After former President Donald Trump was shot in the ear in an assassination attempt at a campaign rally, some took to social media to joke about the attempt or express remorse that it failed.
While many might view these posts in poor taste, they are for the most part legally protected by the First Amendment, according to Northeastern University legal experts.
“Jokes in general are fine,” says Wendy Parmet, Matthews Distinguished University Professor of Law at Northeastern.
“But there is a narrow line between what is a joke and when that turns to incitement for violence or even excitement for imminent violence.
There are a lot of jokes that might be in poor taste, that might be offensive, or that might be worrisome to some folks … (but) in general, the court has been very protective of the speech of private citizens, including speech that is deeply offensive and, at times, scary.”
The line of what’s considered an incitement for violence depends on what exactly was said in each situation, Parmet says. And the line for what’s acceptable has changed with the rise of the internet and social media.
The Supreme Court is also making new rulings regularly that shift the way we approach free speech, Parmet adds.
But wishing ill on someone doesn’t generally cross that line, she says.
“Expressions of remorse or delight are not a call for an imminent act or incitement of violence,” Parmet adds. “(Saying) ‘I wish lightning would come and strike someone…’ that’s not a threat. There’s a difference. That is protected speech.”
The Supreme Court also has previously ruled to protect political satire, says Claudia Haupt, a professor of law and political science at Northeastern. In 1988, the court ruled in favor of Hustler magazine after it was sued by televangelist Jerry Falwell over a fake ad the magazine ran implying he had an incestuous relationship with his mother.
“(The Supreme Court) said this is a public figure and we have a very, very long tradition of really outrageous satire about public figures,” Haupt says. “This is a really important part of political discourse, even if it’s intended to cause emotional distress.”
Even if you can make a joke about violence without facing legal consequences, that doesn’t mean you can’t face personal or professional consequences. Comedian Jack Black canceled his music tour with Kyle Gass (the pair perform as a duo under the name Tenacious D) after Gass made a joke about the assassination attempt onstage.
“Comedians can say a lot of deeply offensive, horrifying stuff,” Parmet says. “The government can’t come arrest them for it, but NBC could say we’re not putting you back on the air.”
Your employer can also place limits on what you say, according to Margaret Hahn-DuPont, a teaching professor at Northeastern’s School of Law.
“Something to keep in mind is that there is no First Amendment right when the entity attempting to censor you (e.g., limit what you can say on social media) is not the government,” Hahn-DuPont says. “The First Amendment (and all of the amendments) only cover action by the government. Consequently, yes, someone could lose their job for posting a joke on social media.”
However, Hahn-DuPont points out the law surrounding this is complicated. Private employers can fire employers for almost any reason that isn’t protected by law (like whistleblowing) and can have contract provisions that limit what employees post on social media.
“Typically, the rationale would be that your post reflected poorly on the company, was not aligned with the company’s mission,” she says. “It would seem like they shouldn’t be able to discipline you for things you do outside of work time, but employers can, and have.”
Usually, employees fired for this reason have little legal recourse, Hahn-DuPont adds. Employees can file lawsuits if terminated over a joke, arguing that it didn’t impact the company’s reputation, was misinterpreted, or was a pretense for an unlawful firing.
Public employees have greater protections. They can speak out as a private citizen on matters of public concern, Hahn-DuPont says, but what’s considered a matter of public concern is “very much in flux.”
When it comes to social media, platforms also technically have the right to delete your content if it violates their terms of services, Haupt says.
Social media platforms are private actors, according to Haupt, while the First Amendment applies where the government is concerned. This means the platforms can set community guidelines under their terms of service and moderate content based on those.
“It’s an individual right against the state to free speech, but it’s not an individual right against a platform,” Haupt says. “We’re basically outside the First Amendment when we’re talking about social media.”
The Supreme Court recently returned a case on this issue to the lower courts. The case centered on a challenge to laws from Florida and Texas that aimed to prohibit social media platforms from removing content.
“The decision is important because it basically says the platforms are free to moderate the content that’s posted by individual users on the platform,” Haupt says. “As a private platform, (social media companies) can pick and choose according to their guidelines what types of speech they permit without the user having a First Amendment claim.”
But while social media platforms have the right to moderate content as they choose, Haupt says most are pretty permissive when it comes to jokes, so it’s unlikely many will see their posts affected, so long as they’re not violating user guidelines, many of which include prohibitions against threats of violence.
Written by Erin Kayata/Northeastern University.
