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We get it: not everyone is a free speech expert. A huge part of our job at FIREis educating the public about their First Amendment rights, the scope of free speech law, and the foundational principles that make free expression so important.

Most people don’t have the time to get in the weeds like we do, so it’s understandable for the average American to sometimes get things wrong about free speech. But when you’re the attorney general of the United States, like Pam Bondi, you really should know better.

While discussing the assassination of Charlie Kirk and campus antisemitism on , Bondi said the Justice Department would investigate and prosecute incidents of “hate speech.” While she’s  to go into damage control mode and walk back some of her mistakes, it’s important to correct our nation’s chief law enforcement officer on what is and isn’t protected expression. 

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

This is, to put it bluntly, absolutely false — so-called “hate speech” is free speech. 

The idea that “hate speech” is a separate and unprotected category of expression is one that we, unfortunately, have had to debunk time and time again. The fact is there is no “hate speech” exception to the First Amendment, and there can’t be. The Supreme Court has rejected the notion on multiple occasions, and the reasons for this should be obvious to someone in Bondi’s position.

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What constitutes “hate speech” is inherently subjective, so it’s impossible to narrowly define it in a way that passes constitutional muster — let alone in a way that doesn’t empower the government to target speech it disfavors.

As Supreme Court Justice John Marshall Harlan II wrote in 1971’s Cohen v. California, “one man’s vulgarity is another man’s lyric.” Or as Justice Samuel Alito wrote in Matal v. Tam almost four decades later, “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” In that case, the Court unanimously found that the government couldn’t deny a trademark to an Asian-American band called the Slants because it found the name disparaging. 

Some consider criticism of Israel or Black Lives Matter to be hate speech. Others believe criticizing LGBTQ+ advocacy or Christian conservatism fits the description. And some, like , want to push the idea that even critical news coverage of an elected official — namely, him — can be a form of hate speech.

Apart from the inescapably subjective sentiment that “hate speech is any speech I hate,” the only thing on which proponents of treating hate speech as unprotected agree is the desire to punish it. This apparently includes Pam Bondi:

We will absolutely target you, go after you, if you are targeting anyone with hate speech.

This is absolutely chilling. It’s why carving out a “hate speech” exception to the First Amendment is so dangerous. It grants the government the power not only to decide what constitutes hateful speech, but to punish it. And that dual empowerment inevitably facilitates attacks on the right to dissent, criticize, and hold accountable whoever is in power. Nothing is more antithetical to what America stands for than enabling federal speech police. 

Early this morning, Bondi , attempting to clarify her comments after a wave of negative response. Unfortunately, she only introduced more confusion:

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.

While Bondi is correct that speech satisfying the stringent standard for what constitutes a true threat of violence is not protected by the First Amendment, she seems to effectively equate it with so-called “hate speech.” She goes on:

Under 18 U.S.C. § 875(c), it is a federal crime to transmit “any communication containing any threat to kidnap any person or any threat to injure the person of another.” Likewise, 18 U.S.C. § 876 and 18 U.S.C. § 115 make it a felony to threaten public officials, members of Congress, or their families.

Bondi is narrowly correct here. In 2003’s Virginia v. Black, the Supreme Court defined true threats as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

However, Bondi quickly shows that she doesn’t understand this narrow exception, which doesn’t cover abstract advocacy of violence or “cheering on” political violence — speech that is, in fact, protected:

You cannot call for someone’s murder. You cannot swat a Member of Congress. You cannot dox a conservative family and think it will be brushed off as “free speech.” These acts are punishable crimes, and every single threat will be met with the full force of the law.

Actually, you can call for someone’s murder as long as you’re not inciting it. In the landmark Supreme Court case Brandenburg v. Ohio, the Court established that there is a difference between speech promoting unlawful action and the unlawful action itself. That speech only loses First Amendment protection when it is “directed to and likely to produce imminent lawless action.” The reason for this is to protect our ability to engage in sharp, critical, and even incendiary language — because political speech, as the Supreme Court noted in 1969’s Watts v. United States, “is often vituperative, abusive, and inexact,” and we don’t want a particular politician or administration deciding for everyone when it’s too hateful or offensive.

Is hate speech protected by the First Amendment?

Is hate speech protected by the First Amendment? The First Amendment makes no general exception for offensive, repugnant, or hateful expression.

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Like hate speech, Bondi also fails to define “doxxing.” It often refers to the intentional release of an individual’s personal identifying information without their permission — though many use the term more liberally, for example, to  of ICE agents performing their duties in public. Disclosing truthful information about others is generally protected unless done in a way that amounts to a true threat or incitement. 

Mercifully, Bondi ended her tweet with something to which we don’t object: 

Free speech protects ideas, debate, even dissent but it does NOT and will NEVER protect violence.

You’ll get no argument from us there. Words are words, and violence is violence. And the distinction makes all the difference: Protect speech. Punish violence.

What Bondi fails to recognize is the critical importance of protecting ideas, debate, and dissent is why there is no First Amendment exception for so-called “hate speech” — and why there never should be.

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