Biden Official Who Seeks to Expand Hate Speech Laws is on Unstable Ground

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President-elect Joe Biden’s transition team leader for US-owned media outlets wants to redefine freedom of speech and make “hate speech” a crime.

Richard Stengel is the Biden transition “Team Lead” for the US Agency for Global Media, the US government media empire that includes Voice of America, the Middle East Broadcasting Networks, and Radio Free Europe/Radio Liberty.

Stengel, an Obama administration alumnus, wrote last year in a Washington Post op-ed that US freedom of speech was too unfettered and that changes must be considered.

He wrote: “All speech is not equal. And where truth cannot drive out lies, we must add new guardrails. I’m all for protecting ‘thought that we hate,’ but not speech that incites hate.” Source: nypost.com

It is unclear exactly what Stengel means when he says he wants to make hate speech a crime. Would he include Biden-backed utterances claiming that Trump is a racist, xenophobe, etc.? What is he driving at? Is he after Trump supporters who criticize Biden’s obvious inability to govern on principles he doesn’t grasp? We think Stengel doesn’t know he wants—typical of most people associated with Biden.

LEGAL STANDARDS

In the United States, hate speech is protected by the First Amendment. Courts extend this protection because the First Amendment requires the government to strictly protect robust debate on matters of public concern even when such debate devolves into distasteful, offensive, or hateful speech that causes others to feel grief, anger, or fear. (The Supreme Court’s decision in Snyder v. Phelps provides an example of this legal reasoning.) Under current First Amendment jurisprudence, hate speech can only be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group.

There is no legal definition of “hate speech” under U.S. law, just as there is no legal definition for evil ideas, rudeness, unpatriotic speech, or any other kind of speech that people might condemn. Generally, however, hate speech is any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons based on race, religion, skin color, sexual identity, gender identity, ethnicity, disability, or national origin. Source: ala.org.

To collect statistics, the FBI has defined a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity,” including skin color and national origin. 

Hate crimes are overt acts that can include acts of violence against persons or property, violation or deprivation of civil rights, certain “true threats,” or acts of intimidation, or conspiracy to commit these crimes. The Supreme Court has upheld laws that either criminalize these acts or impose a harsher punishment when it can be proven that the defendant targeted the victim because of its race, ethnicity, identity, or beliefs.  A hate crime is more than offensive speech or conduct; it is specific criminal behavior that ranges from property crimes like vandalism and arson to acts of intimidation, assault, and murder.  Victims of hate crimes can include institutions, religious organizations, and government entities as well as individuals.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Generally, a person cannot be held liable, either criminally or civilly, for anything written or spoken about a person or topic, so long as it is truthful or based on an honest opinion and such statements.

Since 1968, when Congress passed, and President Lyndon Johnson signed into law the first federal hate crimes statute, the Department of Justice has enforced federal hate crime laws.  The 1968 statute made it a crime to use, or threaten to use, force to willfully interfere with any person because of race, color, religion, or national origin and because the person is participating in a federally protected activity, such as public education, employment, jury service, travel, or the enjoyment of public accommodations, or helping another person to do so—source: ala.org.  

Regulating hate speech beyond what is already on the books, and that which has already been interpreted by the Supreme Court leaves little room for expanding these laws. This especially true given the court’s inclination to not uphold laws that do not achieve the public’s compelling interests. We think Stengel is blowing smoke (Maybe with Harris).

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