For those who have followed the furious debates over free speech for the past decade, hearing right-wing commentators laud a culture of consequences, as if it were something they just invented, brings to mind the Yiddish word chutzpah. For years, people on the left have insisted that freedom of speech does not mean freedom from consequences, including calls for professors to be disciplined or for television hosts to be fired. The right has called such demands the overheated frenzy of a politically correct, self-righteous mob.
Now, champions of Charlie Kirk argue that the suspension of late-night host Jimmy Kimmel and the firing of journalists and academics for voicing opposition to Mr. Kirk’s views are a matter of just deserts and no affront to free speech. The turnabout offers dispiriting evidence for Nat Hentoff’s 1992 book, “Free Speech for Me — But Not for Thee.” The columnist’s point was that there are few, if any, true believers in free speech as a societal value untainted by the stain of politics. A government-approved, ideologically driven culture of consequences for disfavored speech will further erode the already precarious place of free speech as an American constitutional right and cultural value.
Of course, speech carries consequences. In authoritarian societies, speech is not free precisely because voicing dissent can lead to arrest, jail or torture. No defender of free speech could justify such draconian reprisals. By contrast, being booed by an audience or chastised in a comments section are consequences for speech we accept as part of the rough-and-tumble of an open society. Having no consequences for speech allows hatreds, falsehoods and quackery to overtake reasoned discourse, a circumstance that characterizes our current social media landscape. The question is not whether consequences should flow from expression but rather: What are they, why are they being imposed, by whom and with what effect?
A great deal depends on context. A monologue on late-night television is not the same as witness testimony in court. Hyperbole is endemic to satire; to impose strict fact-checking requirements on comedians would be like subjecting modern dance to the formalities of ballet, destroying the form in the process.
In New York City in 2017, a math teacher at a private high school was fired for raising his arm at an oblique angle during a geometry class and, upon contemplating it, saying “Heil Hitler.” Parents and administrators were horrified at what appeared to be a nakedly antisemitic remark. Students, including some who had been in the room, rose to the teacher’s defense, explaining they understood that the instructor, a descendant of Holocaust survivors, was clumsily blurting what had come to mind rather than voicing hostility. The teacher was reinstated; his intent and how his speech was received mattered.
On our accelerating social media treadmill, people are incentivized to respond to speech before taking the time to understand it. In the internet age, where retorts live indefinitely, misinterpretations are virtually impossible to undo.
Consequences of free speech need to be proportionate, lest they eviscerate the freedom itself. In the riff that cost him his show, Mr. Kimmel wrongly implied that Mr. Kirk’s killer had been a MAGA supporter and derided President Trump’s grieving over Mr. Kirk’s death. Criticism of his remark was fair game. But the rallying of a public campaign involving threats by a top government official, rebellion by multiple station groups and indefinite suspension for Mr. Kimmel was a wildly excessive response to a thought that was neither defamatory nor menacing.
The imperative of proportionality is not simply, or even primarily, a matter of fairness to the speaker. When reprisals against speech are public, every other potential speaker is forced to take notice. In Mr. Kimmel’s case, fellow comedians will most likely choose their targets and words more carefully. We defend free speech not because every utterance is worthy, but because punishing one person for something they’ve said can cast a chill over others.
There is a difference between consequences that emanate from the bottom up and campaigns to force institutions to impose punishment from on high. There is nothing wrong with people on a college campus protesting outside a lecture hall or arguing with a speaker. But when they call on authorities at a private university, media outlet or corporation to punish speech simply because it caused offense, reprisals take on a different character.
Private institutions are not bound by the First Amendment; they can fire employees who voice offensive opinions or stray from the party line. But many liberal-minded private actors nonetheless express some commitment to free speech and open discourse. Calls by outside protesters, employees or other constituents to clamp down on offensive speech can legitimize the power of these authorities to police viewpoints. If a media outlet can fire an opinion writer for public statements about Charlie Kirk, it can do the same to others for anything the top brass disfavors.
The whole premise of the First Amendment’s constraint on the government’s ability to adjudicate speech is that, given such leeway, leaders will use the leverage to tamp down on criticisms, dissent and those who would challenge their power. Those who dared depart from the right-wing orthodoxy on Mr. Kirk’s martyrdom have faced a special brand of payback. Government officials, including Vice President JD Vance, the top White House adviser Stephen Miller and the Federal Communications Commission chairman, Brendan Carr, have declared war on those who offended the memory of their friend and ally. Against the backdrop of the administration’s vengefulness toward law firms, news outlets and universities, the threat of retaliation is unmistakable.
While the government has not exacted the punishments, private entities have done so under the heavy hand of government pressure. The result is an increasingly common First Amendment bank shot in which, by working through private proxies, government officials claim a measure of deniability for what would clearly be prohibited infringements on free speech. In the 2024 case of a New York State regulator who tried to discourage insurers from working with the National Rifle Association, the Supreme Court held: “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.”
There is a difference between cancellation or consequences in response to speech and a culture where such reprisals become the norm. In a cancel culture, publishers may decide against publishing a book not because anyone has objected or because it contains anything objectionable but solely because they fear a firestorm. In 2022 an award-winning author was told his contracted children’s book about Hitler was shelved for fear of blowback, according to a PEN America report. With conservatives now apparently joining progressives in the embrace of a culture of consequences, the inevitable result will be a pullback on ideas and creations for fear of what price they may exact.
Whether it emanates from social justice warriors or right-wing influencers, the result of outsized consequences for speech is the same: a society deprived of open discourse and ruled by fear. The foremost victim of today’s government-fueled consequence culture is the First Amendment itself.
Suzanne Nossel served as chief executive officer of PEN America and is a senior fellow for U.S. foreign policy and international order at the Chicago Council on Global Affairs. She is the author of “Dare to Speak: Defending Free Speech for All.”
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