Wow: When Barry Met Kathy
The First Amendment to the Constitution of the United States reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
And yet the Democratic* majorities in the House and Senate are set to pass the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which will, if not stopped or struck down, limit our natural right to free speech by violating the First Amendment.
*(Insert irony as needed)
How will this happen? Byron York at the Washington Examiner has the story:
The crime bill — which would broaden the protected classes for hate crimes to include sexual orientation and “gender identity,” which the bill defines as a victim’s “actual or perceived gender-related characteristics” — passed the House earlier this year as a stand-alone measure. But it’s never had the votes to succeed by itself in the Senate. So over the summer Democrats, with the power of their 60-vote majority, attached it to the defense bill.
Republicans argued that the two measures had nothing to do with each other. Beyond that, GOP lawmakers feared the new bill could infringe on First Amendment rights in the name of preventing broadly defined hate crimes. The bill’s critics, including many civil libertarians, argued that the hate crimes provision could chill freedom of speech by empowering federal authorities to accuse people of inciting hate crimes, even if the speech in question was not specifically related to a crime.
Republican Sen. Sam Brownback offered an amendment saying the bill could not be “construed or applied in a manner that infringes on any rights under the First Amendment” and could not place any burden on the exercise of First Amendment rights “if such exercise of religion, speech, expression, or association was not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another.”
The Senate passed Brownback’s amendment. After that, several Republicans, their fears allayed, voted for the whole defense/hate crimes package, which passed the Senate last July.
Meanwhile, on the House side, representatives passed their own version of the defense authorization bill, which did not contain the hate crimes measure.
Then it was time for the House and Senate bills to go to a conference committee, where the differences between them would be ironed out. That’s where the real action began.
First, the committee — controlled by majority Democrats, of course — inserted the hate crimes measure into the House bill, where it had not been before. Then lawmakers made some crucial changes to Brownback’s amendment. Where Brownback had insisted, and the full Senate had agreed, that the bill could not burden the exercise of First Amendment rights, the conference changed the wording to read that the bill could not burden the exercise of First Amendment rights “unless the government demonstrates … a compelling governmental interest” to do otherwise.
That means your First Amendment rights are protected — unless they’re not.
Let’s set aside the sneaky tactic of attaching unrelated bills that can’t pass on their own merits to other bills in order to bull-rush the opposition; that’s a tactic used by both sides, probably since the early days of the Republic. It needs to stop, but that’s not the point.
The key issue here is the willingness of the Democrats to play fast and loose with the Constitution and individuals’ rights in order to buy the votes and contributions of one or more client groups by granting the group a special protected status. In this case, the right of free speech is subordinated to some made-up right “not to be offended.”
Let’s be clear: what happened to Shepard and Byrd were grotesque crimes, and the perpetrators deserved the death penalty. But the law already adequately covered what happened in these cases, because they covered the physical acts: kidnapping, torture, and murder. The law the Democrats seek to pass, however, goes far beyond criminalizing a physical act to criminalizing speech itself. While it’s true that there are accepted limits to free speech (the famous “yelling fire” example, or the fighting words precedent of Chaplinsky v. New Hampshire), unless the speaker is threatening violence or directly inciting violence, free speech is free speech and cannot be restrained by Congress.
Just as dangerous to civil liberty is the bolded clause above, allowing the government to determine when speech crosses the line and needs to be limited to protect a “compelling government interest.” Even if such limitations were constitutional (and they’re not), just how will the Justice Department determine this? What standards will they use? How will they guarantee that whatever standards they use are applied equally? If I am to be prosecuted for saying Islam threatens democracy, will an imam be prosecuted for saying that Jews are the enemies of God? This provision appears to leave it to the whim of the Attorney General.
Free speech means nothing if it does not protect speech that we may find objectionable or offensive. It is the bedrock and foundation of Anglo-American liberty, and this measure by the Democrats, while proposed for nominally noble purposes, is a huge step toward shattering that foundation. It shackles the natural rights of individuals, all for the sake of pandering to yet another set of groups that are willing to sacrifice their own individual rights. Again I ask: Why do Democrats hate the Bill of Rights?
The Founders would be spinning in their graves.
(via Power Line)
(cross-posted at Public Secrets)
UPDATE: If you want to read a very good book on the Bill of Rights, I recommend Levy’s Origins of the Bill of Rights.
UPDATE II: At Reason.com, Jacob Sullum points out that the proposed law could land the defendant with longer sentences for his thoughts and speech than he’d get under state laws for the physical crime: The Bigot Bonus.