“Congress shall make no law…prohibiting the free exercise thereof; or abridging the freedom of speech.”
That’s the U.S. Constitution explicitly stating a citizen’s right to free speech in its First Amendment. Unfortunately, the state of Montana is apparently unaware of this and is seeking to prosecute a Flathead County man for the crime of hate speech.
Last week, the popular Washington Post legal blogger and UCLA law professor Eugene Volokh reported about the disturbing Montana case and explained the state’s rationale for prosecuting 28-year-old David Lenio, a man charged with defaming Jewish people.
According to Volokh, Montana’s defamation laws are broader than most states’ statutes when it comes to the issue of malicious speech. Unlike the typical statute that limits defamation to false assertions about a particular person, Montana’s law includes “false opinions” and extends the definition to disparaged ““group[s], class[es], or association[s].”
This broad definition is being exploited by the prosecutor Stacy Boman to charge Lenio for anti-Jewish statements made on social media. The indicted man tweeted that the Holocaust didn’t happen, Jewish people hate free speech and a host of other anti-Semitic comments. The first count he’s getting hit with is for making threats, which he basically did since many — but not all — of his statements included calls for violence and promises to kill fellow citizens.
But the problem comes with the second count that claims Lenio defamed Jews through his dumb tweets. The law professor argues this charge could set a “dangerous precedent” for both Montana and the nation as a whole.
[T]he Montana prosecutor has deliberately chosen to go far beyond the threats argument. Instead, the prosecutor has interpreted the Montana criminal defamation statute in a way that I don’t think any criminal defamation statute has been interpreted in decades — a way that risks criminalizing derogatory opinions as well as controversial factual statements about religious groups, racial or ethnic groups, either sex, sexual orientations, professions, political movements, and more.
If the criminal defamation count is upheld, “hate speech” prosecutions (again, even for statements that lack any threat of violence) would become eminently viable. A dangerous potential precedent, and one that I hope the Montana courts will avoid setting.
That’s a terrifying thought. Even though most would agree that Mr. Lenio’s statements that lacked threats were hateful and stupid, that doesn’t mean he doesn’t have a right to say them. This is America, and you do have the right to voice your own opinion — no matter how many people disagree with it nor how idiotic it sounds.
However, the Montana prosecution just might be the spearhead of a movement that wishes to curb free speech here in the states.
After the shooting at a “Draw Mohammad” contest in Garland, Texas, several media personalities gave lukewarm condemnations of the violence, yet became absolutely enraged by the event itself. The New York Times editorial board blasted the event organizers as “bigoted” and claimed the activity amounted to hate speech. While The Times admitted the contest was still protected speech, a Daily Kos article written by Tanya Cohen took the next step and declared that the shooting justified hate speech laws.
To this “human rights activist,” the lack of hate crime legislation makes the U.S. look uncivilized and proves that our government is “deeply racist.” Cohen also said that allowing hate speech will lead to genocide, so America better round up alleged bigots to prevent the inevitable bloodshed. Among those that this hardcore leftist would like to see immediately arrested for hate speech are Phil Robertson, Sean Hannity, Rush Limbaugh, Bill O’Reilly, Glenn Beck, Bill Maher and Sarah Palin.
While this article is certainly the work of a fringe figure, it does show the slippery slope that would occur if we prosecuted loons like David Lenio.
If we did decide to criminalize hate speech, who gets to determine what that constitutes? The government, that’s who, and it would open a Pandora’s Box of possibilities for which speech could possibly be penalized.
Let’s say a mayor of a large city doesn’t like pastors in her town declaring gay marriage a sin. So she decides that that amounts to hate speech under a new federal law and orders all religious leaders in her jurisdiction to turn over their sermons to ensure that they contain no such statements. If the sermons do contain the offending statement, then the mayor is well within her bounds to get the pastors hauled into court and charged with a crime.
If this sounds like something that could never happen in America, you’d be mistaken. A similar scenario played out last year in Houston when the city’s mayor Annise Parker subpoenaed pastors for their sermons to make sure they “complied” with the metropolis’s new “non-discrimination” ordinance. This, thankfully, backfired for Parker and she had to retract the demand after her office realized the request didn’t look good in light of the Constitution.
But if there was a law in play that criminalized discriminatory opinions, we wouldn’t have the same happy outcome.
The point of ensuring free speech is not to protect the popular opinions of those in power — it is to protect unpopular opinions from those in power. If we banned “hate speech,” we’d allow the individuals with the most influence in our society to determine what that entails and what speech is allowed.
When it comes to controversies like April’s religious freedom fight in Indiana, these laws (if theoretically enacted) would let Tim Cook — the CEO of one of the most prominent corporations in the world — express his opinion on the issue, but we could charge the small business owners who wouldn’t cater a same-sex wedding with a crime if we penalized offensive opinions.
Ultimately, what gets seen as hate would be an arbitrary decision based on elite opinion and which group shows the most outrage. If our country adopted hate speech laws, the First Amendment would be stripped of meaning, public discourse would resemble a university safe space and thought crime would be a reality.
Throughout American history, we have entrusted the marketplace of ideas to sort out opinions and viewpoints rather than the government. Hate speech laws would reverse that system and make the government decide what thoughts are appropriate for the public square. That’s why criminalizing speech has no place in our country.