Rep. Sheila Jackson Lee (D-TX) recently filed a bill in the House of Representatives that proposes to “prevent and prosecute white supremacy-inspired hate crime and conspiracy” by expanding the definition of hate crime currently found in U.S. law.
Under the title “Leading Against White Supremacy Act of 2023,” the bill has been referred to the Committee on the Judiciary for review and recommendations. Rep. Jackson Lee filed the same bill in 2022 as well.
In the bill, Rep. Jackson Lee claims that “a person engages in a white supremacy-inspired hate crime when white supremacy ideology has motivated the planning, development, preparation, or perpetration of actions that constituted a crime or were undertaken in furtherance of activity that, if effectuated, would have constituted a crime.”
Furthermore, the proposed legislation would classify a criminal conspiracy as any event in which at least one person “engaged in the planning, development, preparation, or perpetration of a white supremacy-inspired hate crime” and another “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.”
The definition of published material included anything issued “on a social media platform or by other means of publication with the likelihood that it would be viewed by persons who are predisposed to engaging in any action in furtherance of a white supremacy-inspired hate crime.”
Additionally, Jackson Lee asserted that someone could be prosecuted under a conspiracy charge if something they published “was read, heard, or viewed by a person who engaged in the planning, development, preparation, or perpetration of a white supremacy-inspired hate crime.”
Observers, such as Jessica Washington writing for The Root, claimed the bill would allow commentators such as Ben Shapiro and Tucker Carlson to be potentially prosecuted for white supremacist conspiracy.
In response, Rep. Lauren Boebert (R-CO) attacked the bill on Twitter for “making a mockery of the First Amendment.”
Rep. Jackson Lee retorted, “Lauren, you would think now that you’re in the majority, you would actually consider reading the bills you tweet about,” calling her criticism “inflammatory and fact-less and you know it.”
Some First Amendment experts, however, have expressed concern with the legislation, suggesting that it might run afoul of the Bill of Rights.
Gary Krupkin, a Richardson-based member of the First Amendment Lawyers Association, explained to The Dallas Express, “While it is laudable that Representative Jackson proposes legislation that would limit ‘hate speech,’ that type of often-heinous and divisive speech is protected by the 1st Amendment.”
“There are many 1st Amendment cases on which reasonable people can disagree with the Supreme Court, but it is nonetheless imperative in a democratic society to have a vigorous exchange of ideas,” Krupkin continued.
“The ‘marketplace of ideas,’ requires that the answer to hateful speech is more speech that will, hopefully, dissuade persons to abandon hateful speech.”
David Keating, the President of the Institute for Free Speech, told The Dallas Express, “fortunately, it’s not going to pass in this Congress. I think we can, we can bet the farm on that one.”
“But I mean, this bill is clearly unconstitutional,” the free speech advocate continued. “It goes against some of the most important and famous free speech cases including NAACP v. Claiborne Hardware Co. [1982].”
Giving an example, Keating suggested, “Suppose if you’re a journalist and you write something a news report, and that news report caused some nut to commit a crime because he didn’t like what was reported on.”
“The bill would deem you as having conspired with the person that committed the crime even though you have never met the person, never spoken to them, never corresponded with them, never had any communication with them at all,” he claimed.”
“That’s a really strange definition of a conspiracy,” Keating remarked. “It’s so flagrantly unconstitutional in what it is proposing.”
Similarly, Kevin Goldberg, a First Amendment Specialist at the Freedom Forum, agreed that “the bill attempts to criminalize perfectly legal speech.
“Though abhorrent, hate speech is protected by the First Amendment unless it involves a true threat against another person or incites others to commit imminent lawless violence.”
Rep. Jackson Lee has, so far, not addressed the First Amendment concerns some have with the bill, instead insisting that previous incidents demand that “white supremacy should be added to this law. Why? Because as Director Wray testified, it’s a major domestic terrorist threat.”