carr, a Trump appointee, followed suit. He warned ABC and parent company Disney that the FCC could take action. “We can do this the easy way or the hard way,” Carr said, in comments widely interpreted as a direct threat tied to Kimmel’s political speech. This incident highlights two distinct issues:

1. Whether an employer can discipline an employee for exercising their right to free speech in the workplace; and
2. Whether the Federal Government can threaten an employer with negative repercussions because of an employee’s speech.

The First Amendment and the Role of Government

At the heart of this controversy is the First Amendment of the US Constitution. While many Americans believe it protects all forms of speech in any context, that is not true. The First Amendment prevents government actors from censoring or punishing most speech. However, the First Amendment does not apply to private employers.

Employers in the private sector retain broad discretion to set standards of conduct for employees, including what those employees say. This includes discipline for off-duty speech that reflects poorly on the organization or undermines workplace culture. Examples include:

1. Adam Smith, a CFO at a medical supplies company, was terminated by his employer in 2012 after he posted a video of himself berating a Chick-fil-A drive-thru employee during the height of controversy over the company’s stance on same-sex marriage.
2. In 2013, Justine Sacco, a PR executive at InterActiveCorp, was fired for an offensive tweet about AIDS. She posted it right before her plane took off, and she was terminated before her plane landed in South Africa.
3. In 2018, ABC terminated Roseanne Barr after she made racist remarks about former Obama advisor Valerie Jarrett.
4. James Gunn was fired by Disney in 2018 after old tweets resurfaced in which he made inappropriate jokes about pedophilia and rape. He was rehired a year later.
5. In 2020, Amy Cooper, a white woman, was filmed calling 911 on a black male birdwatcher in Central Park, falsely claiming he was threatening her. She was later fired by her employer, Franklin Templeton, for racism.
6. A Nasdaq employee was terminated in 2025 for social media posts about the assassination of Charlie Kirk. The company said the posts violated its zero-tolerance policy toward the celebration of violence.

What distinguishes the previous cases from the current controversy is the absence of government involvement. In those instances, no government entity pressured the companies to take action. Private employers are generally free to regulate employee speech as they see fit. Each of the companies mentioned acted independently, guided by their organizational values, reputational concerns, and internal policies. The actions taken by these companies were completely legal. If ABC’s actions were similarly independent, then no legal issues arise. As Kimmel’s private-sector employer, ABC is entitled to discipline him for his speech at its discretion.

However, if a government official, like Carr, used his regulatory power to pressure ABC to punish Kimmel, legal red flags are raised. In National Rifle Association v. Vullo, the Supreme Court ruled that government actors cannot use regulatory threats to coerce private entities into cutting ties with disfavored individuals or viewpoints. That kind of pressure, even if informal, can amount to unconstitutional government coercion. It’s important to note, though, that no such allegations have been made in connection with Kimmel’s case.

As an Employer, Your Right to Control Political Speech is Broad!

In today’s highly polarized environment, employers face a broad range of options when confronting public controversies: they can align with the prevailing viewpoint, oppose it, or remain neutral. The First Amendment poses no limitation on an employer’s choice in this setting.

However, certain states impose legal constraints on how private employers may respond to employee political conduct. For example, states such as California and New York have statutes that prevent employers from disciplining employees for lawful off-duty behavior, including participation in political activity. Moreover, jurisdictions like Illinois, Louisiana, and Utah specifically prohibit political discrimination based on political affiliation or political belief  in certain contexts. In those states, disciplining an employee for engaging in political speech, so long as it occurs within the protected context (which can vary by state), may not be permissible.

Ultimately, employers must weigh whether they want their political or ideological views to be publicly associated with their brand, and whether they are prepared for the public and business responses that may follow. Some companies, such as Chick-fil-A and Hobby Lobby, have openly expressed religious and conservative positions, such as closing on Sundays for religious observance and expressing opposition to abortion or same-sex marriage. Others, including Ben & Jerry’s, Lyft, and Target, have publicly supported issues related to immigration, the environment, and LGBTQ+ rights. Meanwhile, brands like Microsoft tend to adopt a more measured or neutral approach. As an employer, your choices are broad.

Best Practices for Employers Wanting to Control Political Speech

Employers should consider implementing the following.

1. Identify your organization’s stance on political speech.

Decide what level of political expression your organization will allow. Will your workplace align with leadership’s views, permit employees to express any political opinion, or remain neutral on such matters? Whatever your choice, ensure that speech in the workplace does not cross into unlawful discriminatory conduct related to age, race, religion, sex, or other protected characteristics.

• Create and draft policies.

Once your stance is established, articulate it clearly and in writing. Without clearly written and consistently enforced policies, your organization becomes vulnerable to claims of bias, unfair treatment, or discrimination.

Actionable steps include:

1. Develop a comprehensive employee handbook that includes a Code of Conduct, acceptable use of social media, and clear expectations around public communication;
2. Document infractions and the rationale for any disciplinary action to protect the organization from potential claims of retaliation or discrimination; and
3. Review policies regularly. Keep up with evolving social norms, legal developments, the digital behavior of your employees, and the effectiveness of your policies.

• Educate and train employees.

Many employees and supervisors mistakenly believe they have a blanket right to free speech. As explained above, this is not the case, and this misunderstanding should be addressed.

Actionable steps include:

1. Communicate the organization’s position on political expression so employees understand expectations and boundaries;
2. Train employees on the limits of First Amendment protections in private employment, emphasizing that while expressing personal views are protected in society, they are not immune from consequences at work;
3. Equip managers to identify inappropriate conduct early and to apply rules consistently, regardless of political or ideological leanings; and
4. Offer scenario-based training to help leadership understand how to respond when controversial issues arise, especially during periods of heightened tension.

• Consult legal counsel early.

Political speech, employee rights, and free speech issues are complex. Mistakes can be costly both legally and reputationally.

Actionable steps include:

1. Involve legal counsel early when assessing whether to discipline an employee for political speech, especially if the speech relates to high-profile or controversial issues;
2. If your business faces political retribution or government pressure in response to speech or stance, seek legal counsel to decide the best way to respond; and
3. Understand state-specific laws. Make sure you know whether your state offers protections for political activity outside of work and political speech at work.

Conclusion

The assassination of Charlie Kirk became a defining moment for how our institutions respond to speech in moments of national division. Whatever your political views may be, make sure your company is prepared to address the resulting political speech you may see in your workplace.

Brody and Associates regularly advises management on compliance with the latest local, state, and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.