That seems to be the theory of this prosecution in Illinois:
A 16-year-old Crystal Lake girl facing a felony hate crime charge alleging she and a friend distributed anti-homosexual fliers at her high school must remain locked up until her case goes to trial, a McHenry County judge ruled Tuesday.
Citing concerns over the girl’s home environment and her already lengthy juvenile record, Judge Michael Chmiel denied the girl’s request for home detention.... The girl’s record, Chmiel said, features 13 contacts with police, including an arrest for marijuana possession in August....
She and her 16-year-old friend each face charges of hate crime, disorderly conduct and resisting a peace officer stemming from their arrest May 11 outside Crystal Lake South High School. The charges allege the girls were distributing fliers showing two men kissing and containing inflammatory language toward homosexuals....
The fliers show two men kissing — one of them apparently "a male classmate[,] and neighbor of one of the girls[,] with whom they had been feuding" — coupled with the words "God hates fags."
The other girl was let out on house arrest (she's being electronically monitored, and can only go to "school, counseling, work or other activities approved by a probation officer." Her lawyer, Charles McKenney, is quoted as saying, "I believe [the prosecution] more attacks the speech, and at this point, they haven’t shown what conduct was truly disorderly."
This strikes me as a very serious First Amendment problem. Hate crime laws that apply harsher punishment to people who commit assault, murder, or other crimes are generally constitutional (though I think they're generally misguided as a policy matter). Hate crime laws that apply harsher punishment to bias-motivated threats, face-to-face insults that are likely to provoke an immediate fight (so-called "fighting words"), and other unprotected speech, might be constitutional; compare Wisconsin v. Mitchell with R.A.V. v. City of St. Paul.
But here the speech does not fit within any existing exception. It's contemptible and offensive, but it is not sufficiently clearly threatening to fit within the exception for true threats, it's not a face-to-face insult likely to cause immediate violence, and it doesn't fit within any other existing exception to constitutional protection.
Calling it "harassment," "breach of the peace," "disorderly conduct," or "intentional infliction of emotional distress" is just labeling, and doesn't explain which First Amendment exception strips the words of protection. If anything, it highlights the vagueness of the legal theory under which the prosecution is operating, since these terms do not clearly define which speech will be punished by the law, and thus pose the three related problems of vague speech restrictions: lack of fair notice to speakers, risk of discriminatorily viewpoint-based enforcement, and tendency to deter speech. It's not just about "God Hates Fags"; if those words can be made a felony under one of these vague rationales, a wide (and unpredictable) range of other words could be punished as well.
So here it does seem like "hate crime" laws are being used as a speech code, and a speech code that makes the speaker into a criminal — in fact, given the nature of hate crimes enhancements, a felon — rather than justing lead to administrative punishment of high school students (which might be appropriate here, if the speech causes a disruption at school, though there's some uncertainty about whether that's covered by Tinker). Unless there are some facts here that are missing from the news coverage, this prosecution strikes me as a clear and serious constitutional violation. And it is evidence that fears that "hate crimes" laws will become "hate speech" bans are not implausible.
I should note that I don't know the law related to bail and to house arrest in juvenile cases. I therefore can't opine on the propriety of detaining one girl without bail and placing the other under house arrest pending trial, rather than letting both of them out on bail without house arrest, which I take it would be the norm for most adult crimes (except when there's a flight risk, a risk that the defendant will violently attack witnesses, or an extremely grave crime being charged).
Thanks to readers Fred Ray and Michael Lorton for the pointers.
Related Posts (on one page):
- Crimes and Motivations:
- Fliers With Person's Picture + "God Hates Fags" = Felony:
http://blogcritics.org/archives/2007/05/24/133000.php
Or are there different categories of unprotected speech - those that may be criminalized (and have hate crime penalties tacked on) and those that allow only civil remedies? I don't remember such a distinction.
(1) Unless I'm mistaken, Illinois does not outlaw criminal libel, nor is there anything in the disorderly conduct statute that makes clear that that statute implicitly covers libel.
(2) I don't know of any evidence that the implication that these man were gay is false. Moreover, to be criminal libel, the statement would likely have to be knowingly or recklessly false (there is some uncertainty about that, given Dun &Bradstreet, but it's likely the better view, especially given the traditional criminal law requirements of mens rea). And in fact the premise of the hate crime prosecution is that the defendants were acting because of the "actual or perceived ... sexual orientation" of the target, so they presumably believed that the target was gay (though I suppose that if they knew the other person wasn't gay, and included the photo just to fault the person with whom they had the disagreement, that might be criminal libel in those states that have criminal libel laws).
(3) Punishing libels motivated by the target's race, religion, sexual orientation, and the like more than other libels would highlight, I think, the R.A.V. problem I raised in the post. Consider, for instance, if libeling someone because you disapprove of his religion were a felony, while libeling someone for other reasons was a petty misdemeanor; that, I think, would raise in spades the as-yet-unresolved tension between R.A.V. and Mitchell as applied to unprotected speech.
(4) To answer the question in your last paragraph, the Court has indeed generally rejected such a distinction (except implicitly as to libel claims brought by private figures on matters of public concern, see Gertz v. Robert Welch's rejection of punitive damages but acceptance of compensatory damages in such situations). There may, however, be some such distinction when it comes to the void-for-vagueness doctrine, which is applicable to civil liability for speech but may be especially applicable to criminal liability.
How would a prosecutor or civil plaintiff prove that "God hates fags" is objectively false? If the claimed falsity is the suggestion that the males pictured are homosexual, there is some authority that, since private, consensual homosexual conduct cannot be criminalized consistent with Lawrence v. Texas, caliming that another is homosexual, even if false, is not defamatory.
There's no doubt that it's legitimate to criminalize resisting arrest, as a general matter. But in my admittedly limited experience, if they haven't charged her with assaulting an officer, she likely didn't resist arrest, either.
I'm a little hazy on libel law, but isn't truth an affirmative defense, rather than falsity being an element of the action? In that case, wouldn't the defendant bear the burden of proving that God, in fact, hates homosexuals? How does one establish that? Is the Old Testament admissible over a hearsay objection when the declarant is clearly outside the court's jurisdiction, and may be unavailable on the basis of non-existence?
That's possibly the silliest comment I've ever seen uttered without an emoticon.
I understood Antares79's libel suggestion as relating to the assertion that the depicted men are gay. That is a factual assertion that could form the basis of a libel lawsuit or prosecution, if it is indeed false and possibly knowingly, recklesly, or negligently false.
(I say "possibly," suggesting there might be strict liability, and list several different required mental states because the mental state question depends on how the Sullivan / Gertz / Dun &Bradstreet First Amendment question shakes out in the criminal law context, and how the criminal libel law is interpreted. I do not think there's need to similarly qualify my statements in the first paragraph, or the requirement that the allegation of homosexuality indeed be false for modern criminal libel law to apply, if Illinois had had such a law.)
In many jurisdictions, there is the possibility of giving constitutional civil liberties some measure of horizontal effect, on the reasoning that a failure by the state to act against certain acts (or omissions, etc.) violates the victim's rights under the constitution. Such logic applies for example in the Irish doctrine of constitutional torts. (The locus classicus is the failed attempt, by the plaintiff in Hanrahan v Merck Sharp and Dohme, [1988] ILRM 629, to apply the doctrine to get around their evidence problem with regards to causation.)
Where civil liberties, such as the right to privacy and the right not to be discriminated, work horizontally, all of a sudden the problem becomes one of a clash of rights: one person's right to free speech against another's right of protection against discrimination and violation of privacy.
If that were true falsely accusing someone of being a drunkard wouldn’t ever be actionable as defamation.
Aren't you glad that when homosexuals were pushing for freedom to do as they wished in private that the government didn't criminalize that advocacy? It's unfortunate that gay activists aren't prepared to be as tolerant now that they are in charge.
If the indroctrination by teachers isn't successful, they'll have to all be locked up. The Soviets did it. It's the only way to insure Leftist thought prevails. nevermind rights. They just get in the way of doctrinal purity.
2. How does one libel a group? If we have reached the point where groups may be libeled (as opposed to individuals or a specific organization), then freedom of speech no longer exists. "Republicans hate the poor." Criminal libel! "Democrats are all Pinkos." Criminal libel.
There are people who won't tolerate difference of opinion. They are the ones that believe that you should arrest someone for distributing flyers like this, or wearing a T-shirt that quotes Scripture on National Day or Silence.
I stand by my statement. Homosexuality. Freedom of offensive speech. Pick one.
Yikes - I am sorely missing something. Can someone give me the cite to the case(s) holding/stating a criminal libel law unconstitutional? [UPDATE: Very sorry, I meant to say "constitutional" -- I've corrected the comment above; thanks for pointing it out.]
Louisianna appears to have a criminal defamation law:
http://www.legis.state.la.us/lss/lss.asp?doc=78544
It is unconstitutional?
The one thing I am unsure about is Eugene Volokh's slippery slope argument that this "is evidence that fears that 'hate crimes' laws will become 'hate speech' bans are not implausible." I am very much open to this idea at this point, but I would be very interested in hearing about the linkage between hate crimes laws and what is essentially a hate speech ban in this case before I would be convinced. After all, it does not take any sort of "slippery slope" for enforcement authorities to behave in a very ridiculous manner, as is illustrated by Orin Kerr's post about the man fined $400 and sentenced to 40 days community service for using Wi-Fi from a coffee shop.
We have "a number of examples" of anti-gay speech being treated as crimes? While I've seen debates on rules about what t-shirts students can wear in schools, please remind me what other cases involved criminal prosecutions.
And I'm intrigued to hear that "gay activists" are now "in charge" of criminal prosecutions in Illinois.
I believe that in the early 1970s, California may still have had a criminal libel statute. I say that because one of the underground sex papers of the era, the Los Angeles Star, was prosecuted apparently under the criminal libel statute for running a photograph of a naked woman with the actress Angie Dickinson's head not very experted placed on it.
Criminal libel statutes existed from the very beginning of America--and Peter Zenger's trial was for criminal libel. The second section of the Sedition Act was effectively a federal criminal libel statute, because it made it unlawful to write or publish "any false, scandalous and malicious writing or writings....." Note that "and": it had to be false as well as scandalous and malicious. There were abuses of the Sedition Act by Federalist judges and juries, but the Constitutionality of it would seem clear to me.
But if God is everywhere, isn't he subject to universal jurisdictioon? It's just that serving the subpoena is difficult.
Must not be impossible, tho. I recall reading in The Onion about an antitrust suit brought against him by Odin, Thor, Baal and others, claiming that as a result of his restraint of trade their sacrifices had fallen off to nothing.
Criminal libel -- when I was at Interior in the 80s, another attorney (about my age, so this must have happened in the 70s) mentioned having prosecuted a criminal slander case in Virginia. I was astonished to hear there was such a thing, but he assured me there was. (As I recall, the offense was calling somebody a "ho," so maybe they could have popped Imus).
Specific organizations are abstractions that, in fact, represent groups of people. While I agree with your sentiment that the bringing of criminal libel charges in the cases you mention would be very unwise, I am equally against criminal libel charges in cases involving individuals. Furthermore, the fact is that both the statements "Republicans hate the poor" and "Democrats are pinkos" are factually true, if you interpret these statements are meaning "some Republicans hate the poor" or "some Democrats are pinkos." In a country with millions and millions of people in both groups, surely there are some people with these very strange views that you describe. I think for that reason (at least - there may be other reasons we wouldn't have to worry about this), we would not really have to worry about even civil libel cases for statements like these. There is also the issue of damages, which in these cases would be nil.
Overall, you have yet to make the case that libel applied to groups is a problem, but it is okay for specific individuals and the groups that we call "organizations." I generally am of the feeling that libel should not even result in civil liability when it is directed towards individuals. (Although I do support narrowly drawn laws that provide civil or criminal punishments for false statements in particular contexts.)
As far as your statement that we have to choose between tolerating homosexuality and freedom of speech, this inflammatory statement is obviously wrong, and a product of poor logical thinking on your part.
While these other examples aren't criminal prosecutions, they are effectively homosexuals using the heavy hand of government to silence opposition. Like this Canadian school teacher who was punished for writing a letter to a newspaper. Of course, there's always the "We won't print gay marriage invitations" case in Washington State.
If you can't distribute a flyer that denigrates homosexuaity without being charged with a felony, what does that tell you about who is in charge?
Well, being right about such things is depressing. I'd rather have been wrong.
Still, I am confident that the person who told me I was full of it really thought that using hate crime laws to stifle unpopular speech is a good idea, and the goal.
I didn't say that I approved of them--just they are Constitutional.Except that anyone making such statements intends them to be interpreted as "all" not "some." If you think otherwise, imagine how you would react to the statement, "[X] men are child molesters." Would you read that as "Some [X] men" or "All [X] men"?
Try this: Freedom of offensive speech. Punishing disapproval of homosexuality. Pick one.
Note, however, that it is entirely possible for homosexuality and criticism of homosexuality to coexist peacefully without anyone getting sued or prosecuted. Granted, some people on both sides don't want that to happen, but there's no reason it can't work.
Since this "crime" occurred in Illinois, it seems misleading to compare it to cases outside the US.
HaHaHa. Good one, Shelby.
Oh, wait... You were serious?
True. Of course, if you don't have any cases inside the U.S., what other choice do you have when making an unconvincing argument?
Second, of course my point was that this one particular prosecution does not in any way support your claim that "gay activists" are "in charge" of criminal prosecutions in Illinois. Note that, at least based on EV's post and the linked article, we have no idea who made the decision to prosecute this case (a bad decision, IMHO, FWIW).
Dumb prosecutions are brought all too often -- see the Michigan case involving the guy prosecuted for "stealing" from a coffee-shop's WiFi connection discussed in another thread. One such case does not mean "activists" of any stripe are "in charge."
Unfortunately, this is just another example of your complete irrationality -- or indifference to what would normally constitute a rationally-constructed argument -- when it comes to anything to do with gays and lesbians.
Beauharnais v. Illinois is a 1952 Supreme Court case upholding a group libel statute -- and a criminal one at that. Now, I doubt it's still good law, but the point is, this isn't a recently-invented concept.
where is the ACLU? they increasingly are absent on politically incorrect speech cases. great editorial in the WSJournal about that, with examples etc.
That said, with the addition of one word, which I will italicize; his statement:
"
Is a very appropos one, at least in all areas where the heads of the body politic view their electoral success to depend on more rather than less contented homosexuals.
It appears that criteria is sadly satisfied in Illinois, and in the other places he mentioned.
Yours, TDP, ml, msl, &pfpp
Oh, we know the answer to that. It's part of their subversive pro-homosexuality agenda.
Those were a few examples that I was able to find it about two minutes of searching, and which made the news. How many others didn't make the news, or that I couldn't find in two minutes?
Actually, it has a bit more to do with my concern about how civil liberties are increasingly threatened by a group that can't tolerate even a little criticism by people that are completely marginalized by the power structure.
What a regrettably Ameri-centric and illiberal viewpoint.
Yours, TDP, ml, msl, &pfpp
Let me know when the Supreme Court uses a foreign opinion to severely cripple the First Amendment. I don't see it as likely, anytime soon (though I suppose I could be wrong).
I'm not so sure about the "socienty that homosexuals want" thing either. To my knowledge, while there are some homosexuals who would like to criminalize anti-gay behavior, there's a larger majority in that group who would prefer to reduce anti-gay behavior through ostracization and other social means, not legally. Those techniques seem pretty much in line with the free-market ideals of this site.
To broaden my thought, there is probably someone from group X that would want to criminalize anti-X behavior. That doesn't mean that all of group X wants this, or that their opinions would be taken seriously (outside of some misguided prosecutor in Illinois, and extreme members on either side of the aisle).
Thanks for the nice setup.
/=
What is it about posting that suddenly makes all errors apparent? Yikes. TDP, ml, msl, &pfpp
I didn't put any time limit on you when I asked you to support your claim about criminal prosecutions. And I would have thought that since gay/lesbian issues are an abiding obsession of yours on this blog, and since you referred to "many" such incidents that Eugene Volokh had discussed on this blog, you could have come up with support for your claim without having to go to great lengths, and for that matter without one of your two cases coming from a foreign country (and if you get to do that, do I get to point to foreign countries where being gay/having gay sex is a crime?)
Your new claim that gays generally "can't tolerate even a little criticism" would be an absurdly false over-generalization about millions of people, even if we knew enough facts about why this prosecution was brought to blame it on certain "activists" -- which we don't.
I think you are inappropriately shifting the burden of proof here. You are the one that is suggesting that "homosexuality" is the cause of these specific freedom of speech problems. That is interpreting you favorably. When you say, "Homosexuality. Freedom of Speech. Pick One" I think that the more natural, but less favorable interpretation is to think you are saying the two things are mutually exclusive. But, let us go with the interpretation more favorable to you, which would that just that the toleration of homosexuality has led to certain freedom of speech problems.
There are alternative explanations. One explanation is that there is a problem of political correctness run amok in certain situations. That these sorts of charges would actually be brought for a wider range of offensive speech than those involving homosexuality specifically. Another explanation is that this is a particular case where specific members of the law enforcement community are acting in an irresponsible and unreasonable manner. (From Orin Kerr's post yesterday, I would not conclude: "Free Wi-Fi for coffee shop customers. Not being subject to unreasonable treatment by law enforcement. Pick One." The problem in that case is that the police officer, prosecutor, and judge were all useless nuisances who behaved in an unreasonable manner and abused their positions of power. The problem was not that a coffee shop chose to provide free Wi-Fi.)
In general, in the face of n explanations for x, all of which seem the more like more plausible explanations, the burden should be on you to establish that your favorite (and in the absence of persuasive evidence, very implausible) explanation is the best. The burden is not on others to establish not x. The reason is that when there are so many alternative explanations, probabilistically, your favorite explanation is not correct. Before you can reasonably expect someone to argue not x, you have to put forth evidence that, if unrebutted, brings us to believe that x is more likely than not to be true. Your provision of entirely antecdotal evidence is suggestive of confirmation bias, more than establishing the logical relationships: societal toleration of homosexuality implies suppressing freedom of speech. You are the one with the crazy idea. The burden is thus rightly on you to establish it with more than mere anecdotal evidence more suggestive of confirmation bias than genuine insight.
Gee I don't know? Prosecutors who over-reach, are power-mad and insane? But, I'm being repetitive...thrice.
More seriously, (and not that I support this prosecution) it seems that the restriction is in distributing a flyer that denigrates homosexuals, and depicts a particular person, not in just denigrating homosexuals.
In most states you can only deny bail if the defendant poses a threat to a particular person or the community at large, or poses a risk of not showing up. Abuses like this are depressingly common. I would love to see conservatives start throwing around the term "activists judges" when they require pre-trial bail conditions for non-violent offenders. I ain't holding my breath though.
The personal jurisdiction/service of process problem for supernatural beings was also a major stumbling block for the plaintiff in United States ex rel. Mayo v. Satan, 54 F.R.D. 282 (W.D. Pa. 1971). (And yes, it's a real case....)
True, that was some time ago, but it's evidence that right-wingers can be just as intolerant as left wingers.
I myself think it's wrong to arrest the girl, but I think it would certainly be proper to send her home from school or some such sanction for being disruptive.
No doubt the girl is a Christian, spreading the love of Jesus to everyone....
As we've agreed (amidst the noise and confusion), the actual underlying charge is disorderly conduct, which is a legitimate matter for legislation, I would think. The factual question is whether this act rises to that level. As you point out, it likely does not - but . . . so?
This is not to condone wrongful arrest or charge, but what we have is merely a case of someone being charged with a crime where the facts don't support the charge. That's unfortunate, but not a tragedy in itself - nor necessarily a Constitutional crisis. If the facts really don't support the charge, hopefully the charge will be dropped or the defendant will be acquited. If the defendant is wrongfully convicted, that would be regrettable, but I don't see how it imposes a blanket restriction on speech, any more than being wrongfully convicted of running a red light imposes a blanket restriction on driving. It seems to me you are adopting an over-reactive reading of a fairly ordinary case of questionable criminal charges for unquestionably bad behavior.
(And on that latter point, it's not obvious - thought it may well be true - that the girl's behavior was not disorderly in the legal sense. She was not merely expressing a hateful and inflammatory opinion, she was directing it at a specific, identifiable person in an environment in which that could reasonably be expected to result in negative consequences to that person. Again, it may be a stretch to find that that is disorderly by the accepted definition, but that requires a prediction of the likely consequences of the act; the arresting officer's pessimistic prediction [that inflaming high-school students in a conservative state with bigoted religious language and provocative photos of one of their own classmates would result in disruptive behavior] doesn't seem indefensible.)
Thanks for the nice confirmation. So we now know that you believe the U.S. Supreme Court has a "subversive pro-homosexuality agenda."
Does it currently have this subversive agenda, or was that just a characteristic of the Lawrence Court? Which Justices are part of this cabal, and which ones are being duped or unduly influenced?
When you go to a football game, do you think the players in the huddle are talking about you?
"Allah Hates Faggots" case get to court
or the next Danish Cartoon case
what happens 2 protected classes bump heads over whose victimhood has preference.
Clayton E. Cramer wrote at 5.24.2007 3:21pm:Specifically, California's constitution made the jury the ultimate trier of both law and fact only in cases of criminal libel, not civil libel. That's Article 1, Section 9, Liberty of Speech and of the Press, in the Constitution of 1849, revised 1879. That provision is no longer in the California Constitution, as you note below.
Clayton E. Cramer wrote at 5.24.2007 3:34pm:My history recap here is based on recollections, and I don't have any cites handy. The California legislature in the late 1970s or early 1980s undertook a series of legislative revisions to "update" or "streamline" statutes and constitutional provisions. Among those was the elimination of the Penal Code provision for criminal libel. After eliminating that provision, they removed the constitutional protection for juries in Article 1, Section 9 that applied only to criminal libel. I believe the constitutional revisions and tons of others were approved by the voters in a series of referenda at the time.
I think it is one thing to say that, in the current political climate, there is too much tendency to persecute those who disapprove of homosexuality. I agree with that. It is another thing entirely to say that homosexuals cannot tolerate dissent. Clearly they can. To suggest that they are somehow fundamentally incapable of such basic human courtesy toward others is a base, unsubstantiated and bigoted charge. I don't approve of homosexuality, but those who practice it are no different than the rest of us in that they experience the urge to quash dissent from their point of view, and they are capable of suppressing that urge.
Free speech is meant precisely to protect that with which you not only vehemently disagree, but that with which you would spend a lifetime opposing if necessary.
Unless you’re going to tell us that the bike messenger was criminally prosecuted for wearing the T-shirt, that example doesn’t really show any sort of symmetry with the actual example that was the topic of this thread..
I generally agree with your definition of what free speech is meant to do, and I don't believe what this girl did merits a criminal charge. But I'm not sure your analogy is precise. The defendant here was passing out fliers specifically attacking one individual person -- a "classmate," so we assume a boy of 16 or so -- at his school, using very vile terms.
Again, I don't think that should be criminalized. But it is disruptive, disorderly conduct, at least in the normal, non-legal uses of the word. And it's not quite the same thing as a general anti-war protest or even a personal attack on a public figure/political leader.
I wouldn't hold my breath waiting for the ACLU to weigh in on this one. [see Wendy Kaminar, former ACLU board member, in yesterday's WSJ re ACLU and Harper v Poway.]
http://www.opinionjournal.com/editorial /feature.html?id=110010111 (drop the space)
PS Still don't know why I can't create link using "Link" feature here.
I’m not a big fan of the ACLU but there doesn’t seem to be a First Amendment issue in the case of a privately owned newspaper declining to publish something or even in the State Department making a statement that the cartoons were protected speech yet probably offensive to Muslims.
1. Highlight some text using either your mouse (left click and sweep mouse over test) or mouse and keyboard (left click cursor at one end of text, release mouse clicker, move mouse cursor to other end of text, hold down shift key and left click mouse).
2. left click on "Link" button. A box will appear with a text line for URL. Type or paste URL into the text line.
3. Left click mouse on "OK" in the magic box.
4. The text you highlighted will appear in a properly formed link.
YMMV
I think dumb prosecutors make dumb decisions about prosecutions too often, without their being any big "activist" agenda involved. And I still think Clayton's claim that "gay activists" are "in charge" of prosecutions in Illinois is unsupported.
But on the other hand, you have my sincere thanks for explaining the link function, which for whatever reason never worked for me before.
The Illinois Hate Crime statute enchances the penalty for (among other things) disorderly conduct based upon (here) sexual orientation.
There's no hate crime without the initial disorderly conduct, which presumably is the flyers. Illinois' disorderly conduct statute is:
This was the same statute used to arrest that kid who wrote a stream of consciousness essay in which shootings figured as blogged about here AIUI, charges have finally been dropped.
The real problem here is the proclivity of Illinois police officers and/or State's Attorneys to charge silly things under this law.
I suspect the ministers were harassing participants in the Pride festival. While I wasn't there, I have experienced similar events at Pride festivals. Fred Phelps is not the only person out there with a bullhorn.
Still, the line:
made me think, "gosh, I haven't been to a Pride celebration with a drag contingent in years!"
But still,
I've been to Pride festivals. Why do I never encounter stuff like this? It sounds like fun. Okay, I've seen the drag queens. And I've seen people wearing less than they usually do in public (unless that public place is a beach). Does that count as nudity? And I've heard off-color language used to describe public anti-gay figures, so I have to grant the "obscene language" point. But no porn.
It's not nearly as salacious as the Christian Examiner makes it sound.
These criticisms treat the ACLU as if it were a monolithic organization. Different branches have different policies. Recently there has been a huge schism at the national board level, with charges and countercharges flying, and the author of the Wall Street Journal piece, Wendy Kaminer, a former national board member, was one of the main protagonists in that dispute. But, as a Nation magazine piece on the dispute, ACLU v. ACLU, says: "Oddly, it's not a dispute about the ACLU's overall performance in the five years since [Anthony] Romero took over."
Perhaps those on both the left and the right ought to give the ACLU a chance to sort out its own internal struggles before we seize on the words of a disaffected former board member to condemn it. If there is something wrong with ACLU policy in this area, perhaps Kaminer's criticism will help correct it. The ACLU has done enough great and principled things that I'd give it the benefit of the doubt. Remember that this is the organization that lost a third of its membership over its support of the Nazis right to march in Skokie, Illinois.
But N.B.: idiotarianism is not exclusively an ideology of the left or right, or liberal or conservative or libertarian, or gay or straight, or any particular religious persuasion. Idiotarianism is the ideology of ... drumroll ... idiots. Sometimes they're organized. Sometimes not.Absent strong evidence that the assertion is true, I agree that "gay activists" are not in charge of Illinois prosecutions, no matter who asserted it.You're welcome. I hope it works for you now.
If? Perhaps? Oh brother...
I'll be blunt: The ACLU is evil.
All persons may speak, write and publish freely, being
responsible for the abuse of that liberty.
(Source: Illinois Constitution.)
People v White (1976) deals with this clause in respect to fliers, on a different issue. An Indiana case, Price v State (1993), looked at the way disorderly conduct statutes are used to deter speech that cops don't like, and construed a state constitutional provision similar to Illinois'. So it's not just a 1st A. issue; it's a free speech issue. Routinely, these cases are dropped before trial. That's part of why the bail issue is important here. I'd think she has standing to sue the county, but probably can't find a lawyer. The aclu gets 1000 calls per case it takes. As with the supreme court, you can't conclude anything by the aclu not taking any given case. I don't know the facts behind the resisting arrest aspect - that might affect her tactical decisions.
I’m not asking a question about the practice of these laws as currently implemented, I’ asking about the utility of these laws as they could be implemented.
The major way that bias is found is not by the way that a topic is reported, but by the topics that are reported. If you find a topic, such as the case of the torture/murder of the Christian/Newsome couple by a group of black people does not meet your paradigm, you don’t have to report on it, you simply ignore it.
If it supports your paradigm, like the “Duke rape” case, you cover it wall-to-wall.
Thus the ACLU.
The major way that bias is found is not by the way that a topic is reported, but by the topics that are reported.
This should read:
The major way that bias is found is not by the way that a topic is reported, but by the topics that are NOT reported.
Generally Hate Crime statues are written to require an underlying crime--they then make such a crime a more serious crime then it would otherwise be if it weren't done for a "bad motive."
That's the way the Illinois Statute at issue is written:
Link
That sounds like “hate crimes” are aggravating factors. I wonder if other statutes are written the same way. I’m also curious that the statute is as short as the one you cited. Is that all that is to it? Apparently it’s not so thanks to you I checked out the statute. It lets the law use “hate crimes” as an adjunct to “disorderly conduct” which can be pretty much anything that you want it to be.
(720 ILCS 5/12 7.1) (from Ch. 38, par. 12 7.1)
Sec. 12 7.1. Hate crime.
(a) A person commits hate crime when, by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals, regardless of the existence of any other motivating factor or factors, he commits assault, battery, aggravated assault, misdemeanor theft, criminal trespass to residence, misdemeanor criminal damage to property, criminal trespass to vehicle, criminal trespass to real property, mob action or disorderly conduct as these crimes are defined in Sections 12 1, 12 2, 12 3, 16 1, 19 4, 21 1, 21 2, 21 3, 25 1, and 26 1 of this Code, respectively, or harassment by telephone as defined in Section 1 1 of the Harassing and Obscene Communications Act, or harassment through electronic communications as defined in clauses (a)(2) and (a)(4) of Section 1 2 of the Harassing and Obscene Communications Act.
From Findlaw:
Almost every state has a disorderly conduct law that makes it a crime to be drunk in public, to "disturb the peace", or to loiter in certain areas. Many types of obnoxious or unruly conduct may fit the definition of disorderly conduct; as such statutes are often used as "catch-all" crimes. Police may use a disorderly conduct charge to keep the peace when a person is behaving in a disruptive manner, but presents no serious public danger.I have checked into this case and it appears that one of the girls is – what people refer to as - a “troublemaker.’ So it appears that the local prosecutor has decided to lock her away and is using any means at his disposal.
What I find downright funny is that this blog is usually full of people who find that the Patriot Act’s provision allowing the Feds to search your library records – for which literally zero people have been investigated let along prosecuted - is the moral equivalent of the Nuremburg laws. Yet their response to this case is: “it’s no big deal; a one-off thing by a rogue prosecutor, it’s no big deal, what are you getting worked up about, and can God be subpoenaed?”
I’m rather glad that the people submitting these comments are not standing in the way of Leviathan.
As to the ACLU and its defenders - are there really that many teenagers across the country sitting in jail for engaging in protected speech? I would think that if that were true, we would have heard about it, at least here at the Volokh Conspiracy. I will retain my belief that they didn't intervene here because it wasn't politically correct, until I can see some evidence that the local chapter is defending more deserving defendants in 1st Amdt. and Free Speech matters.
Dollars to donuts these kids aren't going to be prosecuted. Just taught a lesson. Self-censor. Now, since they aren't prosecuted and convicted, there is no appeal. On what grounds would somebody, anybody, have any legal basis to stop this? "Well, we thought it didn't rise to the level of seriousness we want to address. So we let them out after we came to that conclusion. A week? Was that what it was? Well, you see the system works."
I think I said something about that on another thread. As I keep saying.
In general, I am in favor of hate crimes laws, but only if they are carefully tailored. They do serve a purpose, but I know many people disagree with them, and I respect that.
A 16-year-old Crystal Lake girl facing a felony hate crime charge alleging she and a friend distributed anti-homosexual fliers at her high school must remain locked up until her case goes to trial, a McHenry County judge ruled Tuesday.
I am also glad to see that detaining someone to teach a lesson is ok with you, or is the detention just ok when it is a lesson you want taught.
I would suggest these children pursue an extraordinary writ on the principle offencs as the conduct they are charged with fails to make out a colorable offense and hence the charging court lacked jurisdiction over them.
There actually are a couple differences between this and Hustler. The most significant is that it is generally accepted that people who haven't put themselves into the public eye deserve more privacy protection. Also, one of the major points in the Hustler case was that it couldn't have harmed Falwell's reputation because pretty much no one would see it as anything but satire. Additionally, the Hustler case was not the sort of statement that would expose a private fact about Falwell that has been known to cause the person to become a victim of violence.
I don't think that this girl should be charged (based on the facts presented), but I also don't think that its anywhere close to the same thing as Hustler v. Falwell.
But to misrepresent what somebody said on a thread is kind of silly, don't you think? Anybody who wants to see what I really said can scroll up and read it. Then you look like an idiot.
Strength of habit.
One of the things I said was that for the most part,kids aren't going to be sitting in jail. That leaves room for exceptions.
The other is that it is a bad idea.
Oh, yeah. I've also said I predicted this as an outcome of hate crimes law.
Really Richard there are your words. You may regret that you wrote them but to say that I misrepresented them is projection.
Since you ignored what the original article said and then went off on a tangent about what you thought the article said, then you look like an idiot.
I never said I approved of it.
Get a life.
From the actual article:
Looks a little more serious than that. I certainly didn’t have 13 contacts with the police at that age and her juvenile record couple with a mother who is apparently oblivious to what’s going on with her daughter (eight in the last year when she supposedly “had not been a problem”?) probably sent off a few warning bells with the authorities. IMO this may not be so much a case of someone being unfairly singled out because they committed a “hate crime” as it is a judge who doesn’t want to send this kid back to an environment that is more likely than not going to send her right back into his court.
Here's how the speaker in that case described his contact with the ACLU:
As somebody said, the chapters have a good deal of autonomy so we shouldn't blame the national or the entire organization for the actions of a single chapter.
If the ACLU were living up to its public relations, we wouldn't be pointing with pride to an exception. Mr. Asch wouldn't have to run a list.
I suppose if this girl had been a 22 year old with 13 previous violent criminal convictions, and a judge refused to grant bail, this would be this week's liberal cause celebre. But because this apparently rather messed up girl had unpleasant things to say about homosexuals--well, that's special.