Free Speech Limits, Bondied About

The Attorney General got the First Amendment wrong three times in a row.

Screen capture from the Katie Miller Podcast

Attorney General Pam Bondi needs to brush up on the First Amendment. She doesn’t seem to grasp some very basic tenets of freedom of speech. Indeed, three times this week, Bondi stepped in it so badly that even MAGA sharpened its knives for her.

The first time happened on Monday. On Sean Hannity’s show on Fox, Bondi claimed that her office was looking into prosecuting people for refusing service to Charlie Kirk supporters. Hannity had asked about an incident in Michigan where an Office Depot clerk had refused to print pro-Kirk signs.

So, let me get this straight: Companies can refuse to provide cakes and website services for a gay couple’s wedding, but they have to print posters of Charlie Kirk. Got it. Totally consistent.

On Tuesday, Bondi claimed that “Hate Speech” is unprotected, making a distinction between “free speech” and “hate speech” while vowing to “target” anyone engaging in hate speech.

Hoo boy. Every first year law student knows that there’s no such thing as a “hate speech exception” to the First Amendment.

She then tried to walk back this statement, saying she was only talking about speech that promotes violence. But even that remains protected speech except in narrow instances.

Today, let’s dig into what Bondi said, the context around her statements, and the very angry reaction from MAGA to them.

Let them serve cake!

Emotions have been running high across the nation, with Kirk’s fans and detractors staking out extreme positions, saying heated things, and even sometimes, as I wrote about earlier, getting cancelled for them.

This played out in Portage, Michigan, where an Office Depot clerk refused to print posters of Kirk for an upcoming vigil. The moment went viral after it was shared by Kelly Sackett, chair of the Kalamazoo GOP, and the company scrambled to do damage control.

“Upon learning of the incident, we immediately reached out to the customer to address their concerns and seek to fulfill their order to their satisfaction,” Office Depot tweeted in a statement. “We have also launched an immediate internal review and, as a result, the associate involved is no longer with the organization.”

A lawsuit may be coming. Matthew DePerno, a lawyer representing the customer, said it was “outrageous” that a major chain would refuse to print a simple poster featuring Kirk’s name and date of birth apparently because a clerk disagreed with Kirk’s politics.

But Bondi wasn’t satisfied with the private action taken by the company to address a private customer’s concerns. She decided to involve the government. Bondi told Hannity,

“Employers, you have to have an obligation to get rid of people. You need to look at people who are saying horrible things. And they shouldn’t be working with you. Businesses cannot discriminate. If you wanna go in and print posters with Charlie’s pictures on them for a vigil, you have to let them do that. We can prosecute you for that.”

She added,

“I have Harmeet Dhillon right now in our Civil Rights Unit looking at that immediately, that Office Depot had done that. We’re looking it up.”

The double standard here was glaring. As former White House Deputy Press Secretary under Trump and self-described “Republican in Exile” Sarah Matthews noted,

“For so long conservatives fought for the right of freedom of speech, or freedom to refuse service… And then you have Pam Bondi going on TV and saying she’s going to go after [Office] Depot…

It just flies in the face of… what it means to be a conservative. And it shows how much Trump has eroded American conservatism.”

Let’s not forget: Conservatives believed they had finally won this battle in 2023. In a landmark ruling that eroded the right of same-sex couples to participate on an equal basis in society, the conservative Supreme Court majority greenlit the right of a business owner to discriminate against them because the state impermissibly “compelled” speech in violation of the First Amendment.

The case, 303 Creative LLC v. Elenis, held that Colorado could not enforce its anti-discrimination law against a Christian website designer who didn’t want to create wedding sites for same-sex couples sometime in the hypothetical future because it would violate her First Amendment right to free speech. Writing for the 6-3 majority, Justice Neil Gorsuch said the state cannot “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”

Five years earlier, the Court had ruled in favor of a baker who had challenged Colorado’s anti-discrimination law requiring equal treatment of same-sex customers, including when they ordered cakes for their weddings. But it had done so on very narrow grounds that limited the impact of the case. Presumably, a homophobic baker today would prevail under Gorsuch’s reasoning.

Bondi’s statement on Monday turned 303 Creative on its head. She claimed that “businesses cannot discriminate”—which is precisely the law Colorado had tried to enforce. She said they “have to let them” get their Kirk posters printed, even though this would, as Gorsuch wrote, force businesses to speak in ways that defy their conscience “about a matter of major significance.”

Moreover, printing a poster with an image of a political commentator who espoused racist, misogynistic and homo- and transphobic views is arguably a far greater imposition and instance of compelled speech than baking a basic cake or making a website.

Nevertheless, Bondi thinks you can’t discriminate against Kirk fans. You have to print his image. She has yet to explain what she meant, to distinguish 303 Creative, or to retract her statement. As things are, we’re left collectively wondering if Bondi really means businesses must serve only conservative customers whenever demanded.

Yes, Pam, hate speech is protected speech

Bondi dug a deeper legal hole for herself on Tuesday. She went on a show hosted by Katie Miller (the wife of Deputy White House Chief of Staff and white nationalist Stephen Miller) to declare something that is definitely not the law:

“There’s free speech and then there’s hate speech. And there is no place [for it], especially now, especially after what happened to Charlie, in our society.”

Bondi added,

“We will absolutely target you, go after you, if you are targeting anyone with hate speech, and that’s across the aisle.”

But the distinction Bondi drew between “free speech” and “hate speech” is non-existent under the First Amendment. As Joyce Vance noted in her Civil Discourse newsletter,

The First Amendment matters the most when it comes to the speech we like the least, protecting people’s right to air their views, no matter how extreme, because in this country, we make decisions in a free marketplace of ideas, and not one where the morality police get to decide what is and isn’t acceptable. We tolerate speech we disagree with, even speech that we find horrific, in order to protect our own right to speak.

Nowhere was the cost of this tolerance clearer than in Skokie, Illinois, whose longtime residents will remember when the Supreme Court ruled in 1978 that Nazis had a free speech right to hold a rally there, despite their hateful language.

It’s been interesting to witness the fury of the MAGA right descend like so many birds to feast on Bondi for her very hot yet very wrong take. The New Republic assembled some of the angriest responses:

“There obviously shouldn’t be any legal repercussions for ‘hate speech,’ which is not even a valid or coherent concept,” wrote podcaster Matt Walsh of The Daily Wire on X—though he said those who celebrate Kirk’s death should face social consequences. “We don’t need Pam Bondi swooping in to throw the entire conversation off the rails by completely missing our point,” he continued. “And having a ‘hate speech’ crackdown in the name of Charlie Kirk—a man who absolutely rejected ‘hate speech’ laws—is especially grotesque.”

Right-wing commentator Savannah Hernandez called Bondi’s sentiment “destructive,” adding, “She needs to be removed as attorney general now.” Talk show host Dave Rubin similarly called for Bondi’s “immediate resignation,” describing her statement as an “unbelievably bad take.” Provocateur Mike Cernovich tweeted that the “hate speech” claim, paired with Bondi’s mishandling of the case of Jeffrey Epstein, shows that the attorney general “really isn’t ready for this moment.”

“Our Attorney General is apparently a moron,” wrote conservative radio host Erick Erickson.

Even Charlie Kirk, whose reputation Bondi was trying to protect, would have taken issue with her. “Hate speech does not exist legally in America,” he tweeted in May of 2024.

Sensing she was now on the menu, Bondi attempted some clean up on the MAGA aisle. Yesterday, she tweeted that the distinction she was referring to for “hate speech” was with respect to violent speech:

Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment. It’s a crime. For far too long, we’ve watched the radical left normalize threats, call for assassinations, and cheer on political violence. That era is over.

Still no, but thank you for playing!

As any lawyer worth her salt knows, even speech that promotes violence is generally protected by the First Amendment, with exceptions only where the speech comprises a direct threat or incites imminent unlawful action.

The controlling authority is Brandenburg v. Ohio, a famous 1969 opinion. The defendant was a KKK member who gave a speech on a remote location calling generally for “revengeance” against Blacks and Jews. He was prosecuted and convicted in Ohio, but SCOTUS overturned it, holding that speech can only be prohibited if it is “directed at inciting or producing imminent lawless action” and is “likely to incite or produce such action.”

Incitement is a very high bar, as we learned on January 6, 2021, with Trump’s speech, which prosecutors were concerned would not have qualified.

With her ignorance of what actually comprises prohibited violent speech, Bondi once again has ignored direct Supreme Court precedent. The Justice Department has no legal basis to crack down on any parties for “violent” hate speech that does not risk inciting or producing imminent unlawful action.

If you’re counting, that’s three major SCOTUS opinions in two days that the Attorney General got wrong: Creative 303, Village of Skokie and Brandenburg.

If I were her Con Law professor, I’d fail her hard.