Unless there are some facts here that are missing from the news coverage, this prosecution strikes me as a clear and serious constitutional violation. And it is evidence that fears that “hate crimes” laws will become “hate speech” bans are not implausible.
So argues Eugene Volokh, referencing a case in which two 16-year-old high school students have been arrested on felony hate crime charges in Illinois for posting fliers with the legend “God Hates Fags” and featuring a picture of a two males kissing, one of whom is a fellow student with whom one of the girls had been having a conflict.
An interesting legal discussion taking place in the comments, with one lawyer noting:
The whole point of “hate crimes” legislation is to stifle speech that is not politically correct. Locking up fundamentalists preachers, or at least denying their churches’ 501(c)(3) status, is soon to follow. The Supreme Court has already held that normal first amendment rights don’t apply near abortion clinics. I wouldn’t be surprised to see a similar result here.
—while others continue to scoff at the “slippery slope” arguments made by those of us who remain convinced that “hate crimes” legislation (which Volokh notes are “generally constitutional,” though bad policy) was merely an important foundational step in a legal and public policy movement to weaken the First Amendment, redefine “tolerance,” and move toward a more Euro-centric view of speech protection, a “progressive” model that tends to protect aggrieved groups from offensive speech, rather than protecting unpopular speech that doesn’t rise to the level of threat from those who may be offended by it.
It is the First Amendment essentially turned on its head—and the test cases almost always will be drawn from instances where members of some aggrieved group are publicly humiliated by speech that is not (if I’m understanding the facts of this case) knowingly intended to incite violence.
Besides, libel is generally handled in the civil courts. Here, the girls are being charged with criminal felony for uttering unpopular (and very Phelpsian) speech that is, potentially, in keeping with their religious beliefs. Which raises a whole other host of first amendment concerns.
Will the ACLU step in here? Or have they become so politicized and intent on pushing for a particular ideological agenda that they will shrug this off as a matter of local concern?
Because having read a recent feministe thread on “Lookism,” I fear that we have a large contingency in the US who have been reared on illiberal concepts of speech who would readily accept a complete revision of the First Amendment—to the point where it becomes its opposite, much like (as I discussed earlier) “patriotism,” “tolerance,” and other terms that have been carefully usurped and re-crafted by those enthralled by an egalitarian agenda that would enforce equality of outcome by policing the discourse that identifies and pressures philosophical difference.
We are, that is to say, on dangerous ground here. And I wouldn’t leave it up to the politicians—who are increasingly dependent on swing voter “blocs” (read: identity groups)—to stand on principle; nor am I comfortable allowing those who found “hate crimes” constitutional in the first place to begin contorting and decontextualizing prior anti-speech precedent for fear that they might reach a politically-motivated conclusion that will carry with it the imprimatur of constitutionality.
Certain slippery slope arguments are, of course, problematic. But remember: it was the anti-smoking crusaders who mocked what they called “the slippery slope argument” that a ban on food or “unhealthy behavior” would surely follow.
And today we have the banning of trans fats, additional taxes on soft drinks, and a New York Mayor who wants to ban incandescent light bulbs.
Time to get concerned, I’d say, if you aren’t already…
(thanks to Dan C)
Ah, my State shines again! I cannot wait to hear from the State’s Attorney as to why this rises to the level of a crime, much less a felony…
Certain slippery slope arguments are, of course, problematic.
What, are you kidding? This is America! We see a slippery slope, we strap on the skis.
So she loses her freedom and has to sit in a room with a door that only opens from one side.
This is one that I’m willing to go to jail for. I don’t have anything against gays, but I think that if this isn’t resolved quickly, it’s time to flood the system.
“Will the ACLU step in here …”
You’re kidding, right?
The ACLU has one mission: Eliminate Free Speech. It’s the first step in their Orwellian plan to eliminate conservative thought.
Of course they’re not going to step in, unless it’s to file a lawsuit against anyone who believes that homosexuality is immoral.
I may not agree with her, but I will defend her right to be a stupid little 16-year-old gaybashing asshole.
This is McHenry County, Illinois which recently charged another student with disorderly conduct for an essay that a teacher “found disturbing”. (I think that case is still in the news because the charges were just dismissed but I’m too lazy to look.)
I don’t know whether McHenry County suffers from lead poisoning or just plain inbreeding. I’ve been there three times in my whole life on business and the last two I made sure I had my deer rifle in the trunk of my car.
Ah, so you’re a Wisconsinite, too, nk? I just wish they’d stop trying to put deer tags on our cows.
From the comments at Volokh:
Nathan Hall (mail):
I think it is one thing to say that, in the current political climate, there is too much tendency to persecute those who disapprove of homosexuality. I agree with that. It is another thing entirely to say that homosexuals cannot tolerate dissent. Clearly they can. To suggest that they are somehow fundamentally incapable of such basic human courtesy toward others is a base, unsubstantiated and bigoted charge. I don’t approve of homosexuality, but those who practice it are no different than the rest of us in that they experience the urge to quash dissent from their point of view, and they are capable of suppressing that urge. *
In fairness, there are some who make the case that the Flying Spaghetti Monster may endorse a view somewhat contrary to the one expressed above.
Here’s the link to the other case I was too lazy to look for.
And Dan: No, I live in Cook County, Illinois. (But I like the Packers and listen to the Brewers games because I like Bob Euker.)
*sigh*
There are moments when I think I hear the sound of Ayn Rand and Friedrich Hayek laughing. Unless that’s my monitor, giving me cancer.
(BTW, if anyone wants to pillory me as an objectionist, don’t bother. I’m not. it’s just sometimes I wish the Atlas Shrugged script was not proceeding quite so true to form)
Kids. Speech. Felonies.
The mind boggles. What does one do with a world run off the rails? Sue it?
Right, but there’s an awfully vocal minority, and they’re making headway in defining policy.
I’m concerned.
Our last “progressive” era has a pretty mixed (leaning towards bad) record, I’m not too keen on living through another one and then trying to untangle from the consequences.
BTW, Jeff, you should really go to law school.
Myself, I would say “awfully vocal minority” could more precisely be recast as “semi-autonomous interest group within the Democratic Party.”
Yes, although it would be a waste of his talents. Shall we take up a collection?
I would dispute that it would be a waste, Dan, but I’m good for a Franklin.
Smell that?……..
Ya’ll smell that?………
Smells like Orwell.
Just tell me which valve to turn Dan.
Smell that……?
Ya’ll smell that…………..?
Smells like………Orwell.
Just tell me which valve I should turn Dan.
Actually, Law School would be cool. And insightful in any number of ways. It would be most useful (as long as you never troubled with the bar and actually practicing law). I would really be interested myself in attending. I have lots of questions. What course is it that explains the shiny, slimy and kind of silvery trail on the cement after a lawyer passes by? Is this class taught by Franklin Azar? Last question is for Colorado residents.
I could best him in an arm wrestling contest, MikeD, no trouble.
Which is why he won’t answer my email challenges. Have to change his whole ad campaign to “Call the guy with a pot belly and his arm in a cast.”
See? He’s an attractive nuisance.
Can’t send him to law school.
Happy,
Add “urban” to your list of qualifiers, and you’ll have it. Were it not for the chronic nagging of urban gays, Americs’d be a much more relaxed place. You get out of the gay ghettos, and folks just want to be left alone.
To Pablo’s point, it seems it’s the cities’ amplified political cultures, not “gays,” that are defining policy.
I should think not. And what is up with wanting to do Jeff like that…Law School? I thought we all liked Jeff.
Major, it is awful.
Is at least one of the kissing guys in the picture underage? ‘Cause I’m thinking they should just go for it and slap the girls with a child porn charge too.
If he had to change his whole ad campaign to: “Call the guy with a pot belly and his arm in a cast.†he would have greater credibility. Still, no wonder he avoids your challenges Jeff. “The Strong Arm”, my ass!
I’ll buy the urban thing. I’ve been wondering why, in context of Bloomberg etc, no one asserts that maybe we are seeing a de facto revival of the city-state. Seems like there is a new urban compact that’s becoming very powerful yet remains largely unaddressed with any explicity. Or I read the wrong stuff.
Happyfeet,
Blue baronies. All deviant’s delights, all Dem run (right smack into the ground)and pretty near all suffering from a decline in population, with families with kids streaming for the exits. Looking at the Feinstein/Pelosi barony of San Francisco, it is interesting to note that it is being bleached. The people of color[ed folk] are being shipped accross the bridge at a rather brisk clip. I guess DiFi’s and Pander Nan’s husbands needed a little more room in which to operate.
I wonder if we aren’t suffering from a rise in the political ambitions of prosecutors. It’s awfully hard to look around and not wonder about prosecutorial motives. No matter the merits of a case, prosecution motivated by political ambition can never be acceptable in a rational society. Would it not be reasonable to preclude prosecutors from running for political office for, say, five years after their last prosecution?
Ernesto J,
Here in New Orleans, we’re more concerned with a politically motivated lack of prosecutions. Our DA went from being the miracle worker who managed to finally put Fast Eddie behind bars to being utterly unable to procecute the simplest and most clear-cut murder cases.
Re: blue baronies and middle-class flight, all true, man. You can’t be middle-class in NYC. You have to be rich to enjoy it, or a poor student to romanticize it, or in a union job to survive it. I read somewhere that there are fewer private-sector jobs in NYC now than in the 1960’s. and I believe it.
Otherwise Edwards would be $55,000 out of pocket.
Think on, lads.
And it wasn’t any fun when I went through it 1991-1994…
Law school?
Are you insane? That was bloody awful! If I had known what I was in for…
Well, I wouldn’t say it isn’t any fun. I mean, there are fun days in prison too, right? Just peruse the Martha stuff here in the archives…
It’s only the river.
That’s not my chief objection over what the cheeseheads do to our fine cows.
Happyfeet has indeed pegged the rise of the “blue” city/state. The smug little sh*ts I share Chicago with think that anyone living outside of the city limits is a dumbass white breeding buffoon, and anyone living downstate is an outright untermensch. I always tell my wife that (God forbid) if anything happens to her, I’m calling the realtor before I call the funeral parlor.
Perhaps we can all band together to build walls around these new city/states – to keep the inmates in.
TW? freedom96 – no kidding.
Law school? It was a snap for me. Of course, it was a second career for me, so I was attending while in my late 30’s.
RR,
Well, I’m not quite that old yet, but almost. I know what you mean, though: compared to real work and responsibility, it’s manageable. I work full time, and help my wife out with our toddler son and our horse farm, in addition to the 4 classes or so per semester. Just finished my second year (I hope) and I can say this: it beats real work.
Safety Nazis, with credit to P.J…
They try to take your right to be ejected through your windshield when nobody has ever been killed by a flying motorist. They try to take your right to crush your own skull when nobody’s been killed by a motorcyclist’s cranium striking them. They compel you to fight a bottle of Excedrine at 7am after you drank a fifth of bourbon when nobody who stores the Excedrine in a safe place away from children has killed anyone. The kind of mentality that compels manufacturers of hair dryers to tell people they shouldn’t use them in the shower….hello? Your hair is not going to get dry in the shower anyway. The lack of these rules is a God-given tool to ensure that the stupid of this world off themselves. Why make drugs illegal when all it will do is kill people stupid enough to take them?
RE: Speech: If something someone says is true, it’s not an insult; it’s the truth. If something someone says is not true, it’s not an insult because it’s false. Why be offended by a false accusation? Why be offended if someone tells you the truth? The only limit should be yelling “he’s got a gun” at the Super Bowl or publishing information vital to the war on terror in the NYT.