A Not-So Normal Tuesday

It has been a day where things are so not normal that you might feel a little bit gaslit. Among other things, in the wake of Charlie Kirk’s murder, Attorney General Pam Bondi has been saying the Justice Department will “absolutely target” hate speech. Presumably, she would be the one who gets to define what qualifies. "There’s free speech and then there’s hate speech," Bondi told Stephen Miller’s wife Katie during an episode of her podcast. "We will absolutely target you, go after you, if you are targeting anyone with hate speech.”

But that’s most definitely not what the law permits. The First Amendment protects hateful speech. That’s the reason Nazis have been able to march on the streets in Skokie, Illinois, where many Holocaust survivors lived out their lives after the war. The First Amendment matters the most when it comes to the speech we like the least, protecting people’s right to air their views, no matter how extreme, because in this country, we make decisions in a free marketplace of ideas, and not one where the morality police get to decide what is and isn’t acceptable. We tolerate speech we disagree with, even speech that we find horrific, in order to protect our own right to speak.

We discussed one of the most significant limits on free speech rights in the context of potential criminal charges Donald Trump might face following January 6, in a post back in 2022, and it’s worth reiterating that conversation tonight.

In criminal cases, a defendant can avoid conviction if he can show that the conduct he is charged with committing involves speech protected by the First Amendment. The legal standard is set forth in a Supreme Court case, Brandenburg v. Ohio, from 1969. The defendant, Mr. Brandenburg, was a Ku Klux Klan leader. He gave a speech on a remote farm, complete with Klan regalia and racist and antisemitic comments. He invited a reporter to observe. Parts of his speech were taped. He spoke about what he called "revengeance" against Black people and Jews, engaging in the sort of toxic comments you would expect given his affiliation. He called for a future march on Washington, D.C.

Brandenburg was prosecuted and convicted in state court in Ohio, and his conviction was affirmed by the state’s Supreme Court on appeal. He took it to the United States Supreme Court, and their decision is still the standard today for deciding when speech, including hate speech, loses its First Amendment protection and can become the subject of a criminal prosecution. The Court held that speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and is “likely to incite or produce such action.”

To cross over the line into speech that isn’t protected by the First Amendment, a speaker has to advocate violence or other criminal conduct, the speaker’s words must be likely to incite it, and the conduct must be “imminent.” It’s hard to believe former Florida Attorney General and current U.S. Attorney General Pam Bondi could be ignorant of Brandeburg, but, she said she was going to “target” hate speech.

Here’s the good news: Bondi’s comments provoked outrage. And not just from people like me. Texas Senator Ted Cruz said, “The First Amendment absolutely protects speech. It 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.” That’s a correct statement of the law, and it doesn’t matter whether it comes from the political left, the political right, or anywhere else in our society. Unless it crosses the Brandeburg line, it’s not a crime.

Fox News host Brit Hume posted on X that “Someone needs to explain to Ms. Bondi that so-called ‘hate speech,’ repulsive though it may be, is protected by the First Amendment.”

Ultimately, Bondi was forced to walk back her comments and pretend she’d only been talking about comments designed to incite violence all along.

Just when we thought it had vanished, it turns out that there is some conduct that is so profoundly un-American that it’s unacceptable, even if only because it’s plain to see how it could rebound against MAGA if it’s used against the left.

Ironically, this was happening as Donald Trump sued The New York Times for $15 billion over stories written by Peter Baker, Russ Buettner, Susanne Craig, and Michael Schmidt. At bottom, Trump doesn’t like reporting that’s critical of him. The Times called the suit meritless and said it was “an attempt to stifle and discourage independent reporting.” The paper committed that it would not be intimidated and said it would “continue to pursue the facts without fear or favor and stand up for journalists’ First Amendment right to ask questions on behalf of the American people.” After watching The Washington Post and the Los Angeles Times bend the knee and TV stations settle lawsuits Trump brought that First Amendment lawyers openly scoffed at, this too was refreshing. We take the good where we can get it these days.

Also today, Tyler Robinson was charged with Charlie Kirk’s murder in Utah. You can read the charging document here. You’ll notice that the charges are signed by the county prosecutor, not a grand jury. Utah is one of the states that does not require indictment by a grand jury in a criminal case. That’s your constitutional law trivia for tonight—grand juries are constitutionally required in the federal system, but that requirement has not been applied to the states, and while most of them use grand juries and Utah law permits their use, it does not require it. Instead, there will be a hearing on September 29 where prosecutors will have to convince a judge that probable cause exists for them to move forward. Based on the evidence they recite, Robinson appeared to confess to his roommate, with whom he is romantically involved. A confession must be corroborated to provide the basis for conviction in a murder case, but prosecutors will have the gun Robinson used, apparently a family heirloom, and the fact that both of his parents believed they recognized him in footage received from the scene.

Finally, a couple of quick notes about my book, Giving Up Is Unforgivable. Monday, September 22, will be the last day to preorder a signed copy through my local bookstore, Little Professor. I’m told they have so many orders they’re beginning to doubt my ability to sign all the books without getting Carpal tunnel syndrome, so they’re cutting off early. I am deeply grateful to, and more than a little humbled by, all of you who have supported me by buying the book!

If you’re in the New York City area and tried to get tickets to see Preet Bharara and me discussing the book on October 21 at the 92nd St. Y, only to learn they were sold out, there’s good news! They’ve moved us across the street to a larger venue and there are more tickets available. And if you’re looking to join at one of the other stops on the tour, you’ll find me here with tickets still available in many locations. I’m really looking forward to getting to see friends and make new ones on the book tour. You are the best part of this!

We’re in this together,

Joyce

Share