The Free Speech Inversion

A baffling arc for Pam Bondi and Donald Trump seems to reboot a tired old argument in reverse.

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US Attorney General Pam Bondi is at best incredibly confused. In the aftermath of the murder of Charlie Kirk and a broad range of reactions from the left, she has taken great pains to muddy the distinction between leftist endorsements of violence and general complaints about Kirk that offend conservative sensibilities.

“There's free speech and then there's hate speech,” Bondi said to the podcaster Katie Miller on Monday. “We will absolutely target you, go after you, if you are targeting anyone with hate speech.”

This feels like Bizarro World. I'm sure you agree. Didn't this whole saga play out years ago, almost exactly the same, with leftist academics in the role of Bondi and various conservative rabble in the role of the free speech warriors? Are we really so amnesiac as to reboot that story with flipped roles and not even blink at the dissonance?

In case it needs to be said, I'll say it. No, Ms. Bondi, there is no law against speaking ill of the dead. You can say you hated Charlie Kirk, or even that you don't feel sorry for his family, and this does not rise to the level of a credible violent threat.

The concept presented by Bondi is absurd on two levels. First, there is no dichotomy between hate speech and free speech. They exist on two entirely different axes. Free speech, after all, basically just means speech that's not illegal, whether hateful or benign. Second, even if we can build a coherent definition of the extralegal term ‘hate speech,’ the online Democratic sentiment in question certainly does not qualify.

The posts are not hate speech, and hate speech is not illegal, and thus Bondi has made a fool of herself on two counts for no reason. She would be better off calling the Democratic posts ‘incitement,’ or anything that actually has a shred of prosecutorial precedent.

What is hate speech, anyway? Obviously it means more than saying you ‘hate’ tuna sandwiches or cashmere sweaters or even goths at the mall. It has a fraught and specific ideological history in America. In short, ‘hate speech’ has mostly been used since World War II by left-liberal elements to rhetorically cordon off identitarianism stemming from what a leftist might call a place of privilege. If you lived through the past ten years in the West, you should understand what that means well enough.

This might come as a surprise to the post-sixties reader, but in the forties and fifties there were actually some civil rights victories against hate speech on the grounds of it being ‘group libel.’ While later rulings fall consistently on the side of free individual expression, it's true that the landmark 1952 case against hate speech Beauharnais v. Illinois has never been completely overturned. There is indeed some remote world where saying that the black, white, red, or yellow man wants to rob you blind becomes illegal speech again, as it was in the fifties once Beauharnais was decided.

Is that the world Bondi wants to return to? If so, her position is at least slightly internally coherent, although it would require ignoring about seventy years of precedent. What's more, to achieve her stated aims, Bondi would have to expand the ‘groups’ of this ‘group libel’ restriction to include not just the traditionally protected classes of civil rights but also political affiliations. What does an America look like where it's illegal to say that Republicans, communists, liberals, or anyone else are out to destroy the country? How does political discourse even work in an environment with those kinds of chilling effects?

It almost feels fatuous to spend this much time wargaming the second-order effects of statements made completely off the cuff. Pam Bondi seems to be starting with a goal, in this case punishing leftists and liberals, and then reverse-engineering a legal-sounding case for it based on pure indignation. I know she's a lawyer, but perhaps it would behoove her to consult with a couple more of her fellow practitioners before making her ad hoc case. At least John Yoo did his homework when he was building his case for a total George W. Bush executive presidency.

An alarmist would take Bondi's words at face value and say we are already in an authoritarian state where dissenters can be rounded up and shipped to Rwanda for mocking a lionized regime-loyal martyr. On paper, based on Trump's stated positions, this could be construed as reasonably true. He has declared his total immunity and indicated willingness to ignore the courts in Jacksonian style. He has talked about denaturalizing citizens, and he is already shipping deportees to Africa. All the technical pieces are there for your American-born aunt to be collected by ICE, denaturalized as a terrorist, and summarily shipped abroad over the protests of the courts for the crime of having posted an ugly cartoon of Charlie Kirk that says 'good riddance.'

Will this happen, though? Probably not. So why won't it? The Trump administration, while eager to scrap with lower federal courts, still seems somewhat deferent to the Supreme Court. The Supreme Court, in turn, seems to be retaining some semblance of constitutionalist sanctity amid the vibes-authoritarianism of the Trump-Vance administration. There is also, although it seems somewhat quaint, the faint possibility of a swing voter rebuke that deters such action.

Bondi already seems to be backpedaling, albeit in a way that sows more confusion and conflation of terms while admitting no error. “Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment,” she wrote on X on Tuesday. Well, yes, obviously? That's a bit like saying that speech about tomato soup that crosses the line into violent threats is not protected by the First Amendment. The tomato soup is not the salient element here! Still, at least she seems to have gotten the picture that it's the threat that makes something illegal.

One must imagine mortified federal lawyers got Bondi to make this blustering tactical retreat. One must also imagine that the GOP will not actually full-send commit to burning post-sixties First Amendment precedent to ash in a way that many Republicans, including Charlie Kirk himself, would find detestable.

For the moment, though, the GOP is the party of Trump. He is the head and they are the body. Free speech does not seem chief among his concerns. Asked about Bondi's words, he told a reporter on Tuesday that the federal government would “probably go after people like you, because you treat me so unfairly, it’s hate. You have a lotta hate in your heart.” There was nothing in the way of commitment to political expression in his answer.

If MAGA does fully take this path, institutionalist liberals and defecting conservatives may find themselves alone, besieged on both sides by broader rightist and leftist forces, fighting a desperate defense from the embattled high ground of the American Constitution as written.

Let us hope, if MAGA does reject the Bill of Rights, that at least a portion of Democrats who reflexively disdain it might come to see its virtues once again.

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