Proposed Michigan hate crime law raises free speech concerns

The Democrat-led Michigan House passed a bill in June expanding the definition of a hate crime and adding sexual orientation and gender identity to a list of protected classes. But some legal experts worry that the expansion could have a chilling effect on free speech and restrict what Christians in the state can say about sexuality and gender.

The bill, which heads to the Michigan state Senate next, has already caused a stir among some media outlets. Under current Michigan law, anyone who physically harasses or threatens someone based on their race, religion, gender, color, or national origin faces up to two years in prison and a $5,000 fine. Spray-painting swastikas on a synagogue, for example, or calling in bomb threats at a cultural event could warrant a trip to jail, a fine, or both.

According to the FBI, the number of hate crimes and bias incidents in Michigan stayed relatively stable over the last three years. Most were racially motivated, but crimes targeting people who identify as LGBTQ are on the rise. In 2019, the FBI reported 44 hate crimes in Michigan associated with sexual orientation. By 2021, it had risen to 60 incidents.

Enacted in 1989, the original state law defining hate crimes has never been altered.

In addition to forbidding physical attacks, property damage, and threats of violence, the bill says “intimidation” and any action “causing … severe mental anguish” could also be considered hate crimes.

William Wagner, an attorney and professor emeritus of Western Michigan University Cooley Law School, called these additions problematic because they could treat some forms of constitutionally protected speech as hate crimes. In his view, the changes let the victim decide what classifies as hate, and he worries that a person listening to a church sermon could take offense at the pastor based on how he or she felt after hearing it.

“If a listener is edified and says, ‘Oh, I’ve changed my viewpoint, thank you very much for speaking,’ [there would be] no crime,” Wagner said. “But if the listener says, ‘I feel intimidated, I feel harassed,’ now we’ve got a five-year [felony].”

A recent Fox News headline read, “Michigan House passes bill that could make using wrong pronouns a felony, fineable up to $10,000.”

Asked about that headline, Arbit told CBS News Detroit he considered it a “far-right fiction” to conclude that someone could get jail time for not referring to an individual by his or her preferred pronouns. He said that since the proposed law requires more proof than other crimes, it would be harder for accusations of misgendering to meet the threshold of a hate crime. “In every other crime, you got to prove that a crime occurred and that this person did it,” he said. “With a hate crime, you actually have to prove intent to get a conviction.”

But Wagner argues the bill’s language leaves the matter up for debate. “It’s so vague and ambiguous that it … doesn’t provide notice of what is and isn’t a crime,” he said. “You don’t know what is a crime until after the words are uttered and the person says, ‘I was actually intimidated.’”

The proposed hate crime statute is expected to pass in the state Senate and be signed into law by Gov. Gretchen Whitmer.