Jail time for hurt feelings?

Last month, the Democrat-controlled Michigan House of Representatives voted 59 to 50 in favor of sweeping new hate crime legislation, drastically updating a 1988 law that was originally designed to prevent harassment on the basis of sex, race, or religion. Democrats like State Rep. Emily Dievendorf have hailed the bill as a significant step forward against the sort of hate speech that might translate into “hate actions.” Citing his own identity as a Jewish gay man, sponsor Nate Arbit passionately declared that it’s “about time” Michigan proved it can be “so much better” at prosecuting hate speech.

Fine words maybe, but what does the bill actually say? The new law differs from the old version in two key ways: by expanding protected class status to self-identified sexual minorities, and by significantly rewriting the terms under which charges may be pressed. The old language prohibited physical assault and property destruction “with specific intent to intimidate or harass another person” falling in one of the then-current protected classes. The new language further disregards “any other motivating factors” and makes “intimidation” itself a crime, with a lengthy gloss focused solely on the victim’s perception. Anything that could cause “a reasonable individual” to “feel terrorized, frightened, or threatened” now qualifies. The bill as originally introduced would have additionally allowed a victim reporting “severe mental anguish” to bring a civil cause of action even if a criminal suit was dismissed.

Who could possibly find fault with this, except a bigot? This, of course, is the implicit challenge presented by the bill. But Republicans like State Rep. Steve Carra have risked the heat to raise concerns about how the legislation will impinge on free speech. Putting his finger on the shift of focus from perpetrator intent to victim perception, Carra forthrightly questions the wisdom of building legislation around “an individual’s feelings of being frightened.” 

Indeed, there’s the rub. With laws already on the books against assault and willful property damage, the protections granted by HB 4474 are extraneous at best and ripe for politicized abuse at worst. The last sentence of the bill makes reassuring noises to the effect that it doesn’t include “constitutionally protected activity,” but conservatives should be able to see through this sort of empty legalese by now. 

Meanwhile, when it comes to “sexual and gender minorities,” public messaging on what constitutes “harassment” is clear. It’s instructive to browse the search results just from doing an Internet search on “misgendering” and “harassment” together. An Associated Press writer refers to misgendering as “toxic” and “violent.” A Healthline article calls it “a tactic for harassment and bullying.” A UCLA Law Review article pushes to codify it as a form of attorney misconduct. In short: It doesn’t matter whether you meant to harass a trans-identifying person by “deadnaming” or refusing to use the “correct” pronouns. It’s too late. You already have.

Secondary school teachers with conservative convictions would be especially vulnerable under the new bill, as penalties may extend up to $10,000 in fines or 5 years in prison when the alleged victim is a minor. While teachers can attempt to sidestep the risk with “trans” students by simply not using third-person address, various situations make it unavoidable. In the recent past, fired conservative teachers like Pamela Ricard and Peter Vlaming have fought back in court. So far from leaving fired Michigan teachers a leg to stand on in filing their own suits, HB 4474 could put them in the defendant’s chair.

We need only look across the pond at England to see how the concept of a “hate crime” has been powerfully weaponized by the state against all kinds of free speech, including Biblical views of sexuality. Christian pastors like John Sherwood have had to fight in court just for their right to preach against gay marriage in the open air. Here, we have a constitution which should guard against such weaponization—emphasis on “should.”

Nobody of good faith opposes this bill out of a malicious desire to see people suffer harm to their bodies or their property. But this fact will be consistently disregarded in a world where it is now routinely claimed that “words are violence,” and the definition of what constitutes “violent words” is being updated by the minute. As a conservative, a Michigander, and a teacher, I hope this bill dies in the Senate. But with a Democrat majority in charge, I sure won’t count on it.