Rep. Sheila Jackson Lee, D-Texas, introduced a bill in the House last week aimed at curbing "white supremacy" and hate crimes, but there is also concern it would violate the First Amendment.
The Leading Against White Supremacy Act of 2023 seeks to "prevent and prosecute white supremacy inspired hate crime and conspiracy to commit white supremacy inspired hate crime."
People who use hate speech online could face criminal charges under the proposed legislation even if they don't act on their threats.
According to George Washington University Law Professor Jonathan Turley, "It is a criminal hate speech law that would violate core principles of the First Amendment."
"It makes clear that the accused does not actually have to support or conspire in a crime," Turley wrote in a Tuesday blog post. "This is so flagrantly unconstitutional on so many levels from free speech to vagueness that it is actually impressive."
According to the bill's text, a "conspiracy to engage in white supremacy inspired hate crime shall be determined to exist between two or more persons at least one of whom published material advancing white supremacy, white supremacist ideology, antagonism based on 'replacement theory,' or hate speech that vilifies or is otherwise directed against any non-White person or group."
A posted message would satisfy the statute if it is "published on a social media platform or by other means of publication with the likelihood that it would be viewed by persons who are predisposed to engaging in any action in furtherance of a white supremacy inspired hate crime or who are susceptible to being encouraged to engage in actions in furtherance of a white supremacy inspired hate crime."
"How would a reasonable person discern a predisposition to engage in White supremacy?" Turley asked in his blog post, comparing it to Supreme Court Justice Potter Stewart's 1964 test for pornography, in which he could not provide a clear definition and instead said, "I know it when I see it."
The bill also states that there has been a rise in "mass shootings and other hate crimes motivated by white supremacy."
"These heinous and virulent crimes are inspired by conspiracy theories, blatant bigotry and mythical falsehoods such as 'replacement theory,'" it reads. "All instances must be prevented and severe criminal penalties must be applied to their perpetrators."
In a mass shooting last May, a 19-year-old gunman fatally shot 10 people in a Buffalo supermarket located in a neighborhood that he targeted for its predominantly Black demographics.
Prosecutors said that the teen posted a racist manifesto online before the attack saying he cared "for the future of the white race."
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