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“The prosecution of a speaker based upon the mental state of the listener is unconstitutional. Such an improper standard will cause a speaker to swallow words that are, in fact, not true threats. This chilling effect on protected speech is not permissible.”
–DAVID KALLMAN, ATTORNEY
A bill passed by the Michigan House of Representatives would make it a hate crime and a felony to make someone “feel terrorized, frightened, or threatened” and would also expand the definition of protected class to include homosexuals, bisexuals, and transgenders.
HB 4474 passed the Michigan House and is expected to pass the Michigan Senate and be signed into law by Gov. Gretchen Whitmer, D. However, a recent Supreme Court decision casts additional doubt on the legislation’s already shaky prospects of passing constitutional scrutiny.
The legislation would amend the state’s “ethnic intimidation” statute, which stated that a person was guilty if they “maliciously and with specific intent to intimidate or harass another person because of that person’s race, color, religion, gender, or national origin” by causing physical contact with another person; by damaging, defacing, or destroying any real or personal property of another person; or by threatening a person, through word or act, “if there is reasonable cause to believe that an act…will occur.”
The law would classify those acts or statements as a hate crime and the person would be guilty of a felony punishable by up to two years in prison and a $5,000 fine if he or she “intimidates another individual.” The bill defines intimidate as “willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable individual to feel terrorized, frightened, or threatened, and that actually causes the victim to feel terrorized, frightened, or threatened. Intimidate does not include constitutionally protected activity or conduct that serves a legitimate purpose.”
Most notably, the legislation adds sex, sexual orientation, gender identity or expression, physical or mental disability, age, and ethnicity to the characteristics one could be found guilty of discriminating against.
The legislation provides for a penalty of up to five years in prison and a $10,000 fine if certain “intimidation” conditions are met, including “misgendering” someone by not using that person’s preferred pronouns.
Michigan House Republican Rep. Angela Rigas told the Daily Wire,
“The state of Michigan is now explicitly allowing the gender delusion issue to be used as a ‘protected class.’ This opens up numerous issues when it comes to the courts and the continued weaponization of the system against conservatives…. It seems Dems want to be in the business of telling people how to think.”
According to attorney David Kallman, the law clearly infringes on the right to free speech, explaining,
“The prosecution of a speaker based upon the mental state of the listener is unconstitutional. Such an improper standard will cause a speaker to swallow words that are, in fact, not true threats. This chilling effect on protected speech is not permissible. A prosecutor must show an awareness on the part of the speaker that his statements threatened unlawful violence. Michigan’s proposed law fails to meet this standard and, therefore, violates the First Amendment.”
The legislation now faces an even bigger hurdle after a major Supreme Court ruling last week. In Counterman v. Colorado the Court ruled that a state must show that a speaker is aware their statements could be seen as threats. The case involved the conviction of Billy Counterman, who had sent hundreds of messages to country music singer Coles Whalen. Whalen blocked Counterman more than once, but Counterman continued to create new profiles and message her.
Counterman was convicted of stalking, but the Court remanded that ruling. Justice Elena Kagan wrote the opinion for the majority, saying that prosecutors must show “the defendant had some subjective understanding of the threatening nature of his statements….The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
Despite this, Michigan lawmakers say they will continue to push the bill forward.
The proposed legislation in Michigan isn’t just unconstitutional, it’s dangerous to the concept of a free people.
As George Orwell, the author of Animal Farm and 1984, once stated,
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
Sometimes people do not want to hear opinions that differ from their own, especially if it points to the truth. This bill will undoubtedly be used by people who want to silence the biblical and scientific truth that homosexual activity and transgenderism are both harmful and wrong. Yet it doesn’t just threaten those who would speak out about LGBTQ issues. It also threatens anyone who has an opinion or speaks the truth on any topic that goes against what the government deems acceptable. This includes citing biblical beliefs.
This is nothing new. Christ Himself was viewed as offensive. Peter called Jesus a “rock of offense”(1 Peter 2:8) while Paul referred to the “offense of the cross” or the “stumbling block of the cross”(Galatians 5:11), depending on the version of the Bible you read. In the Church’s first days the Jewish religious leaders came up to the apostles “being greatly disturbed because they were teaching the people and proclaiming in Jesus the resurrection from the dead. And they laid hands on them and put them in jail until the next day, for it was already evening.” (Acts 4:2-3)
Jesus told us that the world would hate us because of Him (Matthew 10:22). The world doesn’t want to hear the truth, so it labels the Gospel and the teachings of Scripture as hate speech. As such, Christians must lead the push to protect the right to freedom of speech and to continue to tell the truth no matter the cost.
Ready to dive deeper into the intersection of faith and policy? Head over to our Theology of Politics series page where we’ve published several long-form pieces that will help Christians navigate where their faith should direct them on political issues.
