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A new bill introduced in the House last week aims to curb White supremacy and hate crimes, but it has also sparked concern that it would blow a hole through the First Amendment.
The Leading Against White Supremacy Act of 2023, sponsored by Rep. Sheila Jackson Lee, D-Texas, would make it a federal crime not just to commit a crime that is inspired by White supremacy, but to post something on social media that promotes White supremacist views if someone else then sees it and commits a crime.
"It is a criminal hate speech law that would violate core principles of the First Amendment," George Washington University Law Professor Jonathan Turley wrote in a Tuesday blog post. "It makes clear that the accused does not actually have to support or conspire in a crime."
Much of the bill deals with making it a crime to commit "conspiracy to engage in white supremacy inspired hate crime," outlining the elements of such an offense. Normally, criminal conspiracy statutes require two or more people working together toward the commission of a crime, but this bill only requires one person to actually be involved in the crime, if another person "published material advancing white supremacy, white supremacist ideology, antagonism based on "replacement theory", or hate speech that vilifies or is otherwise directed against any non-White person or group[.]"
U.S. Rep Sheila Jackson Lee (D-TX) speaks in a news conference to discuss the House Judiciary Committee's oversight agenda following the Mueller Hearing in Washington, U.S. July 26, 2019. (REUTERS/Erin Scott)
The bill says that a published message would satisfy the bill if it is posted on social media or in any other way that has a likelihood that it would be viewed by people who are "predisposed to engaging in any action in furtherance of a white supremacy inspired hate crime" or "susceptible to being encouraged to engage in actions in furtherance of a white supremacy inspired hate crime."
Fox News Digital reached out to Jackson Lee’s office for clarification as to what those descriptions mean, but they did not immediately respond.
The bill also says that the published message satisfies the elements of the statute if a reasonable person would find that it could motivate someone with such a predisposition or susceptibility to act. A reasonable person standard is common in the law, but Turley commented on how Jackson Lee’s bill uses it to consider how a person with a predisposition to commit a hate crime might act.
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"The bizarrely written reasonable person standard is so opaque and cryptic," Turley said in an email to Fox News Digital, that it is "enthralling."
"How would a reasonable person discern a predisposition to engage in White supremacy?" Turley asked, likening it to Supreme Court Justice Potter Stewart’s 1964 test for pornography, in which he said, "I know it when I see it," rather than offer a clear definition.
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"This is so flagrantly unconstitutional on so many levels from free speech to vagueness that it is actually impressive," Turley said in his blog post, warning that while the bill is highly unlikely to pass, it is reminiscent of laws like those in the United Kingdom under which someone was arrested for silently praying near an abortion clinic and another was convicted and sentenced to four years for "toxic ideology" when he had weapons as well as SS and KKK memorabilia in his bedroom.
The very idea that a bill like this would be introduced in the first place, Turley stated, is evidence of an "erosion of free speech values" like what is happening in other parts of the world.
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