"Cancel culture," "intimidation" and reminiscent of the Red Scare. That's how three First Amendment advocates described Indiana Attorney General Todd Rokita's desire to publicly document and shame the controversial speech of some teachers following conservative activist Charlie Kirk's assassination.
In a Sept. 12 X post, Rokita asked people to report teachers who "celebrate or rationalize" Kirk's Sept. 10 killing so they can be included in his office's government dashboard. The platform has been used to list and condemn instances of "objectionable" political ideology entering the classroom.
"These individuals must be held accountable — they have no place teaching our students," Rokita, a Republican, said in the post, which generated replies with specific teacher profiles and comments.
Following seeing "the evils of wokeism," Lt. Gov. Micah Beckwith also asked for instances of educators and community leaders who posted celebratory messages online in a Sept. 12 X post. His office will review the submissions and potentially contact those individual managers, he said.
Significant First Amendment ramifications are in play for elected leaders to take this kind of step, experts told IndyStar. They worry that the creation of such a list will both chill legal speech and potentially motivate actions that violate their constitutional rights.
"The notion that an attorney general would conduct a dragnet for comments made about the shooting almost leaves me without words," said Ken Paulson, director of the Free Speech Center at Middle Tennessee State University.
In a Monday afternoon statement, Rokita's office said hundreds of people have submitted information over the weekend, and it is in the process of reviewing, verifying and posting reports. As of Monday afternoon, no instances related to Kirk's death have been added to the dashboard.
"There is nothing remotely inconsistent between that kind of public transparency and the First Amendment," Slayde Settle, a spokesperson for the office, said in the statement. "If a government employee would prefer that parents and other Hoosiers not know about their support for the violent assassination of a husband and father of two young children, perhaps they should refrain from expressing that support in public forum."
Public employees — including teachers, professors and government employees — have First Amendment rights that private-sector employees do not. A 1968 U.S. Supreme Court case established that public employees do not lose their First Amendment rights on matters of public importance when expressed in their private capacity.
Kirk, the founder of Turning Point USA, was shot in the neck during a question-and-answer session at Utah Valley University, a stop on his collegiate speaker series called The American Comeback Tour. President Donald Trump confirmed Kirk's death on Truth Social shortly after.
After which, many people took to social media to criticize Kirk's work as a conservative activist and his previous controversial statements. Some said Kirk "reaped what he sowed," while others said plainly he deserved it. Several posts were criticized for saying they condemn his assassination but don't feel empathy for him.
Public denunciations grow
Rokita's request comes as several grassroots efforts grow to publicly shame and punish Kirk’s detractors. Adam Goldstein of the Foundation for Individual Rights and Expression said that’s not uncommon, and all experts agreed the number of people participating in this effort is largely unheard of.
"It is bad enough when we see these calls to punish people for speech," said Jonathan Friedman of PEN America. "It is another when we see politicians doing it and suggesting that they're going to use the machinery of government to implement it."
Nationally, many conservative figures and social media accounts are crafting lists of questionable speech, including a now-taken-down website that says it has amassed nearly 50,000 submissions to "archive instances of individuals promoting or glorifying political violence."
In Indiana, several teachers, government employees and university staff members are being shamed on social media for comments critical of Kirk's controversial speech or making light of his death. Posts are generating thousands of comments, ranging from calls to fire them to personal attacks.
Already, several teachers and other government employees across the country have been fired or put on leave for speech regarding the assassination. Paulson said he believes there will be a wave of people disciplined or fired unfairly for such speech.
The Indiana Department of Child Services confirmed one person is "no longer an employee" after they made a comment about Kirk in "poor taste."
Rokita seeks to add these instances to his Eyes on Education portal. There, his office has curated a list of submitted instances where it feels teachers or schools overstep and inserted politics into the classroom. Entries include homework assignments, policies, inclusion statements and flags.
"Public comments by educators, government employees, and others that celebrate or condone the tragic assassination of Charlie Kirk are despicable," the Office of the Attorney General's statement reads. "Parents have every right to know about the values and conduct of those entrusted with educating their children.
This dashboard doesn't appear to cross any First Amendment lines on its face, Goldstein said, but it could if leaders seek to punish people for legally acceptable speech.
"It seems to me like [the Kirk assassination] was motivated by a desire to silence a speaker," he said. "To react to that by silencing more speakers, it seems like we should do the opposite."
"A wave of cancel culture"
Experts warn that Rokita’s crusade, among other national examples, could stoke the idea that free speech is conditional and based on what is or isn’t dominantly accepted.
The Constitution protects a broad swath of speech, including much that the public finds objectionable. In 1929, Justice Oliver Wendell Holmes described the First Amendment as "not free thought for those who agree with us but freedom for the thought that we hate.”
Whether an employee's speech rights are protected depends on if its passes the "Pickering Connick test," a two-part test which allows the courts to balance an employee's free speech rights with that of an employer's interest for a disruption-free workplace.
In the 1983 case Connick v. Myers, the Supreme Court clarified the Pickering Connick test, finding that "government officials" could "enjoy wide latitude" in managing employee speech when employee expression could not "be fairly considered as relating to any matter of political, social, or other concern to the community."
This test was recently limited slightly by a 2006 Supreme Court case that found that public employees do not have First Amendment protection for speech that was issued as part of their official duties.
Just as one has the right to post negative messages about Kirk, his supporters can also respond and call attention to those comments. However, First Amendment advocates urge people to take a breath and not fall into a behavior nonconductive to free expression.
"The law is sometimes held up too often as a justification for actions we take, where it's really meant to be the lowest level of behavior we can accept before our society ceases to function," Goldstein said.
If people have something to say, Paulson said they should still say it. However, he said that it should be done tastefully and not be crude or rude. Several statements that have gotten people punished, he said, could be rewritten to not be as offensive.
He also urged those who are seeking retribution for disrespectful comments to engage in debate instead. Experts agreed that this line of action would be most similar to what Kirk was known for: openly debating people with opposing political ideologies.
"We need, as a nation, to continue to embrace free speech and express ourselves, but we can do it in a way that is not intended to provoke and heighten tensions," he said. "We've fallen into a trap where it's too easy to try to punish speech rather than rebut it."
This country has sought to maintain an open marketplace of ideas, Friedman said, but these actions run counter to that. What will ultimately happen is a chilling effect across the board, he said, that takes the country backwards.
"It's one thing to call for civility, for a generalized plea that people conduct themselves publicly in ways that are respectful of someone who was assassinated in a horrific event," he said. "But at the same time, when it turns into this McCarthy-like effort to launch witch hunts against people for things they said online to get them fired from their jobs, that is deeply chilling and really concerning that it might actually be acted upon against people in their professional roles."
By Cate Charron
The Tennessean's Angele Latham contributed to this report.