Michigan's House of Representatives Passes Legislation That Would Criminalize Hurting Someone's Feelings

When James Madison suggested 19 amendments to the US Constitution, his proposed Bill of Rights was heavily influenced by Virginia's Declaration of Rights. However, the Congress based in New York rejected seven of these amendments. Eventually, in 1791, the remaining 12 amendments were enacted into law, with none more significant to our freedom than the 1st Amendment.

Over the years, the Supreme Court has provided numerous guidelines on what constitutes protected speech and what does not. The concept of "Fighting Words" was initially discussed in Beauharnais v. Illinois (1942), where it was defined as utterances that cause harm or incite immediate violence. These words were considered to have little social value and were outweighed by the interest in maintaining order and morality. It is worth noting that the context of the nation being at war might have influenced this opinion more than the Constitution itself. Nevertheless, in a subsequent case called Terminiello v. Chicago (1949), Justice Douglas emphasized that speech should only be restricted if it presents a clear and present danger of significant harm, rather than merely causing inconvenience or unrest.

Two decades later, in Brandenburg v. Ohio (1969), Justice Warren, writing for a unanimous court, stated that the Constitution does not allow states to prohibit advocacy of law violation or the use of force, except when it directly incites imminent lawless action. Despite the defendant, Clarence Brandenburg, being a member of the Ku Klux Klan advocating the overthrow of the government, the Supreme Court overturned his conviction, emphasizing the importance of protecting speech.

In Virginia v. Black (2003), Justice O'Connor's opinion highlighted that while acts like cross-burning could be protected speech, they could be prohibited if they were intended to intimidate and instill fear of bodily harm. This case demonstrated that the intent behind an action determines whether it qualifies as protected speech.

In Snyder v. Phelps (2011), the Supreme Court ruled that even though a hateful group picketed at funerals with offensive signs targeting fallen soldiers, their actions were still protected speech. The court acknowledged that the language used was distressing and hurtful to the grieving family, but it concluded that their expression fell within the realm of protected speech.

In the case Matal v. Tam (2017), Justice Samuel Alito's opinion focused on "commercial speech." He asserted that speech should not be banned simply because it expresses ideas that may offend others. This ruling aimed to prevent the suppression of speech merely due to its controversial or unpopular nature.

When it comes to criminal statutes related to speech, the Supreme Court applies a standard known as "strict scrutiny." This means that if a law can be interpreted ambiguously, it is unlikely to survive a constitutional challenge. The Court has consistently emphasized that very few laws pass this strict scrutiny standard. Thus, criminal statutes pertaining to speech must be clear and specific to withstand judicial review.

Recently, the Michigan House passed HB 4474, which seeks to criminalize speech that causes "severe mental anguish" to another person. Critics argue that this standard is highly subjective and lacks clarity. Although the proposed law incorporates the "reasonable person" standard, it still grants considerable discretion to prosecutors, potentially enabling them to criminalize speech based on the subjective emotional impact it has on individuals.

Opponents argue that the focus should be on clearly defined criminal acts rather than the feelings of the alleged victim. They claim that the proposed law is excessively vague and subjective, leaving it open to interpretation by both victims and authorities. This raises concerns about the potential misuse of the law to stifle free speech.

Under this legislation, there are fears that pastors or students who refuse to use preferred pronouns could be charged with a crime if they unintentionally hurt someone's feelings. The penalties include imprisonment or participation in a "diversion" program, where offenders may avoid jail time if they engage in community service. However, critics contend that the suggested community service is reminiscent of re-education programs seen in oppressive regimes and is an alarming infringement on free expression.

In my opinion, if this bill is passed by the Senate and signed into law by Michigan Governor Gretchen Whitmer, it is unlikely to withstand constitutional scrutiny. What is most concerning is that Democrats, who support this legislation, appear to be disregarding the fact that they are essentially criminalizing speech they find disagreeable. This raises serious questions about their commitment to safeguarding free speech and protecting the First Amendment rights of all individuals.