This ends badly.

On Attorney General Pam Bondi’s “hate speech” claptrap, I agree with our editorial. I also concur in Charlie’s assessment that “speech is speech is speech,” since he caveats that there are and have always been categories of speech that are not protected by the First Amendment. That’s why the amendment refers to “the freedom of speech” (emphasis added); the term was understood in the late eighteenth century to have these well-known exceptions.

There is no “hate speech” exception to First Amendment protection. As the Supreme Court summarized the matter in Chaplinsky v. New Hampshire (1942):

There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. . . . These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.

The Court has since elaborated that fighting words are “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction”;  but the government may not proscribe incitement — i.e., speech likely to promote violent action — except when such speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (See, e.g., Virginia v. Black (2003) (other citations omitted.)

I also want to say something about Attorney General Bondi’s lame attempt to revise what she said into something less objectionable — a worthy impulse, though it would be better if she were capable of saying she’d made a mistake, rather than suggesting that we heard her wrong.

Backpedaling yesterday on X, the AG altered her formulation from “hate speech” to “hate speech that crosses the line into threats of violence.” She sought to bolster her point by citing various well-known federal statutes that criminalize threatening communications and threats to public officials.

It has long been understood, however, that the First Amendment does not protect speech that threatens harm or calls for violent lawlessness (at least under circumstances in which the speech is likely to result in such action — in contrast, say, to the setting of a baseball stadium, with a disgruntled home fan yelling, “Kill the umpire!”). The problem for Bondi is that, when she invoked “hate speech” in the interview, she did not appear to be talking about actionable threats and incitement. Or, put another way, threats and incitement are actionable because they are threats and incitement; it adds nothing but confusion to further describe them as “hate speech,” a term without First Amendment pedigree. Her implication was that expression — including political expression, the core of free speech protection — can be criminalized if it rubs the incumbent government and its base supporters the wrong way.

I’ve occasionally made an analogous point regarding the noxious concept of “hate crimes.” It’s a distortion of civil rights law. Federally, those statutes criminalize various acts and conspiracies, some of them motivated by animus against people of another race and similar prejudices; but, importantly, these provisions are neutrally written to protect people of all races, ethnicities, etc., from civil rights violations (see, e.g., Sections 241 and 242). They are not meant to be invoked only on behalf of groups favored by progressive Democrats.

Commentators, particularly on the left, habitually label these offenses “hate crimes.” The term has entered media coverage and popular discourse. Even worse, it has seeped into the law. Section 3A1.1 of the federal Sentencing Guidelines, for example, prescribes an enhanced sentence for “hate crime motivation or vulnerable victim”; it applies if the court finds that the defendant committed his crime “because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person.”

This is all unnecessary since sentencing law has always allowed judges to take any relevant information into account. A court could always appropriately mete out a severe sentence if a person’s, say, racist motive made his offense more horrifying or the likelihood of recidivism greater. The upshot of codifying “hate crimes” into our sentencing guidelines is the implication that the law should treat some motivations differently from others. And once we’ve decided to be selective about which hateful ideas should be actionable, it’s not a big leap to pronounce some “hateful” speech as actionable — again, all depending on who’s running the government enforcement apparatus at a given time.

Not surprisingly, then, by the time she was done, Bondi was also threatening to prosecute Office Depot under the civil rights laws for hatefully refusing to print posters that Charlie Kirk’s supporters and mourners wanted for an event in his honor. As our editorial observes, the attorney general would have the DOJ ape the lefties who’ve hounded Jack Phillips for years.

The Trump-Bondi way of governance — we’re going to use the Democrats’ lawfare tactics against them, to make them know how it feels to be on the wrong end of “the process is the punishment” law-enforcement — does not end in a truce in which we all commit to blind justice that honors the Constitution. It ends in the Democrats deploying lawfare with a vengeance at the next opportunity.