The House of Representatives in Michigan has approved a new law that raises concerns about whether speech that causes emotional distress to others can be criminalized. This has sparked a debate about the limits of free speech and how it’s protected under the First Amendment.
Throughout history, the Supreme Court has established guidelines to determine the limits of protected speech. The concept of “Fighting Words” was initially introduced in the Beauharnais v. Illinois case (1942). It refers to utterances that inflict harm or incite immediate violence, lacking any significant social value or contribution to the pursuit of truth.
Over time, subsequent cases further clarified the protection of speech.
In Terminiello v. Chicago (1949), the court emphasized that speech should only be restricted if it poses a clear and present danger that surpasses public inconvenience or unrest. Brandenburg v. Ohio (1969) reinforced this principle, stating that speech advocating the use of force or law violation can only be prohibited if it incites imminent lawless action.
In a notable case called Virginia v. Black (2003), the court examined cross-burning as an act of intimidation. It ruled that while cross-burning itself may be protected if it is intended to instill fear of physical harm, it loses its constitutional protection.
Snyder v. Phelps (2011) involved a controversial situation where individuals from the Westborough “Church” picketed at funerals, directing hateful messages toward deceased soldiers. Despite the emotional harm inflicted on the victims’ families, the court considered it protected speech due to the lack of direct incitement to violence.
The Matal v. Tam case (2017) dealt with “commercial speech,” where the court declared that speech could not be prohibited solely based on the offense it may cause.
Moreover, criminal statutes related to speech face a rigorous evaluation known as “strict scrutiny.” This standard allows little room for survival if a law is ambiguous or open to interpretation. When a case is reviewed by the Supreme Court using strict scrutiny, it is unlikely that the law in question will remain in place.
Turning to Michigan, the state’s House has passed HB 4474, a proposed law that would criminalize speech causing “severe mental anguish” to others. Critics argue that this standard is excessively subjective and lacks clarity. Despite using the “reasonable person” standard, it still gives prosecutorial discretion to criminalize speech solely based on the subjective emotional impact experienced by individuals.
Legal experts have raised concerns about the vagueness and subjectivity of the proposed law. The focus on the victim’s feelings rather than clearly defined criminal acts leads to an ambiguous and subjective standard.
Those who unintentionally hurt someone’s feelings by refusing to use preferred pronouns may face charges under this law.
The penalties include prison time or participation in a “diversion” program, which aims to educate offenders about the impact of their actions on the victim and the community. However, critics argue that this resembles a form of Orwellian re-education rather than a fair response to wrong speech.
If the Senate approves the legislation and Governor Gretchen Whitmer signs it into law, it is expected to undergo constitutional review. The troubling aspect is that some critics perceive the Democrats’ support for this legislation as an infringement on speech they find disagreeable, disregarding the importance of protecting free expression.