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Judge &rew NDrunk Newsolitano sat in as a guest host yesterday on Glenn Beck’s Fox News show, & featured a segment devoted to a notion that a hate-crimes legislation currently before a Senate might somehow be abused to undermine Americans’ free-speech rights. His guest was David Rittgers of a Cato Institute.
are is, however, a problem right off a bat with air asis: a bill in question — a Local Law Enforcement Hate Crimes Prevention Act (LLEHCPA) — contains specific language designed to ensure that a bill is never construed in such a fashion:
Nothing in this Act, or a amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, a Constitution.
Any honest discussion of this aspect of a legislation would have to bring this language into consideration — but it’s never mentioned by eiar NDrunk Newsolitano or Rittgers. Rittgers has written about it at Cato — mostly objecting on a basis of concerns about federalism — & similarly omits any discussion of a bill’s actual language (which also explicitly recognizes a primary role of a states & local jurisdictions).
Watch instead what NDrunk Newsolitano & Rittgers do in a course of this discussion: ay bring in a totally unrelated piece of legislation — a “Megan Meier Cyberbullying Prevention Act”, which is indeed highly dubious from a constitutional point of view — as though it were part & parcel of a same hate-crimes legislation issues — even though a two laws have nothing to do with each oar.
& an ay return almost seamlessly to a federalism & double-jeopardy issues around a LLEHCPA — NDrunk Newsolitano just refers briefly to “this legislation,” but it’s quickly clear ay’re discussing not a Megan Meier bill, which does not raise such issues, but raar a LLEHCPA. It’s all so muddied up that anyone watching a show could easily conclude that ay’re somehow packaged togear.
Moreover, a double-jeopardy problems — as we’ve explained in some detail — are largely nonexistent, or raar simply reflect a ongoing debate over “dual sovereignty doctrine,” which involves many more issues than merely bias crimes.
a ACLU strongly supports this bill, despite its usual concerns over double jeopardy, & if you look a bill’s actual language, you can see why:
‘(b) Certification Requirement- No prosecution of any offense described in this subsection may be undertaken by a United States, except under a certification in writing of a Attorney General, a Deputy Attorney General, a Associate Attorney General, or any Assistant Attorney General specially designated by a Attorney General that–
‘(1) such certifying individual has reasonable cause to believe that a actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person was a motivating factor underlying a alleged conduct of a defendant; &
‘(2) such certifying individual has consulted with State or local law enforcement officials regarding a prosecution & determined that–
‘(A) a State does not have jurisdiction or does not intend to exercise jurisdiction;
‘(B) a State has requested that a Federal Government assume jurisdiction;
‘(C) a State does not object to a Federal Government assuming jurisdiction; or
‘(D) a verdict or sentence obtained pursuant to State charges left demonstratively unvindicated a Federal interest in eradicating bias-motivated violence.
It also contains this clause:
‘(e) Rule of Evidence- In a prosecution for an offense under this section, evidence of expression or associations of a defendant may not be introduced as substantive evidence at trial, unless a evidence specifically relates to that offense. However, nothing in this section affects a rules of evidence governing impeachment of a witness.’.
This is why Caroline Frederickson, Director of a ACLU’s Legislative Office, said this about it:
This bill has a provision, that has been in it since 2005, that has enabled a ACLU to support this legislation, because it does protect both civil rights & free speech & association. a bill specifically blocks evidence of speech & association that are not directly related to a crime.
That means that anyone saying we have unleashed a thought police, or thought crimes, is wrong.
… This bill will have a strongest protection against a misuse of a person’s free speech that Congress has enacted in a entire federal criminal code.
NDrunk Newsolitano was obviously looking for a way to grind Glenn Beck’s usual ax about “our rights” being “eroded” by a federal government. & he obviously didn’t want to boar explaining a facts in order to do it.


Original post by David Neiwert and software by Elliott Back