It may be premature to worry about the meaning of the law, but its impact on unprotected speech could be profound.
By Ronald P. Ponzoli Jr.
An amended “Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act” was enacted (section 249 of the Federal Code) in October 2009. The act expanded the scope of what crimes are punishable as “hate crimes.” Included as a punishable offense in the new law is the willful causing or attempting “to cause bodily injury to any person, because of the actual or perceived — sexual orientation [or] gender identity … of any person.”
There has been much debate regarding the impact of this act on religious organizations’ ability to express ideas about sexual and gender orientation, and whether the law will result in prosecution of individuals for religious beliefs. As examined below, the law contains safeguards against its use as a means to chill free speech and the free exercise of religion.
Additionally, judicial precedent should protect religious organizations from any effort to expand the law into a tool to prosecute constitutionally protected speech. However, because limited forms of speech are not protected by the First Amendment, unprotected speech could be subject to judicial scrutiny under the new hate crimes act.
‘Rule of Construction’
When the amended hate crimes act was enacted, the act included congressional notes titled “Rule of Construction” to help interpret the law. Several sections of the Rule of Construction provide that the hate crimes act is not intended to impact First Amendment rights.
By way of example, the Rule of Construction provides that the act shall not be “construed or applied in a manner that infringes any rights under the first amendment,” shall not be “construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs,” and shall not be “construed to prohibit any constitutionally protected speech, expressive conduct or activities … including the exercise of religion protected by the first amendment.”
As these excerpts from the Rule of Construction evidence, courts should prohibit any attempt to utilize the amended hate crimes act as a means to prosecute individuals for protected religious beliefs. However, the Rule of Construction recognizes that the “Constitution … does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.”
This comment can be interpreted as acknowledging that unprotected speech may be evidence of a violation of the act, making the point that it is important for religious organizations to understand what speech is not protected by the First Amendment.
Courts upholding the constitutionality of other hate crime laws have recognized the right to freely dislike classes of persons protected by hate crime laws. It is the act of violence that has been found to be punishable. This protection extends to “expressive conduct as well as actual speech.”
In those instances where the government “prohibits conduct precisely because of its communicative attributes,” the U.S. Supreme Court has held those regulations unconstitutional. Therefore, there is strong precedent protecting religious organizations’ right to express beliefs concerning classes of individuals protected by the new hate crimes act.
Forms of speech and expression that do not enjoy constitutional protection, and which can be regulated by the government, include: (1) abusive words which, when directed to an ordinary citizen do more than simply offend the addressee, but rather are inherently likely to provoke the addressee to respond with a violent reaction, often termed “fighting words;” (2) speech which is directed to incite or produce lawless action and which creates a clear and present danger of riot or other immediate threat to public safety, and (3) “true threats” defined as serious expressions of unlawful violence against an individual or group of individuals. Each of these forms of speech and expression must be avoided, as the Constitution will not protect the speaker from prosecution for resulting injuries.
It is too early to gauge how the new hate crimes act will be implemented. However, given the debate concerning the law’s constitutional implications, we can assume that the law will be challenged in the courts.
Therefore, religious organizations concerned about the impact of the hate crimes act should take comfort in congressional assertions that First Amendment rights are not to be diminished by the law. Additionally, the fact that the text of the new law does not punish the free expression of ideas should further ease those concerned that the law is a step towards prosecuting people for their religious beliefs.
Of course, recognition of the boundaries of protected speech and expression is important so as to avoid abusing the right to freely express ideas, and possibly exposing speech to judicial scrutiny under the new hate crimes act.
Attorney Ron Ponzoli is a shareholder with the law firm of Richman and Greer, PA, West Palm Beach, FL. His litigation practice includes constitutional law and first amendment issues. www.richmangreer.com