The Local Law Enforcement Hate Crimes Prevention Act (H.R. 1592), which passed in the House of Representatives in a veto-susceptible vote of 237-180, could well lead to serious infringements of our First Amendment freedom of speech protections in the United States. Such legislation has had a very chilling effect on free speech in Canada, Scandinavia and other parts of Europe.
The act would establish a new federal offense for so-called “hate crimes” and add “sexual orientation” and “gender identity” as protected classes, as well as mandate a separate federal criminal prosecution for state offenses for crimes motivated by “the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”
In essence, it would codify into federal law that certain types of people—homosexuals and “transgenders,” for example—deserve greater protection under the law than others.
It’s worth noting in this bill that discrimination on the basis of sex will become discrimination on the basis of “gender.” But that’s a whole different story.
We should not condone any act of violence against person or property—incidental or major—for any reason. There is no place for crimes of violence against homosexuals in America.
It is not new news that speech that leads to violent behavior can be penalized. In Brandenburg v. Ohio (1969), the Supreme Court said that the “constitutional guarantees of free speech and free press” prevent the state from forbidding speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
And it is not novel that one’s speech prior to the commission of a crime can be used to determine the intent behind the criminal act.
From Wisconsin v. Mitchell (1993): “The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.”
What is new with this bill is that is seems to draw a very dubious and dangerous line from the innocent free expression of religious beliefs to an act of violence against someone from a protected class.
Mike Pence, congressman from Indiana, said the legislation threatens to criminalize religious speech. Pence was rebuffed in his efforts to tighten the section of the bill that says “any expressive conduct” secured by the First Amendment would remain protected under this bill.
Pence’s amendment stated, “Nothing in this section limits the religious freedom of any person or group under the Constitution.”
Also, attempts to amend the bill to include policemen, members of the military, and pregnant women as a special class deserving protection under this act failed on party line votes.
It appears from the bill and from astonishing comments made during the April 25 Judiciary Committee hearing that a pastor who preaches against homosexuality could be charged with inciting a hate crime if one of his church members—sometime after hearing the pastor’s comments—commits a crime against a homosexual person. Continue >>
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