When James Madison proposed 19 amendments to the US Constitution, his proposed Bill of Rights was based in large part on Virginia’s Declaration of Rights. Seven were rejected by the New York-based Congress. In 1791, the remaining 12 Amendments became law, none more important to our liberty than the 1st Amendment.
The Supreme Court has provided plenty of roadmaps for what is and what is not protected speech. “Fighting Words” was first discussed in In Beauharnais v. Illinois (1942) as:
[T]hose which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
The opinion, written by Justice Frank Murphy, may have been influenced by the nation’s war footing rather than the Constitution. In any event, seven years later, in a case called Terminiello v. Chicago (1949), Justice Douglas wrote:
[Speech is] protected against censorship or punishment, unless shown likely to reduce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest … There is no room under our Constitution for a more restrictive view.
Twenty years later, in Brandenburg v Ohio (1969), Justice Warren wrote for a unanimous court and said:
The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Clarence Brandenburg was a hateful man. A Ku Klux Klan member who publicly advocated for the overthrow of the government, he was charged with a crime, but the Supreme Court overturned the conviction.
Then, 34 years later in a cross-burning case titled Virginia v Black, Justice O’Connor wrote:
[A] State may choose to prohibit only those forms of intimidation… “that are most likely to inspire fear of bodily harm.”
O’Connor’s opinion offered that the act of cross-burning was protected, but if there was intent to intimidate (with fear of physical harm), then the act of intimidation was not protected speech.
In Snyder v. Phelps (2011), a hateful group of people belonging to the Westborough “Church” picketed at funerals, including funerals of dead soldiers like Snyder. Their signs were directed at the fallen fighters. The agitators claimed—in fact, “prayed”—that the dead soldiers would go to hell. One sign labeled Snyder a “fag” destined for damnation. The court found that although the language was awful and hateful and meant emotional harm to Snyder’s family, the agitation and signs were protected speech.
Samuel Alito wrote the opinion in a “commercial speech” case titled Matal v Tam (2017). He posited:
Speech may not be banned on the grounds that it expresses ideas that offend.
And making it harder for criminal statutes related to speech to stand, they are viewed in the light of “strict scrutiny.” What does that mean? It means that if there is any ambiguity or open to interpretation, that criminal statute will not survive. Eleven years ago, Justice Souter opined, “Strict scrutiny leaves few survivors.” Meaning – if the Supreme Court takes a case and evaluates it under the “strict scrutiny” standard, the law has little chance of surviving.
That brings us to Michigan, where the House just adopted HB 4474. The proposed law and an adopted amendment would criminalize, for instance, speech causing “severe mental anguish” to another person. That standard is absurdly subjective and vague. Although the proposed law would use the “reasonable person” standard, it still leaves a rogue prosecutor with the ability to criminalize words because someone’s feelings were hurt “really bad.”
One local attorney correctly noted that HB4474 is impossibly vague and open to subjective standards:
Under the proposed statute, “intimidate and harass” can mean whatever the victim, or the authorities, want them to mean. The focus is on how the victim feels rather than on a clearly defined criminal act. This is a ridiculously vague and subjective standard.
Under this law, could pastors, or for that matter, a student who refuses to use “preferred” pronouns, be charged with a crime if, for instance, a boy who claims he’s a girl has his feelings bruised? Yes.
The proposed law allows for prison time or a “diversion” program for the offender. In other words, the offender can avoid a jail cell if they agree to community service.
The community service would “enhance the offender’s understanding of the impact of the offense upon the victim and wider community.” If that sounds like it is out of an Orwell novel or a Mao playbook, you would be right.
In short, re-education camp for wrong speech.
If this passes the Senate and Michigan Governor Gretchen Whitmer signs it, as expected, the law, in my opinion, will not stand constitutional review. What is most bothersome is that Democrats don’t seem to care that they are criminalizing speech they don’t like.