Another day, another piece of constitutionally illiterate legislation coming out of Congress. This time it’s Congresswoman Sheila Jackson Lee, a Texas Democrat, whose new bill criminalizing “hate speech” would trample over the First Amendment and imperil free speech.
The “Leading Against White Supremacy Act” starts with a relatively uncontroversial premise, reiterating the illegal nature of white-supremacist-motivated hate crimes. If this was all it did, few would object. But it then also criminalizes those who engage in a “conspiracy” with the perpetrator of a hate crime—and defines it so broadly that it could encapture people who simply post racially insensitive things on social media.
If someone posts “hate speech that vilifies or is otherwise directed against any non-White person or group,” an eminently subjective category of speech, on social media or other public forums and then someone sees it and commits a hate crime, that original poster is now on the hook for hate crime conspiracy. Yes, even though they never met or spoke to their “co-conspirator” and had no involvement in any actual crime—and, even though the “hate speech” in question is, in fact, protected by the First Amendment.
So, it’s hardly surprising that First Amendment attorneys are panning this legislation as blatantly unconstitutional.
“The First Amendment does not permit the government to punish speech simply because it was read by a criminal actor and generally could have motivated some action,” free speech lawyer Ari Cohn told BASEDPolitics. “Under well-established law, the government can only punish speech intended to, and likely to, incite imminent lawless action. Sheila Jackson Lee’s bill satisfies none of those requirements, instead eliminating the intent and imminence requirement, and replacing ‘likely’ with a mere ‘could.’”
“And that’s to say nothing of the fact that an essential element of a criminal conspiracy is an agreement to commit a crime,” he added. “This bill would create conspiracies between people who have never spoken with one another simply by virtue of sharing (admittedly awful) opinions.”
The legislation also garnered criticism from the nonpartisan Foundation for Individual Rights and Expression (FIRE), which told BASEDPolitics that it raises “significant First Amendment and due process problems.”
So what’s motivating Jackson Lee’s legislative attack on free speech? She does have a law degree from the University of Virginia, so she should know better.
“It’s astounding that a legislator with an elite law degree could introduce something like this and not understand the obvious First Amendment problem it presents,” Ari Cohn concluded. “Of course, it could be that she just doesn’t care.”
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