State moving to do exactly what Supreme Court said it couldn’t

Bob Unruh
WND News Center

The state of Michigan is moving swiftly to make it a crime to say something, actually anything – if someone else then claims they “feel threatened” by the words.

It’s exactly what the U.S. Supreme Court said just this week the state cannot do.

At issue is a legislative proposal there to make it a felony if one person says something – and another person claims to feel “threatened” by the words.

The Daily Wire reports the plan has passed the House and was pending before the state Senate. Approval there would advance the speech-limiting program to the governor.

The plan, HB 4474, specifically would make it a hate crime to cause someone else to “feel terrorized, frightened, or threatened.”

It was created specifically to limit all discussion and comments about “sexual orientation” and “gender identity or expression.”

Penalties would be up to five years behind bars and a $10,000 fine.

The Daily Wire report explained, “Many conservatives have voiced concerns that the bill infringes on Americans’ First Amendment rights. Distinguished Professor Emeritus William Wagner, a former federal judge and legal counsel in the U.S. Senate, joined the chorus of politicians and lawyers warning against the bill.”

He said, “Make no mistake about it. Those advocating for this legislation will wield these policies as a weapon capable of destroying conservative expression or viewpoints grounded in the sacred. One merely needs to look at the scores of cases brought against schools, churches, businesses, and individuals around our country. Proponents use these laws to silence and financially cripple those who dare to adhere to a different viewpoint and oppose their agenda.”

Rep. Angela Rigas, a Republican in the House, explained to the Daily Wire exactly what was being done.

“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. We saw similar concerns when they wanted to pass blocks on ‘conversion’ therapy. It seems Dems want to be in the business of telling people how to think.”

One problem for the state, however, is this week’s U.S. Supreme Court ruling in a case against Colorado brought by a man convicted there of threatening speech.

The ruling, written by left-leaning Justice Elena Kagan, found, “The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

A statement submitted to the state from the Great Lakes Justice Center pointed out that the decision the court, 7-2, “once again explicitly affirmed the long-standing principle that statutes which punish pure speech violate the First Amendment.”

“It is improper to prosecute an individual based upon the effect of his words on the hearer. Rather, a speaker can only be prosecuted if the speaker threatens ‘unlawful violence.’ Pursuant to Counterman v. Colorado, if Michigan’s hate speech bill is passed as currently written, it will violate the First Amendment. To ‘frighten’ or ‘intimidate’ or ‘harass’ a person does not amount to ‘unlawful violence’ and is, therefore, protected speech,” the statement said.

“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.”

In its issue brief, it noted the high court found that a prosecution only was appropriate if “the [speaker] 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…”

The brief explained clearly:

What words can cause another person to feel intimidated? No one knows. It will be impossible to know ahead of time because the crime is based on the subjective feelings of the alleged victim. A person can give the same speech, word for word, to two different groups of people and it will result in two different outcomes. You can be prosecuted for the first speech and not prosecuted for the second speech, even though the speeches are identical. For example, if a speech is delivered to a group of transgender supporters affirming their beliefs, no criminal offense occurs because the hearers of the message agree with the speaker and no one is offended. However, if the identical speech is delivered to a group opposed to transgender issues, a criminal offense could be charged because the hearers of the message ‘feel’ frightened, threatened, or harassed by the speaker. A hate speech law permitting such arbitrary and inconsistent outcomes violates due process, as well as the First Amendment.

Colorado, a state that has moved so far left it is to the point that lawmakers declared the unborn never have any rights there – ever – and Christians can be forced to promote the LGBT ideology in violation of their faith, had convicted Billy Counterman of sending Facebook messages to a singer.

The conviction was overturned and the case returned to the lower courts. The justices said prosecutors were required to “make a finding about whether he intended his comments to be genuine threats. If such messages are not true threats, they are deemed protected speech under the Constitution’s First Amendment.”

Colorado had wanted the justices to decide the other direction, because it wants to “curb threatening conduct before it leads to violence,” which indicates a clear intent to pursue censorship.