Nobody Wants to Talk About Charlie Kirk’s Actual Legacy

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We are well into week two of a sprawling and largely trivial national debate over free speech, incitement, culture, and the media. This conversation has been cynically deployed by opponents of free speech to punish workers, fire academics, and cancel speakers, and it’s been done while maintaining that this is the way to best protect freedom, democracy, and free expression. Clearly, either the First Amendment has swallowed itself, or the country has turned it upside down.

The truth is that both are happening. On this week’s Amicus podcast, Dahlia Lithwick spoke with Mary Anne Franks, who teaches civil rights law at the George Washington University Law School. She is president and legislative and tech policy director of the Cyber Civil Rights Initiative, a nonprofit organization dedicated to combating online abuse and discrimination. Her most recent book is Fearless Speech: Breaking Free from the First Amendment. This conversation has been edited and condensed for clarity.

Dahlia Lithwick: What are your topline thoughts about Charlie Kirk as the new patron saint of free speech in America, but also Charlie Kirk whose assassination is the reason to criminalize free speech in America?

Mary Anne Franks: If there is something instructive about this moment, if there is something good that can come of this moment, it is stripping away all the rhetorical illusions, and the national inertia we’ve had, because we’ve just assumed for so long that we are all just defenders of free speech. This moment is making it very clear what we’ve gotten wrong about that, and how really serious and deadly a time this is right now.

Tell me if I’m wrong, but that contradiction is absolutely compounded by another issue, which is the consolidation of control of the big organs of media that is playing out right now: Trump claiming he has a deal with the Chinese government to sell Tik Tok to U.S. companies, and there’s the potential Warner Bros. Discovery and Paramount Skydance megamerger.

Let’s put aside for a moment that this consolidation is happening to the advantage of Trump allies and loyalists. These are decisions being made by private actors, I guess, but it doesn’t have anything to do with the marketplace of ideas as the Framers would’ve considered it. This just has to do with optimizing shareholder benefits and trying to get out from under threats from the administration. This consolidation piece is happening at the same time as the jawboning piece. When they’re put together, whole platforms are simply taken over and are in service to this regime. It’s happening quickly, and I don’t think we clock it, and I’m not sure the law can keep up with it?

Even if the First Amendment means that maybe at some point there will be some litigation that will be brought ultimately to vindicate some of these interests—that doesn’t keep us in a free speech–positive place. It just means that the government will push and push, and hopefully somebody will be able to push back eventually and get vindicated. But by that time, you have chilled and suppressed your population, and we will have all learned to be quiet. That’s what’s been going on for several years now. The First Amendment doesn’t intervene in a protective way, the way that we would need it to. And, it does the opposite for us of what we have always told ourselves. The conventional wisdom about the First Amendment is that it not only created a restraint upon government, but it also encouraged all of us to have an open-minded view towards other people’s speech.

That famous quotation that is always misattributed to Voltaire, “I despise what you say, but I’ll defend to the death your right to say it.” Do we think that that describes Americans? Does it describe the people next door, or is it in fact the opposite? Is it in fact the case that if I hate what you say, I will do everything in my power to shut you down? And I will call you a censor for expressing your views if I don’t like them? That is a real problem, and it’s part of the mismatch between the First Amendment and how it’s supposed to operate, and the real binding power we would need in a free speech–protective system. That’s a system we just don’t have. Let’s pause for a moment to talk about the phrase “marketplace of ideas.” It’s just assumed to be a good way to express what we mean by free speech and the exchange of ideas.

“Marketplace of ideas” is a very interesting commercialized view of what speech actually looks like. And now we’re seeing it literally put into place. When you think about what marketplaces look like, they’re all about manipulation and they’re all about the consolidation of power. If you let a market go naturally, when the environment in which that market has developed is not equal and people don’t have equal access or equal power or privileges, what you get is a reflection of more power having more power, and that’s all you’re ever going to get, unless some interventions are made. If we ever had the view that freedom of speech was supposed to correct for that, and that we needed to make sure minority voices were heard so they wouldn’t just get trampled by the elites all the time—where is that force now?

In addition to all that, the administration right now is also a tech company. Here’s what I mean by that. We heard all of these concerns from the Republicans saying the Biden administration talked to social media companies, and there was collusion between Big Tech and all of these liberals, accusations that they’d all gone woke. Now you have a president who is the owner of a social media platform. Trump has an actual financial stake in Truth Social and uses it as his own private propaganda channel. We’re not talking about what that does to freedom of speech and what that does to the marketplace. You have Elon Musk being made a special government employee, and that means putting him directly into the government. What does that mean for X becoming a propaganda channel for the president? We have the tech takeover of the government at the same time as all the other forms of consolidation that you’re talking about, and that should be terrifying to people.

Thus far we’ve been talking about the Trump administration, but I want to talk for a minute about “we.” Many of us have taken this very lofty moral position that, while Charlie Kirk might have been a vocal purveyor of hatred and disdain for women of color, racial equality, trans rights, Paul Pelosi, gun regulation, all of those views were somehow powerwashed into being a virtue because he was willing to go to campuses and perform himself debating with college students.

These “Change My Mind” debates on campuses were filmed, cut, and turned into content for Turning Point USA, and they become symbolic of this notion that there is no higher avatar of First Amendment values than Charlie Kirk. That’s a “we” proposition. I’m seeing that everywhere.

It seems there is a baked-in sense that those debates were an end in themselves, that kind of debating is an end in itself, for equality and liberty and dignity as we think about it as a constitutional value. As somebody who has been watching the First Amendment as carefully as you, what do you think of this sense that at the end of the day, what Kirk did—and paid for horrifically with his life—was embody the proposition that all ideas should be aired in the marketplace of ideas, and that if everybody just debated everyone openly, the world would be a better place.

What did that brand of so-called freedom of speech, or civil discourse, as some people are calling it, actually entail? Is it in fact the kind of thing that we should be committed to, regardless of what happened to one of its proponents?

I would say no, not if we actually care about freedom of speech, because that was the opposite. It was someone who—I think it’s important to note—was not part of a university community, this is not someone who was a student, this is not someone who was a professor, this is not someone who is an expert.

This is someone who was able to work their way into universities as a kind of, for lack of a better word, troll—to say: I disagree with this whole proposition of the university. I’m an outsider and I want to go and aggravate people, get them stirred up, and I want to film it and I want to make money off it. That’s what this was. It wasn’t someone who was trying to model, within a university community, how we could have healthy conversations. This was someone who had a business plan. Who’s to say whether that’s a good or bad business plan, but as a model for free speech, it is not.

When we think about what that really meant, what Turning Point actually did was it made a list of people, a watch list of people, called the Professor Watchlist, that lists professors who are not suitably ideologically aligned with Charlie Kirk and his organization. And those people have experienced extraordinary harassment, death threats, etc., and it’s a deliberate attempt to chill free speech. That’s what Turning Point stood for, was to chill free speech that they did not like, and then to try to take the accolades of saying, “But I’m making this a debate, just come and debate me.” But when you are at the same time jeopardizing people’s livelihoods and their physical safety, and then you show up and say, “Just debate me,” let’s not pretend that this was some kind of civil commitment to open discourse. This was someone who was trying to use the kind of formalistic mechanics of debate to make it seem like they cared about free speech while at the same time ensuring that people were literally reporting teachers for not being right-wing enough or not expressing the views in the classroom they thought were appropriate for students.

There is this really concerning pattern here that we just don’t see. We have been so tricked into believing that there is this kind of justice to, “Well, the left has gone too far,” and we’re hearing it again from liberals that say, “It’s certainly true that the culture of intolerance is something that universities have really cultivated,” as if that were possibly true. As if universities were setting the tone for our country at any time. As if it weren’t much more powerful things like, as Charlie Kirk would say about the Second Amendment, this firm belief that you have to accept some dead kids if you believe in this constitutional right. But somehow we don’t see that as a much more powerful motivation for how America has become so violent and so extreme.

And I think the far right is feeling weak. Members of the Trump administration are saying: We are so scared of even so much as the suggestion that the far right isn’t right about everything right now that we are going to shut it all down. We’re going to threaten them with violence. We’re going to strip them of their funding, we’re going to surveil them, because we’re so scared of what they might say. That is why they’re trying to insist there’s some kind of violence they have to preempt, because they can’t admit that what they’re really saying over and over again is that they’re scared. They are so scared of being contradicted, so scared of being criticized, that they have to respond with this kind of repression.

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