A unanimous panel of the Sixth Circuit Court of Appeals today directly repudiated right-wing demagogues who claim that hate crimes legislation chills their First Amendment rights to preach against homosexuality. This stock talking point of the far right was the basis of a lawsuit filed in Michigan in which the plaintiffs were represented by the Thomas More Law Center. Since it didn't pass the laugh test, that lawsuit was rightly dismissed by a district court, a decision that was upheld today by the circuit court.
To establish standing to file a federal lawsuit, the plaintiffs had to do one of two things: The first option was to show that they intend to violate the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. They say they want to preach against homosexuality, but don't plan to willfully cause bodily injury, which is the conduct prohibited by the Hate Crimes Act. As the unanimous court said:
Plaintiffs provide no legal authority for the proposition that constitutionally protected speech – that is, other than "fighting words," "true threats," or "advocacy [that] is directed to inciting or producing imminent lawless action" – is a "violent act" that "causes bodily injury." We looked; there isn't any. …
So why are Plaintiffs here? If the Hate Crimes Act prohibits only willfully causing bodily injury and Plaintiffs are not planning to willfully injure anybody, then what is their complaint? Plaintiffs answer that they fear wrongful prosecution and conviction under the Act. Not only is that fear misplaced, it's inadequate to generate a case or controversy the federal courts can hear. [internal citation removed]
The second way to establish standing would be to show that the Hate Crimes Act chills their constitutionally protected conduct. The plaintiffs point to undated statements by various people and organizations accusing them of promoting violence through their speech, but:
conspicuously absent from Plaintiffs' allegations is any express (or even implied) threat of official enforcement of the Hate Crimes Act against Plaintiffs or any other religious leaders for the type of conduct they seek to practice: there is nothing that objectively supports "a credible threat of prosecution."
At some point, hopefully soon, the churches that engage in the type of demagogic deception we saw against the Hate Crimes Act will look back upon this period and apologize for their shameful conduct.