On May 3, the House voted to pass the Local Law Enforcement Hate Crimes Prevention Act of 2007. The Senate will take up a companion bill, known as the Matthew Shepard Act, when it returns from its summer recess. If enacted, this law would authorize the Justice Department, in certain narrowly defined circumstances, to criminally prosecute an individual who “willfully” causes bodily injury to another person or “through the use of fire, a firearm or an explosive . . . attempts to cause bodily injury” to another person because of that person’s race, color, religion, national origin, gender, sexual orientation, gender identity or disability.
A coalition of conservative African American pastors has aggressively lobbied against this legislation on the premise that it would make it unlawful for them to preach that homosexuality is a sin. Bishop Harry R. Jackson Jr., pastor of the Hope Christian Church in College Park, Md., for example, has asserted that the act would “keep the church from preaching the Gospel.”
This objection to the legislation is fanciful. To begin with, there is no doubt of the act’s constitutionality. In 1993, the Supreme Court unanimously upheld a virtually identical state law in Wisconsin vs. Mitchell. The court made clear that “a physical assault is not by any stretch of the imagination expressive conduct protected by the 1st Amendment.” Moreover, the court emphasized that the government has a perfectly legitimate interest in punishing “bias-motivated crimes” because such crimes are especially likely to inflict emotional harm on their victims, incite community unrest and provoke retaliatory violence.
Of course, the pastors do not intend to assault anyone physically. Their claim, rather, is that they could be prosecuted merely for preaching against homosexuality. They fear that such sermonizing might be transmogrified by the law into an attempt to incite members of their congregations to lynch gays because of their sexual orientation.
For at least three reasons, this argument is completely unfounded. First, the Matthew Shepard Act would not prohibit “attempts to incite.” It would prohibit only the infliction of bodily harm and attempts to cause bodily harm. The latter refers to firing a gun and missing, not giving a sermon.
Second, it is settled 1st Amendment law that an individual cannot constitutionally be punished for attempting to incite others to commit crimes unless the speaker expressly incites unlawful conduct and such conduct is likely to occur imminently. The last time the Supreme Court upheld a criminal conviction for incitement was more than half a century ago, in the case of Dennis vs. U.S., and that involved incitement to violent overthrow of the government. Unless the pastors intend to expressly incite wild-eyed mobs to beat up gays because of their sexual orientation, they are in no danger from this law.
Third, the legislation expressly provides that “nothing in this act . . . shall be construed to prohibit any expressive conduct protected” by the 1st Amendment. In other words -- indeed, in the most explicit words possible -- the act could not be applied to the pastors unless their sermons are unprotected by the 1st Amendment, a concept that is impossible to imagine.
The 1st Amendment protects the right of Nazis to march in Skokie, the right of racists to assert that blacks are inferior, the right of atheists to denounce Christianity and the right of homophobes to condemn homosexuality. The argument of the pastors that the proposed legislation in any way threatens their right to preach their version of the Gospel is, to be frank, ridiculous.
There might be rational reasons to question the wisdom of this legislation. But the argument that it endangers the 1st Amendment rights of these pastors is certainly not one of them.
Geoffrey R. Stone, a University of Chicago law professor, is the author of “Perilous Times: Free Speech in Wartime, from the Sedition Act of 1798 to the War on Terrorism,” winner of the 2004 Los Angeles Times Book Award.