(The Center Square) – The Michigan Senate is poised to pass bills that would make intimidating speech a felony punishable by up to five years in prison and a $10,000 fine.
Critics say the bills would criminalize speech protected by the First Amendment.
House Bills 4474, 4475, 4476, and 4477 aim to prohibit hate crimes, institutional desecration and crime of ethnic intimidation. The House already passed the bills.
Under current law, a person is guilty of ethnic intimidation if they maliciously strike someone, damage, or deface real or personal property, or threaten, by word or act, to do either of the above, if there is reasonable cause to believe that they will do so because of someone’s race, color, religion, gender, or national origin.
The act would allow a person who suffers injury or property damage as a result of ethnic intimidation to sue the offender for an injunction for actual damages, even if the alleged crime isn’t prosecuted.
A prevailing plaintiff can recover damages in the amount of three times the actual damages or $2,000, whichever is greater, as well as reasonable attorney fees and costs.
The bills would expand the definition of a hate crime if someone maliciously and intentionally does any of the following to someone based on an actual or perceived characteristic of that individual, regardless of the existence of any other motivating factors:
Use force or violence on the other individual.Cause bodily injury to the other individual.Intimidate the other individual.Damage, destroy, or deface any real, personal, digital, or online property of the other individual without that individual’s consent.Threaten to do any of the above.
The bill claims that the bill doesn’t criminalize constitutionally protected intimidation, but it’s unclear what the difference is between protected speech and unprotected speech as defined by the bills.
Attorney David Kallman said the bills are unconstitutional, and if passed, Michiganders could be charged with a felony, face up to five years in prison, and a $10,000 fine for speaking for or against transgender issues, religious beliefs, or require or refuse to use someone’s preferred pronouns.
Kallman noted the bills would violate the First Amendment because to “‘frighten or intimidate or harass’ someone’ does not amount to ‘unlawful violence’ and is, therefore, protected speech.”
He continued: “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.”
