The public assassination of Charlie Kirk evoked a range of responses across the country, from shock and grief to more unsettling and controversial celebrations of his death. And, as with every national controversy, the First Amendment stands to protect Americans’ right to free expression, even as the outer bounds of that protection are tested.
Consider the U.S. Attorney General’s recent suggestion that “hate speech” is not protected by the First Amendment (a view Kirk himself notably rejected). Or Jimmy Kimmel’s recent suspension from ABC (he’s now back on air), which came shortly after the Federal Communications Commission chair stated that the company should “take action, frankly on Kimmel” or face regulatory consequences. While these events have made national headlines, the same constitutional questions are surfacing at the local level, including in public schools.
Take San Jacinto Unified School District in California. After Kirk’s assassination, district teacher Jacqueline Gardner announced on social media that she would “dance on his grave.” For someone entrusted to educate students, including those who may share Kirk’s political views, this was an alarming celebration of political violence. Many demanded her immediate termination.
Superintendent David Pyle issued a statement distancing the district from Gardner’s comments, placing her on leave pending an investigation, and stressing that her words did not reflect the district’s “values, standards, or mission.” But Pyle also recognized that his staff retain First Amendment rights, and that his duty as Superintendent includes honoring those rights.
That recognition was generally correct. The Supreme Court has long held that public employees do not forfeit their First Amendment rights simply by working for government. When teachers speak as private citizens on matters of public concern, their speech is generally protected unless it causes disruption in the workplace or erodes the public trust between the school and members of its community. Whether that speech creates sufficient disruption is typically a fact-based question, and the district’s investigation will presumably assess whether this teacher’s speech crossed constitutional boundaries.
To be clear, Ms. Gardner’s speech may have crossed that line: while the Supreme Court once held that a low-level government employee could not be fired for celebrating President Reagan’s shooting, courts have also recognized the special position of trust that educators must maintain with communities, and have upheld the termination of teachers whose speech “expressed hostility and disgust against her own students”—something that any conservative-leaning student or family might understandably feel here.
While San Jacinto is right to cautiously analyze the First Amendment protections afforded to its staff, it stumbled in failing to apply its defense of free speech across the board. When Corey DeAngelis, a leading education reform advocate and vocal critic of the public school system, criticized Gardner and the district’s response on social media, he was blocked by the district’s X account. This was a textbook First Amendment violation: when government agencies use social media for official communication, their accounts become subject to constitutional safeguards, and the Constitution does not permit officials to cherry-pick who may speak based on viewpoint. Once San Jacinto’s illegal move was called out, it claimed the block was accidental, but then disabled comments across its entire account, silencing parents, residents, and community voices altogether.
This is not an isolated incident. Earlier this year, a federal judge entered a consent decree against a Kentucky school district that blocked Mr. DeAngelis after he criticized the school’s use of public resources to lobby against school choice programs. That district was compelled to train staff, maintain viewpoint-neutral moderation, and pay significant attorneys’ fees to Mr. DeAngelis’s legal counsel at the Liberty Justice Center, a nonpartisan, public-interest litigation law firm.
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Dean McGee is senior counsel and director of educational freedom at the Liberty Justice Center, a nonprofit, nonpartisan, public-interest litigation law firm representing Mr. DeAngelis.
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