What to Know About ‘Hate Speech’ and the First Amendment

In the wake of the killing of the conservative activist Charlie Kirk, President Trump and members of his administration have been publicly musing about punishing people who have said insensitive, provocative or hateful things about Mr. Kirk’s death. One theme of their statements was that at least some of such critical commentary amounted to “hate speech.”

Attorney General Pam Bondi, for instance, said on a podcast on Monday that “we will absolutely target you, go after you, if you are targeting anyone with hate speech.”

After a backlash, she appeared to revise her analysis, saying on social media on Tuesday that “hate speech that crosses the line into threats of violence is NOT protected by the First Amendment. It’s a crime.”

Todd Blanche, the deputy attorney general, suggested in an interview on CNN on Tuesday that people protesting while Mr. Trump had dinner at a Washington restaurant might have committed a crime.

Mr. Trump for his part said on Tuesday that in settling a libel lawsuit, “ABC paid me $16 million for a form of hate speech.”

Here is what the First Amendment says about efforts by the government to suppress hate speech and the like.

What is hate speech?

The usual definition, drawing on statements from the United Nations and the Council of Europe, includes racial, ethnic and religious epithets; calls for racial or religious intolerance; and false statements about racial or religious groups, with Holocaust denial being the most common example.

Does the First Amendment allow the government to punish hate speech?

The Supreme Court has very clearly said “no,” and not only in the context of criminal prosecutions. In a 2017 opinion in a decision striking down a federal law banning disparaging trademarks, Justice Samuel A. Alito Jr. set out the settled view, saying the government had no business “preventing speech expressing ideas that offend.”

“That idea,” Justice Alito wrote, “strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability or any other similar ground is hateful.”

Quoting a classic 1929 dissent from Justice Oliver Wendell Holmes Jr., Justice Alito added that “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

Can courts prohibit offensive speech that causes listeners distress?

Here again, the Supreme Court has said “no.” Courts would not stop a planned march by the American Nazi Party in Skokie, Ill., in 1977, though it would have been deeply distressing to the many Holocaust survivors who lived there.

In 2011, by an 8-to-1 vote, the Supreme Court ruled that the First Amendment protected the Westboro Baptist Church, which protested at military funerals with signs bearing messages like “America is Doomed” and “Thank God for Dead Soldiers.”

“Speech is powerful,” Chief Justice John G. Roberts Jr. wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.”

But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, required protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”

Is the American approach to hate speech distinctive?

Yes.

“In much of the developed world, one uses racial epithets at one’s legal peril; one displays Nazi regalia and the other trappings of ethnic hatred at significant legal risk; and one urges discrimination against religious minorities under threat of fine or imprisonment,” Frederick Schauer, then a professor at the John F. Kennedy School of Government at Harvard, wrote in a 2005 essay called “The Exceptional First Amendment.”

“But in the United States,” wrote Professor Schauer, who died last year, “all such speech remains constitutionally protected.”

When did hate speech emerge as a legal category in the rest of the world?

Many legal scholars say the concept took shape in the mid-1960s, pointing to the 1965 Race Relations Act in Britain, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and the 1966 International Covenant on Civil and Political Rights.

What about inciting violence?

The First Amendment does not protect incitement, but the Supreme Court has defined that term quite narrowly, requiring a likelihood of imminent violence. Mere advocacy of violence, terrorism or the overthrow of the government is not enough; the words must be meant to and be likely to produce violence or lawlessness right away.

In 1969, in Brandenburg v. Ohio, the Supreme Court unanimously overturned the conviction of a leader of a Ku Klux Klan group under an Ohio statute that banned the advocacy of terrorism. The Klan leader, Clarence Brandenburg, had urged his followers at a rally to “send the Jews back to Israel” and to “bury” Black people, using a racial slur. He also said they should consider “revengeance” against politicians and judges who were unsympathetic to white people.

Only Klan members and journalists were present. Because Mr. Brandenburg’s words fell short of calling for immediate violence in a setting where such violence was likely, the Supreme Court ruled that he could not be prosecuted for incitement.

Mr. Trump has been the beneficiary of that ruling. When he was running for president in 2016, he pointed to some protesters at one of his rallies and told the crowd to “get ’em out of here.” The protesters, who said they were then viciously assaulted, sued him for inciting a riot.

Mr. Trump won the suit. A federal appeals court, referring to Brandenburg, ruled that his exhortation was protected by the First Amendment.

“In the ears of some supporters, Trump’s words may have had a tendency to elicit a physical response, in the event a disruptive protester refused to leave,” Judge David W. McKeague wrote for the majority, “but they did not specifically advocate such a response.”

What about threats against particular people?

The Supreme Court has recognized an exception to the First Amendment for “true threats” of violence. But here, too, it has defined the category narrowly.

In 2023, the Supreme Court placed limits on state laws that made it a crime to issue threats on the internet targeting people, saying that prosecutors must prove that the speakers had acted at least recklessly.

“The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” Justice Elena Kagan wrote for five justices in the 7-to-2 decision.

Justice Kagan acknowledged that “true threats” were not protected by the First Amendment. But she said the risk of chilling protected speech warranted imposing an added burden on prosecutors.

“The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs — all those may lead him to swallow words that are in fact not true threats,” she wrote.

Is Trump right that a libel settlement is proof of hate speech?

People settle lawsuits for lots of reasons. But a public official suing for libel must prove not only that the challenged statement was false and defamatory, but also that its publisher had acted with “actual malice,” a legal term of art that has nothing to do with the ordinary meaning of malice in the sense of hatred, spite or ill will. Rather, it requires plaintiffs to prove that the defendant knew the disputed statement was false, or had entertained serious doubts about its truth.

If hate speech is protected by the First Amendment, why are people getting fired for things they have said about Mr. Kirk?

Private institutions, including employers, are not subject to the First Amendment, which restricts only government activities.