Feelings are running high in the Trump administration after the murder of conservative activist Charlie Kirk, so, understandably, officeholders such as Attorney General Pam Bondi want to do everything they can to ensure such an assassination never happens again. But her recent comments on imminent action against hate speech, threats of violence, and civil rights have no foundation in law and should be rejected by the White House.

“There’s free speech, and then there’s hate speech, and there is no place, especially now, especially after what happened to Charlie, in our society,” Bondi said in a podcast with Katie Miller, wife of White House deputy chief of staff for policy Stephen Miller. When asked by Katie Miller if we will see “handcuffs” on “groups who are using hate speech,” Bondi said, “We will absolutely target you, go after you, if you are targeting anyone with hate speech.”

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But as Kirk once said, “Hate speech does not exist legally in America. There’s ugly speech. There’s gross speech. There’s evil speech. And ALL of it is protected by the First Amendment. Keep America free.” He was right, and Bondi is wrong. She realized it hours later when she posted a clarification on social media. “Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment,” Bondi wrote. “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.”

This is true. Threats of actual violence are not protected in the Bill of Rights. But that has nothing to do with “hate speech,” which is a nebulous concept that can be, and these days is, expanded to encompass any utterance that a listener finds distasteful. Someone celebrating the death of a person because of his or her skin color or beliefs is despicable. But while cackling with glee over a human’s death is revolting, it is not a threat to violence and is legal.

But protection against prosecution for words doesn’t extend to complete immunity from unwelcome consequences. In 1981, after President Ronald Reagan was shot, a clerk in a sheriff’s office in Texas was heard saying, “If they go for him again, I hope they get him.” The clerk did not agree with Reagan’s cuts to welfare and Medicaid. 

When the sheriff found out about these comments, he fired the clerk. She sued, claiming a violation of her First Amendment rights, and demanded back pay and other damages. Her case went to the Supreme Court, where she won. The majority decided that because her job as a data entry clerk did not involve any “policymaking, or public contact role,” and because the comments were made in private to another employee, her First Amendment rights outweighed the interest of the state “in promoting the efficiency of the public services it performs through its employees.”

With that Rankin v. McPherson test in mind, it is instructive to look at what has happened to Democrats who celebrated Kirk’s murder. 

“I love when evil white cis men die, it’s literally my favorite thing,” a nurse at a hospital in Olympia, Washington, posted on social media after Kirk’s death. Because nurses make many life-or-death decisions every week, it is surely a problem that any of them would be openly excited by the prospect of death for a category of people accounting for some 40% of the population. Nurses who behave in this manner should be identified and fired.

Dozens of teachers have also been caught celebrating Kirk’s death on social media. One said Kirk’s murder was the “consequences of his actions,” while another said, “Looks like he took one for the team. Hope he is roasting!” These were not private comments, and they betray sick and deranged minds that should not be anywhere near the children they are educating. They should also be identified and fired.

But firing some people whose dealings with the public presume a level of impartiality and levelheadedness does not mean any business should be required to celebrate Kirk’s life. “If you want to go and print posters with Charlie’s picture for a vigil, you have to let them do that,” Bondi said in reference to an incident at an Office Depot in which employees refused to help make a Kirk poster. “We can prosecute you for that,” Bondi said.

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No, she can’t. Just as the Colorado Civil Rights Commission can’t force a baker to make a specialized cake to celebrate a gay wedding, Bondi can’t force Office Depot employees to make Kirk posters. Office Depot has the right to fire the recalcitrant employee, and it did so, because it has a legitimate right to expect that its staff will not discriminate against political viewpoints. It can also sack the employee simply because it finds her behavior disgusting. But Bondi cannot force the business, if it chooses, to turn down customers because it disapproves of their beliefs or advocacy.

If the Trump administration can show that someone threatened violence, it can prosecute him or her for threatening violence. But so-called hate speech has nothing to do with it. Likewise, if the Trump administration can show someone knew about the assassin’s specific plans before the killing, or helped him afterward, then, by all means, prosecute that abettor of murder.