In light of the horrible assassination of Charlie Kirk, government officials have been discussing prosecuting hate speech.
Unlike in Europe, the US Government lacks the power to prosecute hateful speech. The New York Times article, “What to Know About ‘Hate Speech’ and the First Amendment”, discusses the general rule. Under clearly established law, hateful speech is protected by the First Amendment except when it calls for imminent action towards a violent act.
The New York Times piece fails to mention the other big exception — speech may be prosecuted when it constitutes part of a conspiracy to commit a crime.
Typically for speech to be part of a conspiracy there must be an overt act besides the speech to advance the crime. For instance – if one says to a friend that a bank should be robbed- the speech becomes the crime of conspiracy to commit bank robbery only after the friends visit the bank to assess the security and decide on a date to rob it. The visit to the bank is an “overt act”. And the selection of a date shows it is not a mere fantasy but a formed plan.
David Nacht is a Harvard‑ and University of Michigan‑educated trial lawyer and the founder and principal of his firm, known for representing individuals at every stage of their careers—from students and employees to executives—when their reputation, rights, and livelihood are on the line. Licensed in Michigan, Ohio, and Massachusetts, he is among the rare attorneys who regularly practices both civil and criminal law in federal and state courts, using insights from each arena to gain strategic advantages for his clients. Nacht has achieved landmark victories in employment law, university and Title IX proceedings, civil rights litigation, criminal defense, and high‑stakes business disputes, including precedent‑setting appellate wins and multimillion‑dollar settlements and negotiations. Widely recognized as a leader in defending the accused and advocating for due process, he combines meticulous preparation, forward‑thinking strategy, and a client‑first philosophy focused on dignity, clarity, and results.
