Opinion | Will you abide speech you dislike? Will the nation?

Opinion editor’s note: Strib Voices publishes a mix of guest commentaries online and in print each day. To contribute, click here.

•••

“[W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe … .”

— Justice Oliver Wendell Holmes Jr. (1919)

•••

This observation of Justice Holmes from a century ago is counterintuitive, difficult to accept and essential to any understanding of the First Amendment. It is easy to reinforce your beliefs by hearing only from those who agree with you, whether by way of social media or like-minded news channels, or friends and family. The difficulty arises when you are exposed to other ideas — ideas that you find upsetting, offensive, perhaps even loathsome. Unfortunately for us all, many Americans, particularly younger Americans according to recent polls, believe that it is permissible to silence the offensive and disagreeable voice rather than add more speech. True debate between opposing viewpoints may become a lost art.

Confusion over the parameters of free speech under the First Amendment is rampant and pervasive. Unfortunately, much of the confusion exists at the top levels of our government — the executive branch and the Department of Justice (DOJ). From the issuance of a blatantly unconstitutional executive order in August directing the DOJ to prioritize the prosecution of flag-burners (if it can find any) to a nonsensical diatribe from our nation’s chief law enforcement officer claiming hate speech is not protected (it is) to a more recent executive directive to the attorney general to prosecute political opponents, all but erasing the historical independence of the DOJ to make decisions regarding criminal investigations, we are witnessing a marked escalation of government overreach.

Earlier this year, an executive order was issued that banned the government from “any conduct that would unconstitutionally abridge free speech.” Several months later, the order prioritizing the prosecution of flag burners was issued. (The U.S. Supreme Court has not once but twice made clear that the burning of the American flag is protected speech under the First Amendment — in Texas v. Johnson [1989] and again in United States v. Eichman [1990]. Justice Antonin Scalia, a conservative icon, was in the majority on both occasions, invalidating these speech restrictions.) This contradiction in engaging in conduct that “unconstitutionally abridged free speech” only months after banning such conduct apparently did not bother the executive branch. One can only assume that the administration believes that the current Supreme Court will turn its back on the First Amendment.

This belief is likely unavailing. The Supreme Court has been very accommodating thus far, but to what extent a court protects the First Amendment has always been of high historical significance. History is watching.

In the first hate speech case heard before the U.S. Supreme Court — which I argued successfully with the assistance of my late co-counsel Michael Cromett — the court, in a unanimous opinion written by Justice Scalia, invalidated a St. Paul hate speech ordinance because it discriminated on the basis of the content and viewpoint of the speech (RAV v. City of St. Paul, 1992). The message is clear. The government generally cannot restrict speech based on its content, even if that message is offensive, hateful or unpopular (or loathsome, as Holmes described it). The exceptions are strictly delineated: One cannot incite violence (as by way of a public speaker) or offer speech that constitutes a true and immediate threat. Attempts to broaden those exceptions have generally failed.

And yet, Attorney General Pam Bondi did not seem to grasp that hate speech is protected, decreeing “there’s free speech and then there’s hate speech. And there is no place [for that] — especially now, especially after what happened to Charlie — in our society.” This is not even close to being an accurate description of free speech in America. (It is also ironic, given that the late Charlie Kirk, whatever you think of him, was a strong proponent of protecting free speech, even offensive and hateful speech, perhaps for obvious reasons.) Bondi should remember, as the Wall Street Journal pointed out, that “she is a law enforcer, not a social-media anger management coach, and she’s sworn to uphold the Constitution.”

Perhaps members of those large law firms who caved and agreed to contribute many hours of pro bono service to the White House under duress could use the time to enlighten members of the DOJ, starting with the attorney general, as well the members of the executive branch, on First Amendment case law. They might also remind them of the significance of the oath they made to preserve and protect our Constitution. We would all be the better for it.