What is the federal offense of “hate speech”?
It’s a good question because there is no such offense. That didn’t stop U.S. Attorney General Pam Bondi from threatening to use the authority of her office to combat it. “We will absolutely target you, go after you,” she said, “if you are targeting anyone with hate speech.”
Bondi made the comment following the murder of Charlie Kirk. On a podcast hosted by Katie Miller, a former DOGE official and the wife of White House Deputy Chief of Staff Stephen Miller, Bondi explained her understanding of the law: “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.”
In fact, hate speech is free speech. The blessing and the curse of our First Amendment rights is that they allow us to say hideously offensive things without criminal consequence. The messages online celebrating the death of Kirk may be repugnant to most of us, but the government cannot put someone in prison simply for expressing them. Just as when the Supreme Court allowed the Nazis to march in a Jewish community in Skokie, Illinois, in 1977, Americans remain free to say despicable things.
You might get fired from your job for making awful statements that could reflect poorly on your employer. The First Amendment applies to government action, not private companies. But the Justice Department cannot “go after” you for hate speech.
Bondi’s statements were quickly condemned by critics on the right and the left. Texas Republican Sen. Ted Cruz said that the First Amendment “absolutely protects hate speech. It protects vile speech. It protects horrible speech. What does that mean? It means you cannot be prosecuted for speech, even if it is evil and bigoted and wrong.” California Democratic Rep. Ro Khanna posted a video clip of the interview on X with the message, “So now, @JDVance, your Administration is prosecuting hate speech even though you ran on standing for the First Amendment & lectured Europe about not censoring hate speech?”
The next day, Bondi walked back her comments — sort of — when she posted a lengthy message on X explaining what she really meant to say. “Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment,” she wrote. Much better. Apparently, legal advisers at the Justice Department had scrambled to educate the AG on the actual legal line between free speech and hate speech.
Bondi should have quit while she was ahead. Instead, in the same post, she said more, revealing that her mission seems to be more about stoking political division than deterring crime. “For far too long,” she wrote, “we’ve watched the radical left normalize threats.” Huh? Did she miss the episode when Minnesota lawmaker Melissa Hortman and her husband were shot and killed in their own home this summer? Following their deaths, Utah Republican Senator Mike Lee mocked the state’s governor and former vice presidential candidate Tim Walz by calling the attack “Nightmare on Walz Street.” Did Bondi forget that when former House Speaker Nancy Pelosi’s husband was beaten with a hammer in his own home by an intruder, Donald Trump Jr. made crude jokes online about Halloween costumes? And did she overlook President Trump’s pardon of more than a thousand insurrectionists who attacked the US Capitol on Jan. 6, 2021, using brute force to block the peaceful transfer of presidential power? Bondi’s statement reportedly coincided with the removal from the DOJ website a study showing that White supremacist and far-right violence “continues to outpace all other types of terrorism and domestic violent extremism” in the US.
Her “cleanup” post went on to list the kinds of threats that amount to crimes, but distorted them as threats to only one segment of the population. “It is clear that this violent rhetoric is designed to silence others from voicing conservative ideals,” she wrote. “We will never be silenced. Not for our families, not for our freedoms, and never for Charlie. His legacy will not be erased by fear or intimidation.”
It is particularly ironic to use Kirk’s death to target hate speech in light of the conservative activist’s own views. Kirk himself posted a message on X in 2024 that 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.”
Of course, Bondi correctly noted that federal law prohibits threats of violence. To protect free speech, the Supreme Court has set a high bar in such cases, requiring prosecutors to show what is known as a “true threat.” As Supreme Court Justice Elena Kagan described it in a 2023 opinion, “True threats are serious expressions conveying that a speaker means to commit an act of unlawful violence.” The definition excludes statements made as “hyperbole” or “in jest.” Most examples of hate speech, even the gleeful celebration of a tragedy, do not rise to that standard.
The gaps in Bondi’s understanding of First Amendment law do not end there. In addition to her comments about hate speech, she also threatened to prosecute an employee of an office supply store for allegedly refusing to print flyers for a vigil honoring Kirk. “Businesses cannot discriminate,” she said during a Fox News broadcast. “If you want to go 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.” Bondi added that the DOJ’s Civil Rights Division was “looking at” an Office Depot employee over such conduct. However, the Supreme Court has ruled that businesses are protected from that kind of forced speech in cases involving a bakery and a web designer who refused to provide services for same-sex weddings.
American society has ways to deter hate speech through public criticism or even termination from employment. But our First Amendment protects us from government action against speech that falls short of true threats. When the nation’s highest law enforcement official misstates the law, as Bondi has, she creates a dangerous chilling effect on even clearly constitutionally protected speech. And when she suggests that the law protects only one political party, she endangers Americans’ right to equal justice under the law.
Barbara McQuade is a professor at the University of Michigan Law school, a former U.S. attorney and author of “Attack from Within: How Disinformation Is Sabotaging America.”