Pam Bondi is playing with fire; she seems to have thrown caution to the wind. One almost has to wonder if the Attorney General of the United States doesn’t understand free speech?
On Monday, she told a popular podcaster:
“There’s free speech and then there’s hate speech, and there is no place, especially now, especially after what happened to Charlie (Kirk), in our society… We will absolutely target you, go after you, if you are targeting anyone with hate speech.”
Bondi knows full well hate speech is protected. The Supreme Court has said time and again that government cannot prosecute speech simply because it is hateful. As vile and loathsome as the Westboro Baptist Church’s protests were, the Court ruled – rightly – their speech was still protected under the First Amendment.
The only exceptions are narrow: incitement, true threats, or fighting words. But outside those categories, however abhorrent, it is protected from government persecution.
Despite pushback from conservative commentators, Bondi didn’t stop there. That same evening on Hannity, she reacted to an incident in which an Office Depot employee refused to print posters for a Charlie Kirk vigil:
“Businesses cannot discriminate. If you wanna go in 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.”
Office Depot later fired the employee (their prerogative, we’ll get there).
Hearing her words poses a question. Has Bondi forgotten Jack Phillips, the Colorado baker who refused to design a wedding cake for a gay couple in 2016? That case went all the way to the Supreme Court. The Court did not issue a sweeping decision on whether businesses can refuse service, but it did rule that Colorado’s Civil Rights Commission had shown hostility toward Phillips’ religious beliefs, violating the neutrality the First Amendment demands.
The principle still matters. If supporting a baker’s right to refuse service – offensive to some –was defensible, then surely a print shop employee refusing a request for posters – offensive to others – deserves the same protection. The law transcends politics. Otherwise, the law is inconsistent, and inconsistency in the law is dangerous.
The Founders, flawed as they were, foresaw these problems. That’s why the First Amendment is chiefly about restraining government censorship, not private disputes. In the private sphere, the marketplace of ideas and the consequences of public opinion serve as a better barometer, a better reckoning of speech’s consequences.
The same freedoms that let Phillips say no are essentially the same freedoms that let Office Depot fire an employee who said no or would have validated the employee’s decision to say no, had the company agreed with the decision. That’s how the marketplace works. Office Depot will live or die by its choices as did the baker. Maybe people will be outraged; maybe they won’t care. That’s the beauty of letting the public decide. The Founders knew government would only muck up the works when it comes to these questions.
Bondi certainly knows all this. It isn’t lost on her. Why she’s making the comments she is, that’s for others to speculate. But one thing is certain: America shouldn’t buy it. And I don’t believe Americans will.
Editor’s Note: Axios issued a report after this commentary was drafted noting clarifications issued from Bondi saying hate speech will not be prosecuted. Click here to read.