On Monday, Attorney General Pamela Bondi warned that this administration “will absolutely target you, go after you, if you are targeting anyone with hate speech.”
But that is simply not allowed under the First Amendment, at least as the Supreme Court has applied it for more than half a century. The nation’s chief law enforcement officer should know better. There is no “hate speech” exception to the First Amendment. Not surprisingly, after a fierce backlash from many of the Trump administration’s allies, Bondi has since attempted to walk back her statement, claiming that she was speaking only of “hate speech that crosses the line into threats of violence.”
Bondi’s comments came in the wake of the murder of Charlie Kirk, to which some have reacted by saying Kirk was not worthy of being mourned. As distasteful as Bondi and many others may find these comments, they are constitutionally protected. Even celebrations of Kirk’s murder could not be punished by the government. The Supreme Court made that clear in a case that similarly dealt with disrespect of the dead.
It would be dangerous to allow the government to become the arbiter for what speech is tasteful and inbounds.
In Snyder v. Phelps (2011), the Supreme Court considered a lawsuit against the Westboro Baptist Church, a small sect that brought attention to itself by protesting at soldiers’ funerals with offensive signs, carrying messages like “Thank God for Dead Soldiers.” The father of one such soldier sued the church, arguing that one such protest at his son’s funeral had brought him intense emotional distress.
But in an 8-1 decision, the Supreme Court held that the protest was protected by the First Amendment and the father could not win damages from the church. In an understatement, the court acknowledged that the choice to picket at a soldier’s funeral “made the expression of [the church’s] views particularly hurtful to many.”
Nonetheless, as the Supreme Court explained, “Such speech cannot be restricted simply because it is upsetting or arouses contempt.” As the court had held in Texas v. Johnson (1989) — upholding the First Amendment right to burn an American flag — it is “a bedrock principle underlying the First Amendment … that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The court reaffirmed that “the point of all speech protection … is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.”
Why does the First Amendment protect hurtful speech like disrespect for the dead? After all, as the court acknowledged, “funeral picketing is certainly hurtful and its contribution to public discourse may be negligible.”
But it would be dangerous to allow the government to become the arbiter for what speech is tasteful and inbounds. There is simply too much risk that policymakers and enforcement officers would use that power to shut down debate or suppress disfavored views by means of biased application. As the court put it, we “must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.”
This principle has been reaffirmed in several Supreme Court cases. It applies not just to speech disparaging particular people, but to entire groups. In Matal v. Tam (2017), the Supreme Court struck down a law that prohibited trademarking terms or slogans that may be disparaging to people or groups. As Justice Samuel Alito wrote in his plurality opinion, “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” And as Justice Anthony Kennedy wrote for an additional four concurring justices, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.” The attorney general should not speak loosely and wrongly about the rights protected by our free speech tradition. To be sure, true threats of violence are not protected under the First Amendment. But once again, the Supreme Court has set a very high bar for proving that a statement was a true threat and thus unprotected. In Watts v. United States (1969), the Supreme Court held that there was no true threat made in an anti-draft speech where the speaker said, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. [President Lyndon B. Johnson].” The court described this statement as “political hyperbole.” And the court stressed our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Once again, the court was willing to allow distasteful rhetoric for the sake of protecting national debate. Courts thus rightly err on the side of treating statements as hyperbole rather than threats, especially when comments are about public figures and public officials. Genuine, true threats can and should be prosecuted, but the attorney general should not speak loosely and wrongly about the rights protected by our free speech tradition.
Thomas Berry
Thomas Berry is the director of the Robert A. Levy Center for Constitution Studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. 
