The universal condemnation of Attorney General Pam Bondi’s comments and demands for a new free speech absolutism were the rare positive developments in a horrible, baffling week, but I can’t help thinking much of it is situational and the battle will continue.
Earlier this week, Attorney General Pam Bondi managed to do the impossible when she united the right and the left in almost universal condemnation of her remarks concerning the application of so-called hate speech in the wake of Charlie Kirk’s assassination. “There’s free speech and then there’s hate speech,” she told the Katie Miller Podcast, “and there is no place, especially now, especially after what happened to Charlie, in our society…We will absolutely target you, go after you, if you are targeting anyone with hate speech.” Though she attempted to clarify the comment in a series of follow up posts on X, claiming she was referring specifically to speech that incites violence, “Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment. It’s a crime,” next to no one on either side of the aisle were pleased. For their part, progressives generally saw it as an abandonment of President Trump’s campaign promises and a betrayal of fundamental principles. Angela Belcamino, host of the BOLDTALK podcast, who proclaims herself a proud lib on her X profile, posted “‘Pam Bondi’s ‘free speech vs. hate speech’ is dangerous. It suggests a clear line, inviting subjective censorship. Vague ‘hate’ laws can silence dissent. Protect free speech, even when it offends, or risk losing it to those in power. Agree?” Michael Tracey noted, “Pam Bondi says ‘it’s not free speech’ if you come out and say ‘it’s OK what happened to Charlie.’ Sorry Pam — but that actually *is* free speech under the US Constitution and Supreme Court precedent She also says that people posting ‘hate speech’ online should be ‘shut down.’” For their part, conservatives said much the same. Savannah Hernandez, a contributor at Mr. Kirk’s own organization, Turning Point USA, went so far as to call for Attorney General Bondi’s firing, “‘There’s free speech and then there’s hate speech’ is the most destructive phrase that has ever been uttered. And Pam Bondi just said it. She needs to be removed as attorney general now.” Conservative influencer Mike Cernovich suggested something similar, “We don’t need DOJ to prosecute ‘hate speech.’ Pam Bondi really isn’t ready for this moment. Not to mention the Epstein files nonsense. We need CRIMINAL ACTS by ANTIFA prosecuted.” Many on both sides retweeted Mr. Kirk himself, who had previously written, “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.”
While this was a pleasant surprise, color me skeptical as they say. The challenge is simple: The phrase “hate speech” might be relatively new, but politicians have known for millennia, at least since Plato, that controlling speech is a key tool to wield unchecked power. President John Adams, for example, was such a staunch defender of what came to be known as civil rights that he staked his reputation on defending a soldier who had killed an American Colonist in the Boston Massacre, not exactly a popular position at the time. As he put in his autobiography, the right to a lawyer and a fair trial was sacrosanct to him, “I had no hesitation in answering that Council ought to be the very last thing that an accused Person should want in a free Country … And that Persons whose Lives were at Stake ought to have the Council they preferred … and that every Lawyer must hold himself responsible not only to his Country, but to the highest and most infallible of all Trybunals for the Part he should Act.” When he became President, however, he abandoned at least some of the moral high ground by signing into law the Alien and Sedition Acts of 1798, generally considered to be one of the most egregious attacks on free speech in American history, one intentionally designed to silence opposition. In addition to raising the residency requirement for citizenship, authorizing the President to deport “aliens” and allowing their arrest and imprisonment if necessary, it became a crime to “print, utter, or publish…any false, scandalous, and malicious writing” about the government. Though the noxious acts were widely seen as ensuring Federalist defeat in 1800, the impulse to restrict speech for political purposes never went away. Ironically, Adams son, John Quincy, would take up the mantle of fighting for free speech four decades later when pro-slavery Southerners attempted to restrict debate in Congress to both maintain their power and ensure the unconscionable institution survived. “These are the tenets of the modern nullification school. Can you wonder that they shrink from the light of free discussion? That they skulk from the grasp of freedom and truth?” He noted in a public address in response to multiple gag orders.
Almost a century later, the Espionage Act of 1917 was used to suppress anti-war speech. At the time, Charles Schenck and others distributed pamphlets urging resistance to the draft and the government responded by prosecuting him for obstructing the war effort. When he tried to use the First Amendment as a defense, the Supreme Court ruled unanimously against him, claiming “in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.” In this case, wrote Justice Oliver Wendell Holmes, Jr., “the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” It would take another fifty years for the Supreme Court to revisit this decision and ultimately overturn it in Brandenburg v. Ohio, where government restrictions on speech were limited to the incitement of imminent lawless action and a few other circumstances, redefining the First Amendment for the modern era. Though that settled the matter from a legal perspective, some impulses simply will not die and the rise of social media gave rise to various calls to regulate speech complete with government monitoring and tacit support in suppressing the voices of average Americans. As the Twitter Files revealed in 2022, social media companies intentionally and wrongfully suppressed reporting by The New York Post and other outlets about Hunter Biden’s laptop, at times in coordination with the FBI, falsely using a hacking policy to restrict speech that was not hacked simply because they didn’t like it. At the time, Twitter employees knew something foul was afoot, that the hacked information policy was “just freelanced” and “everyone knew” it was “fucked.” “Hacking was the excuse, but within a few hours, pretty much everyone realized that wasn’t going to hold. But no one had the guts to reverse it,” explained an ex-employee. “I’m struggling to understand the policy basis for marking this as unsafe,” questioned Trenton Kennedy, a communications official, in an internal email. “Can we truthfully claim that this is part of the policy?” asked Twitter Vice President of Global Communications Brandon Borrman in another email.
Journalist Matt Taibbi revealed the extent of the coordination with the FBI shortly after. Between January and November 2020 upwards of 80 agents were devoted to Twitter alone, exchanging over 150 emails with Twitter’s then Trust and Safety Chief, Yoel Roth. According to Mr. Taibbi, there are a “surprisingly high number [of] requests by the FBI for Twitter to take action on election misinformation, even involving joke tweets from low follower accounts.” As he described it, “It’s no secret the government analyzes bulk data for all sorts of purposes, everything from tracking terror suspects to making economic forecasts,” but the “#TwitterFiles show something new: agencies like the FBI and DHS regularly sending social media content to Twitter through multiple entry points, pre-flagged for moderation.” This included trolling Twitter for potential violations of service of the most minor kind, and then alerting the moderation team, as though the FBI was responsible for enforcing end user license agreements rather than the law, which of course is supposed to include First Amendment protections for free speech. “Hello Twitter contacts,” Fred from the San Francisco Field office began on November 10, 2022, meaning this trend continued until at least Elon Musk took over, the “FBI San Francisco is notifying you of the below accounts which may potentially constitute violations of Twitter’s Terms of Service for any action or inaction deemed appropriate within Twitter policy.” Twitter promptly reviewed and suspended four of the accounts in question, including for this joke “I want to remind republicans to vote tomorrow, Wednesday November 9.” Less than a week earlier, the FBI’s National Election Command Post, led by Elvis Chan, flagged even more accounts that “may warrant additional action.” The follow up was dutiful then as well. “Hi Elvis, Thank you for your patience as our team assessed the accounts that you flagged.” Sometimes, the requests were so fast and frequent that Twitter employees were congratulating themselves on the “monumental undertaking of reviewing them all.”
In the wake of the horrific murder of Charlie Kirk, should we be remotely surprised that some conservatives want to get in on the act? Even as Attorney General Bondi’s comments were roundly criticized, President Trump himself took aim at the media for what he perceives as false stories and many conservatives openly championed the firings of various individuals for celebrating Mr. Kirk’s death on social media. While this is certainly a distinction with a difference, there is obviously the potential that legitimate concerns about the promotion of violence by people in positions of influence devolves into a political witch hunt. Putting this another way, I think most can agree that teachers and healthcare professionals filming themselves dancing and singing after a heinous killing is well beyond the realm of reasonable discourse and requires accountability, but what about someone merely criticizing Mr. Kirk’s position and stating their belief that he was a polarizing figure? There is also the question of what responsibility and accountability is appropriate for media figures covering and opining on the story. Before Mr. Kirk was even pronounced dead, Mathew Dowd openly blamed him for his own murder on MSNBC, describing a man about to die as “one of the most divisive, especially divisive younger figures in this, who is constantly sort of pushing this sort of hate speech or sort of aimed at certain groups. And I always go back to, hateful thoughts lead to hateful words, which then lead to hateful actions.” “I think that’s the environment we’re in, that the people just — you can’t stop with these sort of awful thoughts you have, and then saying these awful words, and not expect awful actions to take place. And that’s the unfortunate environment we’re in,” he added. MSNBC, to their credit, fired him before the end of the day, but what about figures such as ABC’s Matt Gutman, who referred to text messages exchanged between the killer and his lover as “unexpectedly touching,” not once but twice? Though he apologized and I’m not certain it rises to the level of dancing on someone’s grave, one has to wonder why a network would employ someone with what they used to call a tin ear. Then, there is Jimmy Kimmel, who chose to use his platform to accuse half the country for political reasons while lying himself, claiming Mr. Kirk’s shooter was one of MAGA’s own. “We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it.” Disney responded by putting his show on indefinite hiatus after Trump’s FCC commissioner threatened an investigation. Perhaps needless to say, Democrats and progressives cried foul – despite targeting every conservative voice in America for cancellation for decades and demanding the FCC use the fairness doctrine to shut down conservative voices.
Ironically, Mr. Kirk himself was frequently accused of promoting hate speech, what some have described as a “Toxic Legacy of Hatred and Division.” According to Christopher D. Cook, writing for Common Dreams, “We can condemn political violence and this hideous murder while also condemning Charlie Kirk for the rotten, vile hatred he fomented.” Late in the same article, he went even further, claiming “What needs to be said now, even or especially in this moment, is that Charlie Kirk mightily helped foment the rage and division that seems to engulf and define our nation today. Kirk helped create this toxic, poisonous stew we are drowning in—he fed it and profited from it” before concluding “No one person will save us. We can hope (and work) for a cooling period that at least lowers the flame and slows the spiral. We can all say, stop the violence, stop the shootings. And let’s also say, just as strongly—stop the hatred, stop the fearmongering, stop the bigotry.” Race, Racism, and the Law declared him a “white supremacist,” claiming “the record shows a pattern of rhetoric, organizational culture, and alliances that echoed white supremacist and Christian nationalist ideologies.” They concluded, “Kirk’s death by gunfire was not just a personal tragedy; it was a symbolic collision of the two pillars of his politics: a defense of white supremacy and an unflinching devotion to unfettered gun rights. He spent his career denying systemic racism while building a movement that normalized bigotry and courted extremists. At the same time, he insisted that preventable deaths were an acceptable cost of preserving the Second Amendment. In the end, the violence he rationalized and the racial fear he amplified converged in his own fate. That is the legacy he leaves behind—a stark reminder that when a nation tolerates racism and violence as the ‘price of liberty,’ both become self-perpetuating forces that consume even their champions.” The shooter himself also declared Mr. Kirk a hater, writing to his lover, “I had enough of his hatred…Some hate can’t be negotiated out.”
Perhaps needless to say, Mr. Kirk would have disagreed. He would’ve said he was simply telling the truth as he sees it, leaving us back where we began. The universal condemnation of Attorney General Bondi’s comments was the rare positive development in a negative, baffling week, but I can’t help thinking much of it is situational. Progressives are concerned they will be subject to some of their own tactics and are rallying behind free speech as a shield they will abandon for the usual litany of hate speech and microaggressions once it becomes expedient. Conservatives, while perhaps more universally supporting the principle in principle, have a vested interest in silencing certain voices, however despicable, in practice. While I don’t think the silencing has gone so far as to constitute an assault on free speech at this point, there will be a strong temptation that it does. After all, if a giant like Adams couldn’t live up to his principles, what hope do us mere mortals have?
Confessions of a Conservative Atheist 