The anti-free speech movement in the United States continues to grow with alarming speed among writers, journalists, academics, and most importantly Democratic members of Congress. Members now openly call for censorship and the manipulation of what citizens see and read. Yet, even in this environment, a recent proposed by Rep. Sheila Jackson Lee (D., Tx.) is a menacing standout. Jackson has introduced a bill that is an almost impenetrable word salad of convoluted provisions. However, what is clear (perhaps the only clear thing) is that the “Leading Against White Supremacy Act of 2023” would gut the First Amendment and create effective thought crimes. The bill is not going to pass. However, the anti-free speech elements of the bill are deeply disturbing because they reflect successful efforts at speech criminalization in other countries. It also reflects elements in a bill that I testified against last year in the Senate.
The criminal penalty is based on this general provision:
(a) In General.—A person engages in a white supremacy inspired hate crime when white supremacy ideology has motivated the planning, development, preparation, or perpetration of actions that constituted a crime or were undertaken in furtherance of activity that, if effectuated, would have constituted a crime.
Thus, anyone who is accused of white supremacy ideology (as opposed to other race-based ideologies) can be charged if such views have “motivated” others to plan or perpetrate criminal acts. It is a criminal hate speech law that would violate core principles of the First Amendment. It makes clear that the accused does not actually have to support or conspire in a crime. Even being accused of espousing “replacement theory” is enough to generate a federal charge.
The “Great Replacement Theory” was the focus of a Senate Judiciary Committee hearing last year, in which Democrats alleged that Republicans — and Fox News in particular — are “radicalizing” domestic terrorists with rhetoric opposing illegal immigration. (I testified at the hearing). Members advocated legislation to force the FBI to focus on such theories as dangerous white supremacy threats.
The Jackson bill would allow postings on social media to be the basis for criminal charges:
(B) at least one of whom published material advancing white supremacy, white supremacist ideology, antagonism based on “replacement theory”, or hate speech that vilifies or is otherwise directed against any non-White person or group, and such published material—
(i) was published on a social media platform or by other means of publication with the likelihood that it would be viewed by persons who are predisposed to engaging in any action in furtherance of a white supremacy inspired hate crime, or who are susceptible to being encouraged to engage in actions in furtherance of a white supremacy inspired hate crime;
(ii) could, as determined by a reasonable person, motivate actions by a person predisposed to engaging in a white supremacy inspired hate crime or by a person who is susceptible to being encouraged to engage in actions relating to a white supremacy inspired hate crime; and
(iii) was read, heard, or viewed by a person who engaged in the planning, development, preparation, or perpetration of a white supremacy inspired hate crime.
The bizarrely written reasonable person standard is so opaque and cryptic that is enthralling. How would a reasonable person discern a predisposition to engage in white supremacy? It appears to follow Supreme Court Justice Potter Stewart’s test for pornography in his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964): “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
Once again, this is so flagrantly unconstitutional on so many levels from free speech to vagueness that it is actually impressive. It is easy, however, to dismiss except that such criminal penalties exist in other countries like England where even a silent prayer is a criminal offense when done near an abortion clinic.
Last year, Nicholas Brock, 52, was convicted of a thought crime in Maidenhead, Berkshire. The neo-Nazi was given a four-year sentence for what the court called his “toxic ideology” based on the contents of the home he shared with his mother in Maidenhead, Berkshire.
While most of us find Brock’s views repellent and hateful, they were confined to his head and his room. Yet, Judge Peter Lodder QC dismissed free speech or free thought concerns with a truly Orwellian statement: “I do not sentence you for your political views, but the extremity of those views informs the assessment of dangerousness.”
Lodder lambasted Brock for holding Nazi and other hateful values:
“[i]t is clear that you are a right-wing extremist, your enthusiasm for this repulsive and toxic ideology is demonstrated by the graphic and racist iconography which you have studied and appeared to share with others…”
Even though Lodder agreed that the defendant was older, had limited mobility, and “there was no evidence of disseminating to others,” he still sent him to prison for holding extremist views.
After the sentencing Detective Chief Superintendent Kath Barnes, Head of Counter Terrorism Policing South East (CTPSE), warned others that he was going to prison because he “showed a clear right-wing ideology with the evidence seized from his possessions during the investigation….We are committed to tackling all forms of toxic ideology which has the potential to threaten public safety and security.”
“Toxic ideology” also appears to be the target in Ireland with the recently proposed Criminal Justice (Incitement to Violence or Hatred and Hate Offences) law. It would criminalize the possession of material deemed hateful. The law is a free speech nightmare. The law makes it a crime of possession of harmful material” as well as “condoning, denying or grossly trivialising genocide, war crimes, crimes against humanity and crimes against peace.” The law expressly states the intent to combat “forms and expressions of racism and xenophobia by means of criminal law.”
What is so striking about the law is that it allows for the prosecution of citizens for “preparing or possessing material likely to incite violence or hatred against persons on account of their protected characteristics.” That could sweep deeply into not just political but literary expression.
Once again, the Jackson bill will thankfully die in the House. However, it reflects the same erosion of free speech values that we have seen in other countries from Canada to Germany to the United Kingdom.
To the extent that a conviction entails a more severe penalty because of statements or writings of the convicted evincing “hatred” of the victim than would otherwise be assessed in the absence of such writings or statements, we have had “thought” crimes for many years. There were civil libertarians at the time of the initiation of “hate” crimes who spoke against the creation of this new class of crimes, but their voices did not prevail. Rep. Lee’s bill is simply an natural extension these previous thought crimes to which the society has become largely inured. When the Constitution is ignored in pursuit of political expediency, the legal edifice it defines starts to crumble to the detriment of the liberty of all citizens.
Hate crime laws do not create a new class of crimes. They don’t create crimes at all. And such laws do NOT “entail a more severe penalty because of statements or writings of the convicted evincing “hatred” of the victim than would otherwise be assessed in the absence of such writings or statements”. They entail a more severe penalty for a crime if THAT CRIME WAS MOTIVATED by such hatred.
And that is not an innovation at all. Motive has ALWAYS been a factor in sentencing. Ever since we have had judicial discretion in sentencing, crimes committed for reprehensible motives have been punished more harshly than the same crimes committed for other motives. Even in Thomas Jefferson’s Viriginia laws, murder for hire was treated more harshly than other murders.
This proposal is completely different. It would create a crime where none existed before, and thus make a criminal out of someone who committed no crime. And it would do so for expressing a disfavored viewpoint.
Jonathan: You’re right. There is no chance the bill by Rep. Sheila Jackson Lee would ever be considered by the GOP in the House whose agenda is now pretty much controlled by the white racist right-wing MAGA fringe of the party. I think DJL proposed her bill to send a political message over the sharp increase in racial crimes. And her timing was a reminder of the murder of MLK and how it still haunts our efforts at racial justice. So why the big uproar in the right-wing press and social media over SJL’s proposed amendment? It was the lead story in the NY Post and on Fox. When Rupert Murdock wants a issue highlighted you follow with your own column. It’s in your job description. I get that part.
But the right-wing on social media was equally outraged. On one right-wing website there was this comment by a lawyer who said that SJL’s bill “would make it a federal crime for White people only, to criticize mass immigration or to say anything that she claims would vilify a ‘non-white person or group'”. Never mind that the bill doesn’t address immigration and doesn’t make only “White people” liable. Any “person” could be charged under the bill. That doesn’t matter to racists who have found a home for their views in social media. There was also this comment on the same website: “F–k her, and all the Democrats that stand behind her… nothing but a f—ing c–t!”. We find comments similar to the first one right here on your blog. “WR” says SJL “is a disgusting person and in my opinion as a racist as (sic). She is the epitome of a racist, hates and abuses all the other races and even blacks that she thinks are not socially her equal…and yes, she does support reducing the white majority in this country any way possible”. (1/17/23 @ 1:45 pm)
I have two observations about the comments quoted above. None of the these comments actually address SJL’s bill. It is just virulent racism that supports the “replacement” theory. The other thing that is interesting is that self-hating racists often attribute their illness to the very people they hate. “If I’m a racist you are one too”. It makes them feel justified in their own racism. I have never heard SJL say anything indicating “she does support reducing the white majority”. But that doesn’t stop racists from spewing out all sorts of misinformation and disinformation.
Which brings us back to SJL’s bill. She says part of her motivation in proposing the amendment was the events in Buffalo when Payton Gendron shot dead 10 Black shoppers at a supermarket. Had Gendron simply marched up and down in front of the supermarket with a sign that read “Blacks will not replace us!” that would be protected by the 1st Amendment. But Gendron left a testament that indicated he was motivated to act by the “replacement theory” and other racist theories he saw on right-wing websites. If it could be shown there was a “conspiracy” by Gendron and others to commit those horrendous crimes then all of them would be equally liable under the amendment. A tough case to prove in any case.
There are echoes of SJL’s bill in the events of Jan. 6. Many of those who participated in the insurrection say they were motivated to act by what Trump and others were saying about the 2020 election–that it had been “stolen”. In it’s final act the J.6 Committee referred Trump, John Eastman and others to the DOJ for possible prosecution. They were the intellectual authors of the insurrection. The Q is why should just the foot soldiers be held accountable? Shouldn’t those who engaged in a conspiracy and planned the insurrection be equally held accountable? How is this different that what SJL is proposing in cases of racist violence?
There is no “sharp increase in racial crimes”, other than those committed by black people.
There is more chance her Bill will get to the floor today than under Pelosi.
The Republican reversion to past rules makes it much easier for members to introduce bills and amendments.
As to the content – didn;t Rep Lee swear an oath to follow the constitution ?
Why are left wing nuts constantly proposing this type of nonsense ?
If she wants this she must start with Amending the constitution.
Regardless, I would expect little more from you than unwavering support for stupid.
I WANT woke left wing nuts like you to be free to say whatever stupid things you wish.
That is the barometer that tells us all how nuts the country is.
As Justice Brandeis said over a century ago – the Remedy to speech you do not like is more speech.
I want free speech for woke idiots and free speech for white nationalists.
As to your argument that this is some Fox/Mudock/Right wing nut thing.
Are you saying Rep. Lee is getting a kick back from Murdock ?
If you do not want your stupidity covered by those whose politics you dislike,
that is easy – do not propose stupid bills.
I have no problem with Turley, Fox, CNN or anyone being critical of a stupid bill offered by ANY representative.
Republicans are occasionally stupid too – but it takes a democrat to be completely bonkers.
I do not care what SJL or anyone else’s motivation for STUPID is.
Hitler was a vegan and liked dogs – SO WHAT ?
This “It is OK for Biden or some democrat to do something stupid or evil – because they had good intentions” is nonsense.
If you do evil – you are evil, regardless of your “Motives”
I have absolutely zero interest in what motivates SJL or J6 participants, or serial killers or mass murderers or ……
Absent actual incitement to violence none of us are responsible for other others choose to do because of what we said or they think we said.
That idiots like you and Rep SJL think otherwise is YOUR problem.
I am not looking to Jail YOUR because YOU Ranted about the collusion delusion for years.
I am not looking to jail YOU for the BLM riots because YOU have said many stupid things in the past.
But YOUR J6 nonsense is worse still because YOU are STILL trying to criminalize acts that are not crimes.
People are allowed to protest government – that is the MOST protected of citizens RIGHTS.
The HARMS from J6 are inconsequential compared to Any one night at Portland in 2020.
What is most disturbing about J6 is that YOU and the Left keep trying to make it a basis to prevent any right wing protests.
YOU are absolutely terrified that the J6 protestors might have actually made a big enough Fuss that Congress would have stalled certifying the election until they looked into allegations of election fraud.
YOU are absolutely terrified that others on the right might protest in the future for most any reason.
Because the left is quite well aware that when the right starts protesting it is GAME OVER for the left.
Post J6 it has become absolutely Critical to double down on your supression of speech everywhere you can.
It has been absolutely critical to send the message that – if you are on the left you can burn and loot and nothing will happen.
But if you are on the Right – do not DARE stand up publicly for what you beleive. That you will be jailed and sentenced to the max for crimes you did not commit.
You use J6 as an example – J6 was NOTHING compared to what the left does all the time.
Where you scared that some guy in a viking hat wearing a bear skin was going to destroy democracy ?
The only people killed on J6 were protestors – Murdered by the Capital police.
No one got into the Capitol without the Capitol Police opening the doors for them.
No one Tresspassed. The Capitol is a public building and the Doors were open.
YOU and Rep. Lee are looking at the wrong end of the horse.
We do not need to shutdown protestors – right or left.
We need to assure they can speak, they can petition government,
and they can do so without being murdered by the Capitol police.
The constitution REQUIRES that Congress can not conduct its dirty deeds in secret, that it MUST be subject to the scrutiny of the public, and that even small fringe minorities can make their voices heard.
Unfortunately the Speech or Debate clause means that it is impossible to take any legal action against her for proposing such a blatantly unconstitutional bill. Even if it were to pass, and the president were to sign it, all the courts could do would be to strike it down; they could not take any action against those who proposed it, voted for it, and enacted it. They could take action against policemen who tried to enforce it, since the rights it violates are very very “clearly established”, as required to set aside qualified immunity.
Also, besides the Speech or Debate clause, another reason congressmen can’t be sued for violating their oaths of office is that nobody would have standing to do so.
In the United States of America, the government may not suppress speech by any person, no matter how repugnant, as long as the person does not call for violence to be committed. Not only do Americans have the right to be racist, they have the right to publicly express their racism. As horrible as that sounds, government censorship is infinitely worse.
Incorrect. In the United States of America the government may not suppress speech by any person, no matter how repugnant, even if the person does call for violence to be committed. The supreme court has been very clear on this. Advocacy of anything, even of extreme violence, and even of treason, is core protected speech.
Only incitement can be banned, and that is very narrowly defined: the speech must be both (1) subjectively intended and (2) objectively likely to cause its audience to (3) immediately commit a crime. In other words incitement is speech that deliberately whips up someone’s emotions so that they temporarily lose their free will and act as the speaker’s robots. Had Trump yelled at his audience on Jan-6-2021 “Go break into the Capitol and kill Mike Pence”, and a mob had immediately got up and attempted to do so, he would be guilty of incitement, if that was what he intended. Even if it didn’t happen, but it was objectively likely to happen, and he intended it, it would be incitement. But anything short of that is not. Calmly lecturing an audience on why it is right and proper to wipe out the Jews, or to re-enslave the black people, or to rob banks and rape old ladies, is not incitement and is protected speech.
Thanks. Next time I call for violence in a public forum, I will make sure I can prove that I didn’t mean if or, if I did mean it, I will make sure I can prove I was speaking calmly, in general terms, about violence about at some unspecified point in the distant future.
You don’t have to prove anything. To charge you the government must make a prima facie case, and to convict you it must prove beyond reasonable doubt, that all three elements have been satisfied.
“House Bill Would Criminalize Social Media Postings Supporting “White Supremacy” or ‘Replacement Theory'”
“…a recent [proposal] by Rep. Sheila Jackson Lee (D., Tx.) is a menacing standout.”
– Professor Turley
______________
Not only should the “menacing standout,” Sheila Jackson Lee be jailed for subversion and treason, she shouldn’t even be a citizen in America and must have been deported long ago.
On January 1, 1863, the Naturalization Act of 1802, aka extant immigration law, required citizens to be “…free white person(s)…,” in turn, requiring compassionate repatriation.
The Supreme Court recently acted retroactively by 50 years to correct the constitutional status of abortion.
The Supreme Court must now act retroactively by 150 years to correct the illicit and unconstitutional immigration of 3 million freed slaves, and order the immediate and compassionate repatriation of their descendants.
America has a whole lot of “criminalizing” and “correcting” to do, ain’t that right, Sista Sheila?
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Oh, and didn’t Martin King say that men should be judged, not by the color of their skin, but by the content of their character?
King was “with” 2 or 3 women, by all accounts, the night of his assassination.
He was a confirmed adulterer.
He was liar and a fraud to his congregation in a Christian church.
He was a liar, fraud and philanderer to his family.
He was liar and fraud to his mistresses and lovers.
He was a plagiarist of his college thesis.
THE CONTENT OF HIS CHARACTER IN DEED.
“A committee of scholars appointed by Boston University concluded today that the Rev. Martin Luther King Jr. plagiarized passages in his dissertation for a doctoral degree at the university 36 years ago.
“There is no question,” the committee said in a report to the university’s provost, “but that Dr. King plagiarized in the dissertation by appropriating material from sources not explicitly credited in notes, or mistakenly credited, or credited generally and at some distance in the text from a close paraphrase or verbatim quotation.”
…
But the committee did recommend that a letter stating its finding be placed with the official copy of Dr. King’s dissertation in the university’s library.
The four-member committee was appointed by the university a year ago to determine whether plagiarism charges against Dr. King that had recently surfaced were in fact true. Today the university’s provost, Jon Westling, accepted the committee’s recommendations and said its members had “conducted the investigation with scholarly thoroughness, scrupulous attention to detail and a determination not to be influenced by non-scholarly consideration.”
The dissertation at issue is “A Comparison of the Conceptions of God in the Thinking of Paul Tillich and Henry Nelson Wieman.” Dr. King wrote it in 1955 as part of his requirements for a doctor of philosophy degree, which he subsequently received from the university’s Division of Religious and Theological Studies.”
– New York Times, October 11, 1991
A couple of years ago, a young Black woman told me that Japanese people are White. This issue also emerged during the George Zimmerman trial when the Media described Zimmerman as a White Hispanic, misattributing his race. Actually, he is a Mestizo – which is mixed race including Amer Indian and he has some Black ancestry, too. There are also some aspects of this which evoke the Blasphemy Laws of other countries such as Pakistan.