Charles Haynes, one of the foremost First Amendment scholars in the country, has an article debunking the vastly exaggerated claims from the religious right that new hate crimes legislation will lead to people being arrested merely for speaking out against homosexuality.
Of the various arguments advanced by some social conservatives against the bill, the one that has gotten the most traction with the public is the charge that the legislation would “criminalize preaching the Gospel and put preachers in the crosshairs,” in the words of a letter sent to senators by 60 conservative leaders in June.
And his perfectly reasonable answer:
To illustrate their fears, religious conservatives cite cases in Europe and Canada where a few pastors have been prosecuted in recent years for “hate speech” after they spoke out against homosexuality. These prosecutions are indeed insidious attacks on free speech and free exercise of religion – but they all occurred in countries without a First Amendment.
In my view, it can’t happen here. Americans have, after all, lived under hate-crimes laws, federal and state, for decades – and some of the state laws already include sexual orientation. In all that time, religious leaders of various stripes have preached controversial beliefs about race, religion and national origin without ever being charged with a hate crime based on the content of their speech.
Thanks to the First Amendment, we enjoy the strongest protection for free expression in the world. In a society where even white supremacists, anti-Semites and anti-gay hatemongers like the Rev. Fred Phelps are free to speak, local pastors need not worry about being prosecuted for preaching the Gospel as they understand it.
But just to be certain that the legislation will not be misused, sponsors of the hate-crimes bill have added language to ensure that “nothing in the Act shall be construed to prohibit any constitutionally protected speech.” Further, “nothing in this Act shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating of espousing such beliefs.”
The only speech affected by this bill is speech that has no constitutional protection now, such as speech that directs people to commit violence, in a manner likely to incite imminent lawless action. Bias-motivated acts of violence are the target of this legislation, not speech protected by the First Amendment.
The framers of this bill went way out of their way to ensure that the bill cannot be used to punish what would otherwise be constitutionally-protected speech. It still wasn’t enough for the religious right. Why? Because they are engaged in demagoguery, not serious debate. Their goal is not to enlighten, it is to frighten — because scaring people is the best way to open their wallets.