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| Pam Bondi knows she cannot roll back the First Amendment to our Constitution, she's hoping that cowardly employers will do it for her. |
During a recent appearance FOX News, Pam Bondi said that "There’s free speech and then there’s hate speech. We will absolutely target you, go after you, if you are targeting anyone with hate speech," Bondi made the comment in response to alleged claims fo people "celebrating" the recent assassination of right-wing propagandist and frequent purveyor of hate-speech Charlie Kirk. Hate speech is defined by Oxford languages as: "abusive or threatening speech or writing that expresses prejudice on the basis of ethnicity, religion, sexual orientation, or similar grounds." The challenge for Bondi is that the Supreme Court ruled in Matal v. Tam that there is no First Amendment exception for hate speech. A quick and dirty paraphrase of the ruling is that consequences for hateful speech may come from the community which condemns an individual's actions, or an employer who requires certain standards of decorum from their employees, but it cannot come from a government policy.
Shortly afterward, Bondi backtracked and said "Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment. It’s a crime." That second part is correct, but it also completely undermines all of the finger-pointing and claims of "hate speech" by conservatives online. The two relevant Supreme Court precedents regarding incitement and true threats, which Bondi was referring to in her second statement, are Brandenburg v. Ohio and Counterman v. Colorado.
Brandenburg specifically states that speech may only be limited or punished when it is shown to lead to "imminent lawless action". If a mob has formed, and someone is speaking to rile up that crowd and they then go on to attack police officers and ransack a Federal building, that is the kind of act that may be prosecuted by the Federal Government by citing the Brandenburg precedent. Conservative claims that people who point out the irony of Charlie Kirk dying from sniper-fire after he said that "some gun deaths are worth it to preserve our Second Amendment rights," are advocating for violent attacks are speculation and projection, and cannot be prosecuted under the Brandenburg precedent.
The Counterman case refers to "true threats" and requires that in order for threatening language to be prosecutable, that the threat has to be explicit enough so that the person who made the comment clearly comprehends how the language used could be interpreted as threatening. This is an important distinction to make as once again, conservatives are trying to claim that anyone who quotes Charlie Kirk's old podcasts to demonstrate what a bigot he was are acting in a threatening manner. Counterman also provides a defense against people who are expressing an honest opinion and have no intention of threatening anyone, but who are falsely accused of threats by hysterical individuals trying to promote a political agenda, in that it requires that the person accused of making the threat must have some sense of how their language could be interpreted as a threat.
What Bondi is really hoping for is a wave of anticipatory obedience from cowardly employers all across the country. Anticipatory obedience is when a party decides to "play it safe" by acting in accord with the demands of an authority figure, even when that figure is clearly exceeding their authority and violating the Constitutional Rights of individuals. If enough school boards, public authorities and government contractors decide they want to play it safe and "avoid creating problems for themselves", then Bondi and Trump will be able to achieve de facto enforcement of a government policy that the Judicial Branch would not be willing to grant them.
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