There’s no ‘hate speech’ exception to free speech, contrary to what the Attorney General said

Attorney General Pam Bondi recently said, “There’s free speech and then there’s hate speech, and there is no place, especially now, especially after what happened to Charlie, in our society…We will absolutely target you, go after you, if you are targeting anyone with hate speech.”

Contrary to Bondi’s claim, free speech does include hate speech, especially when aimed by a private citizen at a public figure like Charlie Kirk.

In striking down a provision used to prevent hateful and racially insulting trademarks, the Supreme Court said that free speech protects “hateful” speech “that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground,” because the “proudest boast” of America’s free speech tradition is “freedom for the thought that we hate.”

Even if hateful speech makes people angry at someone like Charlie Kirk, that speech is still protected unless it intentionally incites imminent lawless action, according to a 1973 Supreme Court ruling. If the speaker who denounced Charlie Kirk didn’t intend a listener to kill Charlie Kirk, then that speech is protected speech, not unprotected incitement of violence. When a Ku Klux Klan speaker said it was “possible” than the Klan would need to take some “revengeance” against government officials in the future, that was considered to be protected speech by the Supreme Court, not advocacy of imminent unlawful violence, according to the Supreme Court’s ruling in Brandenburg v. Ohio (1969).

The Supreme Court also ruled that an extreme religious sect could not be liable for intentional infliction of emotional distress for demonstrating against the funerals of U.S. troops in a hateful way, such as “God Hates the USA/Thank God for 9/11,” “Thank God for Dead Soldiers,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” That speech in Snyder v. Phelps (2011) was much more hateful than the anti-Charlie Kirk speech that some right-wingers are now trying to get public employees fired for, such as a low-level public employee claiming that Charlie Kirk was “racist, homophobic, and sexist.”

Under the First Amendment, progressives are free to say uncharitable things about conservatives, just as conservatives are free to say uncharitable things about leftists. The First Amendment does not protect just “happy talk”, and protects speech regardless of its “truth, popularity, or social utility.”

Banning hateful speech is risky because different people find different things hateful. “Hate speech” is now broadly “defined” by leftist NGOs to include “offensive words, about or directed towards historically victimized groups,” according to a think tank. Things labeled as hate speech have included commonplace views about racial or sexual subjects. That includes criticizing feminism, affirmative action, homosexuality, or gay marriage, and certain opinions about how to address sexual harassment or allegations of racism in the criminal justice system.