Some Republicans turn to social media pressure after Charlie Kirk killing

WASHINGTON — In the week since the assassination of conservative activist Charlie Kirk, some Republican members of Congress have struck a different tone on social media content moderation of political speech.

GOP members spent much of the Biden administration concerned about government-driven censorship of political speech online, including hearings on the House Judiciary Committee’s investigation into the federal government’s role in social media platform’s censorship and moderation of election, health and other information.

But since the Sept. 10 shooting of Kirk, key Republicans have said social media platforms have a responsibility to suppress posts they say celebrated political violence, a stance experts say could violate the First Amendment’s free-speech rights.

In the previous Congress, House Oversight and Government Reform Chairman James R. Comer, R-Ky., introduced a bill that would restrict the government’s ability to communicate with social media companies about protected speech. The House passed it.

This week, Comer scheduled an oversight hearing with CEOs of forum website Reddit, streaming platform Twitch, chat company Discord and gaming platform Steam for next month to answer questions about “radicalization of online forum users, including incidents of open incitement to commit violent politically motivated acts.”

“In the wake of this tragedy, and amid other acts of politically motivated violence, Congress has a duty to oversee the online platforms that radicals have used to advance political violence,” Comer said in a news release announcing the hearing.

Comer, in an interview, defended the hearing as an effort to answer “basic questions” about how the platforms operate, after reports that the alleged killer of Kirk and other young, alleged perpetrators used the platforms.

“It’s not something to grill the CEOs or try to limit speech in any way, but we’re trying to come up with solutions, because it seems like there’s been a pretty well-established pattern that this is being used by younger criminals,” Comer said.

Comer also brushed off concerns that the hearing would be used to tamp down on speech on the platforms.

“I’m glad Democrats have a newfound concern for speech, because they did not have any concern for censorship or limiting speech during COVID or during the Biden administration years, or especially during an election year,” Comer said. “So I’m glad to welcome their newfound concern over censorship and limiting speech.”

Many Republicans have spent years criticizing heavy-handed social media moderation, including earlier this month when the House Judiciary Committee held a hearing on the threat to Americans’ speech from a content moderation law in the European Union.

A subcommittee of that panel, focused on the weaponization of government, spent much of the previous Congress focused on an alleged “censorship industrial complex” between the Biden administration and Big Tech companies.

That effort resulted in a report that mentioned censorship more than 300 times and legislation meant to curb the government’s ability to lean on private companies to suppress political speech.

At a 2023 hearing, Rep. Clay Higgins, R-La., said officials at X, which was then known as Twitter, could face criminal prosecution for suppressing posts related to Hunter Biden’s laptop in the leadup to the 2020 election.

“You, ladies and gentlemen, interfered with the United States of America 2020 presidential election, knowingly and willingly,” Higgins said. “That’s the bad news. It’s going to get worse because this is the investigation part. Later comes the arrest part. Your attorneys are familiar with that.”

This week, Higgins and other Republicans took a different tone, called for users to be banned permanently from social media for posts celebrating Kirk’s death, and said he’d use his post in Congress to encourage that.

“So, I’m going to lean forward in this fight, demanding that big tech have zero tolerance for violent political hate content, the user to be banned from ALL PLATFORMS FOREVER. I’m also going after their business licenses and permitting, their businesses will be blacklisted aggressively, they should be kicked from every school, and their drivers licenses should be revoked,” Higgins said in his post. “I’m basically going to cancel with extreme prejudice these evil, sick animals who celebrated Charlie Kirk’s assassination.”

Free-speech concerns

Mary Anne Franks, a law professor at The George Washington University, said leaning on social media companies to censor posts by users, or target them for their political views, could violate the First Amendment by “jawboning” private companies, instead of the government, to step on free-speech rights.

“All these are attempts by the government to dictate to private individuals and private companies, to dictate what their choices and messages have to be around Charlie Kirk’s death,” Franks said.

Franks pointed out that the House Judiciary Committee held more than half a dozen hearings “about the alleged censorship industrial complex, and at the same time now we are seeing Republicans say now we can dictate what you can say on these platforms.”

“They’re quite literally engaging in the coercion they accused the Biden administration of being engaged in,” Franks said.

Rep. Darrell Issa, R-Calif., defended the rationale behind those efforts in an interview, saying “condoning the taking of a human life is not protected speech.”

“Saying ‘it’s OK that you burned down the theater’ is no different than yelling ‘fire!’ and leading to that,” Issa said.

Posts that celebrate Kirk’s death or called the violence justified were “condoning it in a way that could normalize it or cause a future event,” Issa said.

Experts said that argument doesn’t line up with what the Supreme Court has said about free speech. Eugene Volokh, a professor at UCLA School of Law, said protesters or online posts can and do sometimes break the law, such as when they directly advocate violence, trespass on private property or when participants break the law.

“Some protests do indeed violate the law. If they violate the law, they are illegal and the law should be enforced,” Volokh said. “You’re entitled to speak. You are not entitled to speak by trespassing into Congress or a restaurant.”

Just posting about someone’s death is different, Volokh said. “Cheering on political violence is not a First Amendment exception. It’s not a threat. It’s bad, but it is constitutionally protected,” Volokh said.

Franks said American society has had to accept a lot of things under the banner of First Amendment protections.

“One of those things is, of course, you are allowed to say that some terrible thing that happened is a good thing,” Franks said.

Franks noted that there are decisions saying that certain speech isn’t protected, but those are limited. The Supreme Court decisions around when free speech crosses the line are “really, really directed toward inciting people to violence in that moment, not after the fact,” Franks said.

Democrats on Thursday told reporters at a press conference they intend to push back on Republicans’ efforts and attempt their own investigations, though they do not control the gavels in either chamber.

Sen. Christopher S. Murphy, D-Conn., said he would introduce a bill intended to counter President Donald Trump’s efforts to tamp down on criticism.

Murphy argued that private companies are lining up to be “lieutenants” in the effort by Trump and Republicans to “destroy political speech,” like the indefinite suspension of ABC late-night host Jimmy Kimmel on Wednesday.

“This is going to be an epidemic where there will be speech control both in the public sphere and in the private sphere as well,” Murphy said.