Is hate speech still protected speech?

Attorney General Pam Bondi sparked a backlash this week by announcing the Trump administration would target “hate speech” in the aftermath of Charlie Kirk’s shooting. Somewhat surprisingly, the backlash came from both the left and the right.

Bondi appeared to “shrug off First Amendment concerns” with her pronouncement, said NBC News. “There’s free speech and then there’s hate speech,” she told podcaster Katie Miller, adding that “we will absolutely target you, go after you” for using hate speech. Lawyers who talk of “criminalizing free speech” are the products of “failed” law schools, said Supreme Court Justice Sonia Sotomayor. President Donald Trump’s allies also pushed back, noting Kirk himself had argued against hate speech prosecutions. It is a “very important part of our tradition” that “we do not censor and silence disfavored viewpoints,” said House Speaker Mike Johnson (R-La.).

‘Speech is speech is speech’

The attorney general is “wrong” to suggest that hate speech is “unprotected expression,” said Jordan Rubin at MSNBC. The Constitution “doesn’t make such a distinction” between free speech and hate speech. That “should defeat any prosecutions” by the Justice Department for saying the wrong thing. But it reveals that this administration has “gone after and will continue to go after people and groups it sees as its opponents.”

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If Bondi tries to target hate speech, the Supreme Court “will side against her, 9-0,” said Charles C.W. Cooke at the National Review. All of the court’s relevant precedents say “speech is speech is speech.” While libel, incitement and threats can be punished, supposedly “hateful” speech is “undoubtedly protected by the Constitution.” It is “astonishing” to see a Republican attorney general make such statements when securing protection for offensive comments has been a “priority for conservatives for decades.” Hate speech is protected speech, “including about Charlie Kirk’s murder.”

Bondi’s comments came after Trump “tried to indict ’the radical left’” for Kirk’s slaying, Ed Kilgore said at New York. That is wrong: Assigning “collective responsibility” for an individual’s crime is both “illegal and incendiary.” But it is “more alarming” that the attorney general appeared to back the idea of prosecuting “anyone who said mean things about Kirk.” The bottom line is that “no free country can have a chief prosecutor who publicly endorses witch hunts.”

Targeting Trump’s opponents

Bondi tried to walk back her comments, said Axios. “Freedom of speech is sacred in our country, and we will never impede upon that right,” she said in a statement, adding that she intended to take on “threats of violence that individuals incite against others.” But her walkback only went so far, as Bondi also said Monday she might prosecute a Michigan Office Depot worker for “unlawful discrimination” for refusing to print flyers for a Kirk memorial.

Her statements are reflective of a White House “constantly grasping for unfettered presidential power to target opponents,” said Stephen Collinson at CNN. The Trump administration is likely to “target liberal groups” with a crackdown despite the “legal and constitutional concerns.”