Hate Speech Is Free Speech

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2:30Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures. This is Bloomberg Law with June Grosso from Bloomberg Radio. U.S. Attorney General Pam Bondi threatened to go after hate speech on a podcast last week. We will absolutely target you, go after you, if you are targeting anyone with hate speech, anything. And that's across the aisle. Bondi was wrong. Hate speech is not a crime. In fact, hate speech is free speech, protected by the First Amendment. Just ask the Supreme Court. Conservative Justice Samuel Alito wrote in 2017, quote,

3:28Bondi's remarks drew criticism across the political spectrum, and she tried to walk them back with some confusing posts on X. Joining me is First Amendment expert Timothy Zick, a professor at William & Mary Law School. Tim, can you define hate speech for us? Well, it doesn't have a definition in U.S. law or First Amendment jurisprudence. There's no category of hate speech that is unprotected under the First Amendment. That's in contrast to European countries and other countries that do have statutory prescriptions on speech that derogates or criticizes people based on gender or race or some other protected characteristic.

4:13But if the attorney general should know, in the United States, in general, hate speech is not criminally prescribable. The Supreme Court has protected hate speech in more than one case. The one that stands out in my mind is Brandenburg versus Ohio, The case involving the Nazi party marching in Skokie, Illinois in 1977. Well, the Supreme Court in that case and others has come down on the side of freedom of expression, right? In the sense that the government cannot criminalize or otherwise punish the expression of viewpoints, even if those viewpoints are offensive or vile or derogatory, right? So even speech in support of Nazism, just as a general matter, is protected speech.

5:01Speech that offends people based on race or gender or sexual orientation, that's also protected speech. And the Supreme Court has been consistent in drawing that line where it has, in the sense that, you know, whether it's Nazis marching in Skokie, that case reached the Supreme Court is actually a lower court case that decided, look, the town of Skokie cannot enact all these ordinances to try and prevent Nazis from marching or displaying Nazi regalia. The Supreme Court protects viewpoints even if they're vile. There are some narrow exceptions, right? If you threaten another person to file an injury or death, if you incite other people to engage in imminent unlawful activity that's likely to occur, Those sorts of things are not protected.

5:47The government cannot have the power to tell an audience in the United States what speech is appropriate or too offensive to be heard. But the court has recognized an exception to the First Amendment for threats of violence. How are they defined? mind. That's a narrow exception to First Amendment protection, right? So if you communicate what the court has defined as a serious expression of an intent to inflict bodily harm or death on another person, then you can be punished for that kind of speech. But the narrowness here is sort of like, you know, it has to be a serious expression. It can't be something said in jest.

6:26It can't be hyperbolic language where you say, well, this person should be home for their crimes, right? that sort of thing. It has to be more directed, more specific. And as the Supreme Court has recently said, uttered recklessly that you know there's a risk when you say the words that a person will perceive what you're saying is threatening, but you say it anyway. So it's not just threatening language. That's not unprotected speech. It's something far more specific than that. And when the Attorney General said, well, what I meant to say wasn't hate speech, really, it was press. Well, none of the speech that we've been talking about since Charlie Kirk's assassination, you know, constitutes threat, right?

7:07When you praise or celebrate someone's death, that's not a threat. So, you know, she got it wrong twice, essentially. She also said in her explanation, you can't call for someone's murder. You cannot swat a member of Congress. You cannot dox a conservative family and think it will be brushed off as free speech. These acts are punishable crimes and every single threat will be met with the full force of the law. Are all the things she mentioned punishable? Well, some of them are protected, right? It depends on the statute that you're looking at, you know, how narrowly it's defining harassment, for example, or threat.

7:45Calling for the murder of someone is not incitement. It is not a threat, right? I wish, you know, so-and-so would die. is a terrible thing to think, a terrible thing to say, but it's not unprotected expression under our First Amendment doctrines and jurisprudence. Yes, there's conduct that you can go after. If I repeatedly harass someone, whether it's online or offline, then that can rise to the level of harassment. But there I'm not being punished for my expression. I'm being punished for the act of repetitious harassment of another. And doxing is difficult, right? Because just publishing information about, say, where someone lives is not necessarily unprotected speech, right?

8:33A lot depends on the context. And again, as I said, the statute under which you're reviewing it. And wasn't there a Supreme Court case a few years ago involving threats on the internet? Counterman versus Colorado. Yeah, that was this very recent threat case the Supreme Court handed down. There was a singer who had some uninvited online messages, tried to block the person from contacting her. He just opened new accounts and kept contacting her. And eventually, this person was prosecuted for a form of harassment, which is really what the case sort of set up as. But the court below and then the Supreme Court treated it as raising a question of whether this person had communicated what are called true threats, as I described earlier, serious expressions of an intent to cause bodily injury or death to another.

9:26And what the court was wrestling with in that piece is the mental state of the speaker. Well, how do I know whether the person is communicating a threat? If the person knows of a substantial risk that the person he is communicating with is want to perceive the speech as threatening, then that's the kind of recklessness that the First Amendment requires before you label something a true threat. So the court was grappling with a really important sort of technical issue in that case, which was the mental state required for the speaker. And a number of courts before that had sort of adopted this subjective test.

10:03Well, if I'm the audience for that speech, and I perceive it subjectively as threatening, that should be enough. and the court was worried, well, that's not speech protective enough. That's going to cause misunderstandings to be translated into criminalized threats. We don't want that, but we also don't want a sort of lower standard. So let's find something in the middle, sort of a Goldilocks standard. And they settled on recklessness. And so the Supreme Court has been, would you say, particularly protective of free speech rights? I think that's its reputation, right? And I could probably come up with exceptions to that.

10:39But in general, I think it's fair to say that they're protective of freedom of speech. Yes. We have, you know, the attorney general's remarks. We had Todd Blanche, the deputy attorney general, said in an interview that people protesting while President Trump had dinner at a restaurant might have committed a crime. You have President Trump saying to ABC News reporter, we'll probably go after people like you because you treat me so unfairly. It's hate. Why is there this misunderstanding of hate speech? Well, I don't know if it's a misunderstanding. I mean, this has been sort of President Trump's longstanding position.

11:21He either doesn't understand or doesn't appreciate freedom of expression. So his view is that negative press isn't protected. You can pull the broadcast license of a broadcaster that publishes critical coverage of him. It's consistently negative. Right. That, of course, is contrary to the First Amendment. Going after your political enemy for things that they say is part of the sort of Trump mantra. But it is unconstitutional. And, you know, what's interesting to me is recently people said, oh, we've crossed some line here where the president is threatening retribution against his political enemy.

11:59We are nine months into a retribution campaign. It's gotten louder, but it's been there the whole time. I mean, they've gone after law firms, international students, the American Bar Association, and plenty of others up to this point. What's different is it's more explicit, I suppose one could say, and the drumbeat is getting louder. We're going to go after particularly so-called left-leaning speakers or organizations who say things that we don't like. And the First Amendment stands in complete opposition to that position. So what's changed? I mean, the Kirk assassination, horrific event bound to create sort of churn and backlash.

12:42But the administration's answer to that has been, again, we're going to go after the left, so-called, and we're going to punish speakers who say nasty things about Charlie Kirk or about President Trump. And the First Amendment just simply doesn't allow them to do that. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Timothy Zick of William & Mary Law School. People across the country, from teachers and lawyers to airline pilots and health care workers, have been fired, suspended, or disciplined over social media posts about Charlie Kirk and his death. Why the First Amendment doesn't protect them.

13:25In other legal news today, the Supreme Court said it will hear a Trump administration appeal that could topple a 90-year-old precedent and put the White House in control of federal agencies that have long been independent. The court's conservative majority also refused to let the person at the center of the case, Federal Trade Commission member Rebecca Kelly Slaughter, return to her job during the appeal. Trump is trying to fire slaughter despite a law that says commissioners can be removed only for specified reasons. The showdown gives conservatives and regulation opponents the chance to achieve a long-sought goal of overturning the Supreme Court's 1935 ruling.

14:11And remember, you can always get the latest legal news by listening to our Bloomberg Law podcast wherever you get your favorite podcasts. I'm June Grosso, and this is Bloomberg. Support for the show comes from public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500. Or, if my cash balance goes above$20 ,000, move the excess into my direct index.

14:49You approve of the workflow and your agent handles the risk. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined. An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by public investing.

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16:50Now we're helping companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business, IBM. Last week, Vice President J.D. Vance encouraged people to report anyone celebrating Charlie Kirk's murder to their employers. So when you see someone celebrating Charlie's murder, call them out in hell. Call their employer. We don't believe in political violence, but we do believe in civility. And across the country, people have been fired, suspended or disciplined over social media posts about Kirk. from teachers and lawyers to airline pilots and health care workers.

17:32Many employers have cracked down on remarks they deem inappropriate. I've been talking to Professor Timothy Zick of William & Mary Law School. The rules are different for private and government speakers, right? So if you're talking about a private employee, an at-will employee, who can be dismissed for any reason at all or no reason, then they can be dismissed for speech that they publish or communicate. There are only a few states where you get some statutory protection for political speech. But in general, you speak at your peril with respect to private employment. Public employment is very different.

18:13Public employees retain some First Amendment rights as citizens to speak on what are called matters of public concern, Newsworthy Matters, which certainly covers the speech that has been sort of debated post Charlie Kirk's murder. And it's complicated, right? So if you're a public employee and you say something offensive, let's say you praise Charlie Kirk's murder and you're a university professor, let's say, and your employer says, well, I'm going to terminate your employment. Well, putting aside the sort of tenure and academic freedom problems there, as a public employee, you have a First Amendment right to communicate that.

18:57But the Supreme Court has said what you get as a public employee if you speak on matters of public concern is a balance. We're going to balance your right to speak against the employer's interest in efficient operations. So across a range of public employment, what you might find in some cases is that courts will side with the employer. What you said was so offensive, it created disruption in the workplace, and we're not required to tolerate that. The First Amendment doesn't require that we tolerate that. So it can be complicated with respect to public employment, but it's much simpler with regard to private.

19:32it. The Supreme Court has taken a lot of cases involving the Trump administration on the emergency docket, but none of them that I can recall involved a free speech issue. Are you confident that the court, if one of these cases on hate speech came up to the court, that they would stick by their precedent? I think they would. I think, you know, the likelihood of the court taking a First Amendment case out of what I'll call the Trump 2.0 era, it's relatively high. It's not clear yet what the administration intends to do with respect to so-called hate speech investigations or prosecutions. Mostly what they're doing is threatening to investigate people for core political speech.

20:16So we wouldn't even be talking about hate speech. It would be more, you know, I'm going to go after George Soros organization because it supports left-wing positions, or it funds left-wing political activism. Well, it's clearly unconstitutional. I don't even know if the Supreme Court would be interested in a case like that. I'm assuming a lower court would say that's unconstitutional. But there are cases in the First Amendment realm that may make it to the court, some of them involving maybe the rights of non-citizens under the First Amendment, which the court has been unclear about. It may want to clarify that.

20:52Some of the university cases, the Harvard case, for example, where the administration is terminating funds, the university says based on their speech. And the court may be interested in that. Or maybe there'll be a press case, who knows, involving a broadcast license or something like that. I can imagine the court being interested in those cases. In those cases that you've mentioned, for example, the Harvard case, let's just take one. Is it difficult to prove that the administration is going after Harvard because of its speech? Well, the administration is its own worst enemy with regard to so-called retaliation claims, right?

21:34So one of the things you ask is, well, why did the Trump administration target Harvard for termination of funds? And let's add the other 10 investigations that Harvard has faced. It can be hard to prove, right? Because the administration is going to say, oh, no, we did that because of anti-Semitism on campus. And you start looking into that and say, well, you never held an investigation. You never found any facts. You didn't follow the law. What I'm left with is, you know, public statements by the education secretary, not to mention the president of the United States, that what we need to do is bring these universities to heel because they're too liberal, because their culture is too liberal.

22:14It's too left leaning. Well, that gives it away. Right. Assuming you can take the president's communications into account, but even if you can't, the education secretary has said this is what conservatives have wanted to do for a long time, to sort of lean on these universities who are indoctrinating students as a left -wing ideology. So it's all very explicit, right? In other contexts, in, say, past administrations or different governments, it might not have been so explicit, but they're very, very transparent, I think, the Trump administration about what they're trying to do. ABC is putting the Jimmy Kimmel show back on the air tomorrow night.

22:52But would you say that FCC chair Brendan Carr's statements about Kimmel would fit into that category you were just describing? The difficulty here is that Brendan Carr, the chair of the Federal Communications Commission, went on a podcast and threatened ABC. if it didn't do something. He said, we can do this the easy way or the hard way. And he's clearly threatening their broadcast license, or at least the licenses of their affiliates. That's who holds the licenses. So the government inserts itself. It's another one of these examples where, you know, ordinarily it might be difficult to say what role, if any, the government played.

23:35Well, here he is on a podcast telling you, I'm going to abuse the FTC's authority by jawboning and threatening, licensed affiliates for speech that we think, we, the Trump administration, think is offensive with regard to Charlie Kirk. Now, they pitched this sort of misinformation or he got it wrong. Plenty of people got the facts wrong in the early going with respect to Kirk's statement. So that doesn't single Jimmy Kimmel out. So this sort of agenda, particularly in the broadcast realm, by Brendan Carr and the FCC and other agencies to come down on broadcasters and the press and to do so explicitly because of their coverage, whether it's their editorial decisions they make as reporters or, in this case, comments about a matter of public concern.

24:33And it's inconsistent with law, federal law, for the FCC to intervene in that respect. And it violates the First Amendment. And are there other business interests at work in these cases as well? And there's another twist to this. There's another layer. And when you talked about the affiliates who do hold the licenses, the corporations that own those affiliates, one of them has a big merger application pending with the Trump administration. And guess what? I really want that merger to go through. I better play ball. I better do it the easy way. So it's layers of leverage here. It's not just Brendan Carr, you know, mouthing off about, you know, easy way or hard way.

25:15It's behind the scenes. You've got people who are interested in big time corporate mergers with these affiliates. And their concern is, boy, I better not cross some line if I can figure out where it is. with regard to the Trump administration or I won't get my merger. And that's already happened. Paramount is the other example there, right? They did it the easy way. They played ball and they got their merger through. So it's very mafia-like as people have described it, right? Boy, this is a really nice restaurant. It'd be a shame if you lost it. It's kind of like that, but even more explicit. But you're right, of course, you know, when it comes to comedy, people have been skewering presidents for, you know, since we've had television and even before.

26:11And they haven't been punished for it. We are in a different, darker place with regard to freedom of expression in the United States. And tell us about the repository you're keeping of these lawsuits concerning the First Amendment. It's at First Amendment Watch. so they're hosting it. So what I've done is I've taken all of the executive orders that relate to freedom of expression. So I've got all of those organized on the site by subject matter. And then I have litigation with regard to those executive orders and also Trump's lawsuits against the press. So all the litigation and the pleading and then commentary, broadly speaking, right?

26:55Some of it's legal commentary. Some of it's what I read in the press, right? I can't capture everything. But if I see something and I have people sending me items, then that goes in the repository as well. And of course, with regards to the Charlie Kirk murder and the fallout from that, that's its own avalanche of stuff. You know, the media is quite rightly focused on it, but there is a lot of commentary and you can really miss things that are going on. For example, and I'm doing this now on Substack because I need another outlet, a district court just invalidated the National Endowment for the Arts process for reviewing grant applications because they were weeding them out based on whether they promoted gender ideology.

27:41So there's another sort of viewpoint-based, unconstitutional Trump administration policy, the zone is just so flooded. They are pressing First Amendment boundaries on purpose. They want to see how far they can go. And even when they lose in court, I think they just say, well, shrug, it served its purpose anyway, because we're scaring people. We're chilling them. They're going to self-censor. I think that's happening to the press. You know, when I read headlines and there are times they keep changing them and they get friendlier and friendlier to a sort of right-wing ideology, almost as a way to sort of say, don't look over here.