Last month, the Michigan House passed Bill 4474—legislation that would expand the state’s existing Ethnic Intimidation Act beyond current protections for religion, ethnicity and race, to categories including sexual orientation and gender identity or expression. HB 4474 would make it a felony hate crime offense to cause someone to "feel terrorized, frightened, or threatened" with words—deliberately misgendering someone, for example—subject to a potential penalty of five years in prison and a $10,000 fine.
The Left has been pushing its “words are violence” premise for some time. But Michigan’s willingness to go the extra mile and criminalize gender-related speech has summoned a ghoul from some dystopian fever dream.
HB 4474 is unconstitutional, and I’m not the only lawyer who thinks so. To argue otherwise ignores two of the U.S. Supreme Court’s newly minted rulings on what speech the First Amendment protects—and what it doesn’t.
In 303 Creative v. Elenis, the Supreme Court held that the First Amendment prohibited the state of Colorado from forcing a website designer to create expressive designs conveying messages on same-sex marriage with which she disagrees. Justice Neil Gorsuch, writing for the majority, recited a long line of precedents establishing that the First Amendment not only protects an individual’s right to speak her mind, but prohibits the government from compelling her to “speak its own preferred messages.”
Yet that’s precisely what Michigan proposes to do. Its preferred messages require affirmation of another’s gender identity on pain of criminal penalty—even if the speaker believes that sex is binary and immutable, and there are only two genders.
In Counterman v. Colorado, the court examined the interplay between the First Amendment and criminal conduct—specifically, making “true threats” that are unprotected speech. The court held that for Colorado to prosecute someone for making a “true threat” of violence, it must prove a defendant had some subjective understanding of the threatening nature of his statements. Writing for the majority, Justice Elena Kagan noted that even though a true threat “lie[s] outside the bounds of the First Amendment’s protection,” prosecution of true threats poses “the prospect of chilling non-threatening expression, given the ordinary citizen’s predictable tendency to steer wide of the unlawful zone.” By requiring a showing that a defendant recklessly disregarded a substantial risk that his words could be perceived as threatening, a speaker would be prevented from—as Kagan wrote— “swallow[ing] words that are in fact not true threats.”
That means a prosecution under Michigan’s hate crime law would require proof that the speaker knew his or her speech on gender identity or expression was likely to be perceived as threatening but acted with that knowledge by issuing the threat anyway. The speaker would therefore be acting “recklessly.”
Yes, as the gender juggernaut sprints ever forward, it’s certainly likely that transgender individuals could perceive misgendering as “threatening.” They are, after all, the fraternity of the perpetually offended. However, to qualify as a prosecutable “true threat,” the speech must convey a threat to commit an act of violence; speech that is hurtful or offensive does not qualify and is protected speech under the First Amendment, regardless of whether the majority of Michiganders agree or not.
Further complicating Michigan’s intention to silence dissent is the fact that at least one federal appellate court has held that gender identity is a “hotly contested issue,” one on which reasonable people can and do disagree. Indeed, the Sixth Circuit U.S. Court of Appeals noted in Meriwether v. Hartop, that “the premise that gender identity is an idea ‘embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.’”
Despite Democratic characterizations that HB 4474 is “common-sense hate crime legislation,” the expansion of hate crimes laws to speech concerning an individual’s subjective self-identification is anything but common. It compels alignment with the state’s preferred orthodoxy, something the Supreme Court has routinely struck down. What’s more, it points the way toward even bolder government efforts to censor unpopular or politically inexpedient speech.
Whether concerning hate crimes, stalking or public accommodations, no law, as Gorsuch wrote in 303 Creative, “is immune from the demands of the Constitution.” A law that prohibits discrimination based on sexual orientation (such as Colorado’s public accommodations law), or establishes criminal penalties for speech based on gender identity or expression (like HB 4474) must still conform to the First Amendment’s protection for the freedom of speech.
The government may not prohibit expression merely because it might prove offensive to some or run contrary to its stated policy objectives. Disagreement is not discrimination, and while Michigan’s House Democrats appear to have forgotten this, their Senate colleagues would do well to remember it.
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ABOUT THE WRITER
Sarah Parshall Perry is a Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation where she focuses on civil rights, constitutional governance, regulatory policy, and the proper role of the courts.
