It's not just prosecution of a hate crime, one of the girls was *denied bail*, the other placed on house arrest after the arraignment hearing...

http://blogcritics.org/archives/2007/05/24/133000.php

Antares79: Criminal libel laws are likely still constitutional. [UPDATE: D'oh! When I first wrote this, I inadvertently said "unconstitutional" -- what a difference two letters make. Thanks to Antares79's post below for correcting me on this. -EV] But:

(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.

Every time I see the old "resisting arrest" tacked on to a questionable criminal charge, I really smell a rat.

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.

How would a prosecutor or civil plaintiff prove that "God hates fags" is objectively false?

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?

Freedom of offensive speech. Homosexuality. Pick one.

That's possibly the silliest comment I've ever seen uttered without an emoticon.

Since when is Libel a felony. This non-lawyer thought it was a civil matter

Would we say "Freedom of anti-Christian speech. Christianity. Pick one."?

Would we say "Freedom of anti-Christian speech. Christianity. Pick one."?

No, because distributing anti-Christian material won't get you arrested and charged with a felony.

Locking up teenage girls for offensive religious opinions. That's where the Left in 2007 is leading us.

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.

"Criminal libel laws are likely still unconstitutional."

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?

I'd think the ACLU would be all over this (despite the views sometimes expressed by commenters here that the ACLU won't work with anti-gay defendants). There's no reference to them in the story; does anyone know if they're involved in the case, or considering it?

Yikes - I am sorely missing something. Can someone give me the cite to the case(s) holding/stating a criminal libel law unconstitutional?

Louisianna appears to have a criminal defamation law:
http://www.legis.state.la.us/lss/lss.asp?doc=78544

It is unconstitutional?

Not very likely. About 20 states still have criminal libels statutes on the books (including my state of Idaho). They aren't enforced very often, and some of the examples that I have seen smell of abuse of power.

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.

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.

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.

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.

So this felony charge didn't happen? Pastor Green wasn't sentenced to a month in jail for preaching against homosexuality? The street preacher in Britain who was attacked by a mob--and then prosecuted for inciting them didn't happen?

Specific organizations are abstractions that, in fact, represent groups of people.

And I suspect that a libel suit on behalf of a specific organization would be allowed, because yes, it represents 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.

I didn't say that I approved of them--just they are Constitutional.

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."

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"?

Would we say "Freedom of anti-Christian speech. Christianity. Pick one."?

No, because distributing anti-Christian material won't get you arrested and charged with a felony.

But it might get you tenure!

I'm a little confused — isn't the strict protection offered by the First Amendment an American device only? It would seem easy to cherry-pick examples from other countries who don't have the same freedom of speech as inhabitants of the US.

Since this "crime" occurred in Illinois, it seems misleading to compare it to cases outside the US.

I'm a little confused — isn't the strict protection offered by the First Amendment an American device only? It would seem easy to cherry-pick examples from other countries who don't have the same freedom of speech as inhabitants of the US.

Since this "crime" occurred in Illinois, it seems misleading to compare it to cases outside the US.

I would like to think that the girls will win this on appeal, although I would not be sure of it. My point in citing the experience of other countries is that they are a bit farther down the path to the sort of society that homosexuals want America to be. Why do you think Supreme Court justices keep using opinions from foreign courts to decide what the U.S. Constitution means?

Since this "crime" occurred in Illinois, it seems misleading to compare it to cases outside the US.

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?

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.

In another thread, someone argued that allowing police (who had a warrant) to search a home without the consent of the homeowner showed what we had "become" as a society. Now we have someone arguing that group libel means that freedom of speech "no longer" exists. What is it with people whose worldviews are so narrow that they think that if they didn't know about something, it must be a recent development?

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.

That's right, Clayton. The gays are clearly conspiring with the illegal aliens, al-Qaeda, and the New York Times to take your guns away and throw you in jail. Thank God you're here to warn us about it.

Clayton Cramer, and I think it is a quite accurate characterization, will beat his dead hobby horse 'though the carrion spurts from the quirt.

That said, with the addition of one word, which I will italicize; his statement:

"

Freedom of offensive speech. Content homosexuality. Pick one."

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

Joseph Slater writes:

So, Clayton, your "number of examples" of anti-gay speech being treated as a crime come down to this case and a case in Sweden. Two, I guess, is a number, but still not what I would call a significant trend.

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?

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.

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.

It ssems to that curiously, violation of the fundamental and universal rights to free speech mean nothing to some posters if the infringements do not happen in the US.

What a regrettably Ameri-centric and illiberal viewpoint.

Yours, TDP, ml, msl, &pfpp

Why do you think Supreme Court justices keep using opinions from foreign courts to decide what the U.S. Constitution means?

Oh, we know the answer to that. It's part of their subversive pro-homosexuality agenda.

Why would anyone think that? Oh, wait, because one of the decisions where they relied on foreign court decisions to interpret the U.S. Constitution was....Lawrence v. Texas (2003), striking down Texas's silly homosexual sodomy law.

Thanks for the nice setup.

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.

You might want to talk to the very tiny minority of gays who like to use the government (with either criminal charges or antidiscrimination laws, such as the Seattle print shop). They seem to be having way more influence than the reasonable gays that you are talking about.

Let's see some evidence of it. So far, all the evidence that I am seeing is that homosexuals won't tolerate a difference of opinion, to the point where you can be criminally prosecuted for a mere statement of opinion.

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.

But if God is everywhere, isn't he subject to universal jurisdiction? It's just that serving the subpoena is difficult.

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....)

How big a deal is this, really?

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.)

It will be interesting when the first

"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.

Thorley Winston wrote at 5.24.2007 3:12pm:

[quoting John Herbison at 5.24.2007 2:48pm]

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.

If that were true falsely accusing someone of being a drunkard wouldn’t ever be actionable as defamation.

Perhaps John Herbison intended to write libel per se (a term of art) instead of defamatory. Falsely stating that plaintiff has committed a crime is libel per se at common law and in some statutes, meaning that punitive damages can be assessed even if actual damages are not pleaded and proved. Some typical triggers are criminal status, suffering a loathsome disease, unchastity in women, and sometimes a catchall along the lines of "other statements that would of themselves bring disrepute".

Clayton E. Cramer wrote at 5.24.2007 3:21pm:

1. Truth is an affirmative defense in libel law in many states (all states?) I know that California law, at least at one time, made libel the only case where the jury was to be both trier of facts and decider of law--a little leftover from the Zenger case.

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:

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.

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.

Clayton Cramer wrote:

So far, all the evidence that I am seeing is that homosexuals won't tolerate a difference of opinion, to the point where you can be criminally prosecuted for a mere statement of opinion.

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.

There was a case during the Reagan Administration whereby a messenger biker entered the DOJ building to deliver a package while wearing a t-shirt that said, "Experts Agree! Meese is a pig!" (Ed Meese was the AG at the time).


True, that was some time ago, but it's evidence that right-wingers can be just as intolerant as left wingers.

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..

JosephSlater wrote at 5.24.2007 4:15pm:

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."

I beg to differ. I think that idiotarian activists are behind those things. If they weren't activists, they wouldn't be so intent on demonstrating their idiocy in public.

From the OpinionJournal.com article:

The ACLU was even AWOL in one of the most visible and frightening free-speech controversies in recent years--the Muhammad cartoons, which many condemned as "hate speech." When Muslim groups violently protested the cartoons (first published in the Danish press), when American newspapers declined to publish them for fear of reprisals, and when the U.S. State Department condemned their publication--the ACLU exercised its right to remain silent.

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.

Fub:

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.

I don't know that the problem here is so much Illinois' hate crime statute—I think it's Illinois' disorderly conduct statute.

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:

(a) A person commits disorderly conduct when he knowingly:
(1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace

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.

Clayton, your link is about a Pride celebration in 2003 and comes from a Christian newspaper. Not exactly unbiased journalism.

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:

men dressed like women

made me think, "gosh, I haven't been to a Pride celebration with a drag contingent in years!"

But still,

The daylong event featured various activities, including the sale of pornographic materials, public nudity, men dressed like women and obscene language over a public address system.

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.

I expect that prosecutions like this will happen with more frequency in the future. Hate Crime laws enhancing sentencing are easily morphed into Hate Crime laws punishing speech, but only against protected classes of course. They don't need to even go through the moronic process of passing a new law, because the Judges will force it upon all of us by permitting these kinds of prosecutions.

If there is something wrong with ACLU policy in this area, perhaps Kaminer's criticism will help correct it.

If? Perhaps? Oh brother...

I'll be blunt: The ACLU is evil.

Previous comments (including Philistine) claim that hate speech statutes enhance criminal acts that are otherwise on the books. For example, perpetrator A drags someone to death while using racial epithets such as “white honky” in the process. What I would like this august panel of legal experts to tell me is whether hate crime statutes are free-standing. In other words, can perpetrator A get convicted of a hate crime while dragging a dummy while using racial epithets such as “white honky?” Do the hate crime statues as written require an antecedent crime before they are triggered.,

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.

Correction:

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.

Philistine,

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.

Though I don't agree with hate crime legislation in the first place, I find the addition of disorderly conduct as a predicate offense esp. questionable. Essentially, the Ill. legislature has declared that pretty much anything that the cops don't like, if done accompanied by some sort of politically incorrect language, etc., is a felony.

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.

Well, as the resident gay man, I can tell you that I think that this particular incident is silly. The answer to bad speech is more speech, not a jail term.

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.

Brian G: Why wonder? Google site:volokh.com "dale carpenter" "hate crime" and find out.

ReaderY:
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.

Smokeandashes. Jeez. As I keep saying, lying about what somebody said might be a carryover from the practice of law--if you're a lawyer--or from some other pathology.
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.

Smokeandashes. I said that because that's what's going to happen. Is happening.

I never said I approved of it.

Get a life.

Eugene Volokh wrote:

By the way, just to make it clear, it may well be that some ACLU chapters don't adequately defend anti-gay speech. But some do defend it; it shouldn't be surprising either that an ACLU chapter would sit out such a case (even if expressly asked to participate, which may not have happened here), or that an ACLU chapter would get involved in it on the pro-speech-protection side. Thanks to Allen Asch's The ACLU Fights for Christians page for the pointers.

Youre very welcome :-) And, for one recent example of the ACLU representing conservative, "anti-gay" speech, see: My Battle with the Thought Police

Here's how the speaker in that case described his contact with the ACLU:

I was put in contact with the ACLU Nevada, and though our political views are poles apart, the ACLU to its eternal credit was principled enough to take on my "rightist" professor's case.

Youre very welcome :-) And, for one recent example of the ACLU representing conservative, "anti-gay" speech, see: My Battle with the Thought Police

And the article does a good job demonstrating how homosexuals will stop at nothing to suppress opinions that they don't like:

Upon this the student filed a "formal" complaint. I had not taken his feelings seriously. He felt "hurt again;" and as he had learned from the commissar, feeling bad twice constituted a "hostile learning environment" (an offense that is not defined in the university by-laws). From then on the commissar made the student's case his own. Every pretence of acting as a neutral mediator was abandoned, and he became a prosecutor.

In April I was ordered to appear before an administrative committee assembled by the commissar and to prove my statement. This was in clear violation of university rules: not only is there no provision for any "truth squad," but as bureaucrats the committee members were entirely unqualified for such a task.

However, I naïvely provided the requested evidence. My request to have the meeting taped was denied. During the hearing, which was conducted in a style reminiscent of the interrogations of politically suspect academics in communist countries or Nazi Germany, essentially only the commissar spoke.

My repeated request to hear witnesses was denied. One student, recommended by the complainant, was later secretly interviewed, but because her testimony contradicted what the commissar wanted to hear, it was suppressed. Furthermore, in his indictment, which I would not see until November, the commissar referred to a previous unrelated student complaint, but he suppressed the information that this complaint had been dismissed as without merit and actually resulted in an embarrassment for the university administration.

The provided evidence was brushed aside, because some of it had also allegedly appeared on anti-gay sites which I had never visited. Indeed, whatever I or anyone else said was irrelevant because the commissar had already found "proof" of my hostility in my writing.

Clayton keeps giving people opportunities to prove him right. They can't help themselves.

"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."

I also wonder ... if a federal district court judge (1) points at a disabled autistic person and excitedly utters "Are you blind?", and/or (2) blogs the disabled autistic person under a blog ID "whit" and says she is like a turing machine set on verbose mode maximum ...

is this a hate crime? are they fighting words? is it protected First Amendment Speech?

Now, what if the district court judge has also entered and order resulting in the inhumane euthanisia of another disabled person by not providing her auxiliary aids and services to express her own wishes (pattern recognition software)?

Then, when the issue is raised that the district court judge has discriminated by reason of disability, and the district court judge makes charges of defamation for the victim uttering the words 'discrimination,' who has the burden of proving truth/falsity?

"How does one libel a group?"

I would think pointing and excitedly uttering "Are you blind?" and/or "a turing machine set on verbose mode maximum" does, indeed, libel (1) all blind/vision impaired people, and/or (2) all people with autism and/or aspergers, respectively.

It is also extremely inappropriate.