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Ian Miles Cheong asks if Governor DeSantis made anti-Semitic statements illegal

Cards on the table, this author likes Governor DeSantis in general. But truth is truth and the First Amendment is more important than any politician. Furthermore, bad laws can be repealed or rewritten—but that can only happen if someone is willing to criticize those laws.

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This morning, Ian Miles Cheong asked this question:

Eventually, he admitted he was playing a bit of a game:

The problem is that, well, his analysis shows he doesn’t know much about the law in general:

The full text of the tweet says:

While it’s fun playing devil’s advocate against DeSantis, here’s what House Bill 269 actually states.

Contrary to the popular narrative that the bill prohibits antisemitism (much as the anti-grooming legislation was dubbed the ‘don’t say gay’ bill by the mainstream media), the legislation DeSantis signed, which was passed unanimously by the Florida state legislature, prohibits any individuals from distributing onto private property any material for the purpose of intimidating or threatening the owner. It does not specify anti-Semitism as a prerequisite, although it was most certainly the precursor to the law’s establishment due to the rise in violent incidents against Jewish people by neo-Nazis in the state who camped outside of synagogues and Jewish residences to harass and intimidate Jewish people.

The law would also apply evenly to targeted attacks against anyone of any religious or ethnic heritage, including Christians being targeted by transgender activists, Antifa, or pro-abortion activists who attack and vandalize churches.

Furthermore, the law effectively prohibits Antifa and transgender activists from shutting down college-sanctioned debates hosted by ‘problematic’ individuals like Matt Walsh, Jordan Peterson and Michael Knowles.

Crucially, threats are not protected under the First Amendment. The bill merely enhances punishments against people who would violate the law on the basis of religion and race.

The law does the following:

– Prohibiting a person from intentionally dumping litter onto private property for the purpose of intimidating or threatening the owner, resident, or invitee of such property;

– Prohibiting a person from willfully and maliciously harassing, threatening, or intimidating another person based on the person’s wearing or displaying of any indicia relating to any religious or ethnic heritage;

– Creating a new prohibition against displaying or projecting, using any medium, an image onto a building, structure, or other property without the written consent of the owner of the building, structure, or property;

– Creating a new trespass offense if a person who is not authorized, licensed, or invited willfully enters the campus of a state college or university for the purpose of threatening or intimidating another person, and is warned by the institution to depart and refuses to do so; and

– Prohibiting a person from willfully and maliciously interrupting or disturbing any assembly of people met for the purpose of acknowledging the death of an individual.

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The Tweet attaches part of the text of the bill that was signed—in fact, he is highlighting introductory language that has no legal effect. The full text was provided by this Tweeter:

In all frankness, Mr. Weinstein didn’t quite understand the law, nor did this Tweeter. We don’t say this to put anyone down, but truth is truth:

So, let’s cut through mistakes. First, Mr. Cheong says that the law

[p]rohibit[s] a person from willfully and maliciously harassing, threatening, or intimidating another person based on the person’s wearing or displaying of any indicia relating to any religious or ethnic heritage;

He thinks this is fine under the Constitution but actually this law violates the First Amendment. One thing to understand is that even if the speech in question is not constitutionally protected, a law can still violate the Constitution if it engages in viewpoint discrimination. That was the major point of RAV v. St. Paul, 505 U.S. 377 (1992) where the law prohibited ‘fighting words’ if it angered people ‘on the basis of race, color, creed, religion.’ As Justice Scalia wrote, ‘fighting words’ can be prohibited under the Constitution, but the problem is that not all fighting words were treated equally by the city of St. Paul:

In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words— odious racial epithets, for example—would be prohibited to proponents of all views. But ‘fighting words’ that do not themselves invoke race, color, creed, religion, or gender— aspersions upon a person’s mother, for example—would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers’ opponents. One could hold up a sign saying, for example, that all ‘anti-Catholic bigots’ are misbegotten; but not that all ‘papists’ are, for that would insult and provoke violence ‘on the basis of religion.’ St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.

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Therefore the Supreme Court struck that law down. Applied here, that part of the statute would seem to be very clearly unconstitutional under RAV. And while Mr. Cheong is correct to say the statue

[c]reat[es]  a new prohibition against displaying or projecting, using any medium, an image onto a building, structure, or other property without the written consent of the owner of the building, structure, or property[]

He doesn’t seem to see the First Amendment problem. For instance, one might violate the statute by putting a cut out of a manger scene in your living room window and then leaving the lights on at night, casting a shadow onto your neighbor’s house. But that is nothing more than expressing your own views, and incidentally casting a shadow on your neighbor’s property.

Naturally, that provision was in response to incidents such as this:

As though Mr. DeSantis has the ability to control what people think.

We believe this can be properly seen as a form of trespass, and can be properly prohibited under the First Amendment, but the language of the statute needs to be tightened up so that a person who creates a display on their property that merely incidentally casts shadows on another person’s property isn’t dragged into court on criminal charges.

Mr. Cheong also is right to say that the law

[c]reat[es] a new trespass offense if a person who is not authorized, licensed, or invited willfully enters the campus of a state college or university for the purpose of threatening or intimidating another person, and is warned by the institution to depart and refuses to do so[.]

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However, he missed the First Amendment problem: It enables viewpoint discrimination. It is triggered only if the institution tells the person to leave. Imagine if both Dylan Mulvaney and Matt Walsh are invited to speak at a University in different weeks on the subject of transgender ideology, Mr. Mulvaney being in favor of it, and Mr. Walsh being opposed. Let us say hypothetically that both are subjected to threats while on campus. However, let’s imagine that only the people threatening Mr. Mulvaney were asked to leave, while the people threatening Mr. Walsh were not. Then effectively Mr. Walsh could be threatened and even driven off campus, and thus unable to present his views, without any crime being committed under this law. That’s how the law enables viewpoint discrimination.

We are pretty sure everyone we have quoted, including Mr. Cheong, is trying their best to honestly discuss the law, but, frankly, they appeared to be out of their depth.

As for this partly unconstitutional statute, what is going on here?

In the case of the projection issue, we think everyone involved just didn’t see the issue. As we said, a tighter law could probably deal with what we think is rightfully considered a trespass, while not penalizing people who put up displays that causes incidental projection onto another person’s property. The same can be said about the campus disruption and indeed that law can be fixed by taking out the requirement that one be asked to leave—just punish everyone who enters a campus in order to intimidate or threaten another.

As for the religious/ethnic harassment, it is so clearly contrary to one of the more famous precedents of the Supreme Court that we have to think something else is going on. We are not going to research the background of every person who voted for the bill, but Mr. DeSantis did sign it…

…and he went to Harvard Law School, so we assume he knows better.

There are two reasons why a politician might make a law contrary to such Supreme Court precedent. Sometimes it is to challenge that precedent. That was the explicit purpose of many of the more restrictive laws on abortion, such as the one challenged in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) which held there was no constitutional right to an abortion. And we believe that is why Florida recently passed a law calling for the execution of child rapists:

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The Supreme Court has clearly stated that they believed that it is unconstitutional for a state to execute a child rapist who doesn’t kill the victim, and its hard to believe that Florida (and Mr. DeSantis) didn’t make this law specifically hoping to overturn that precedent—and, hopefully, that effort will be successful.

The other purpose in passing a law that clearly contradicts Supreme Court precedent is more cynical. Sometimes it seems that politicians pass a law knowing it will be struck down, so they can pretend they tried their best and ‘darn it, the courts stopped us!’ Or to be more sympathetic to Mr. DeSantis, maybe he didn’t want someone to run a deceptive ad saying he vetoed a law prohibiting religious harassment, even though it was clearly unconstitutional.

You can evaluate for yourself, dear reader, why Mr. DeSantis signed this law that seems to be destined to be struck down, in part—and rightfully so.

Further, none of this should be evaluated in a vacuum. Trump for his part, is no great defender of the First Amendment:

Yes, it’s coming from the ACLU, but for once they are right.

And nearly every Democrat (including Joe Biden) is even worse on the First Amendment:

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The cut off text reads:

Hillary said she was a victim of that decision and wanted to overturn it. And she was one supreme court appointment away from getting her way.

It was not about campaign finance. It was about freedom of expression. From the opinion [see the picture].

Of course, by electing Trump, the Democratic party missed their golden opportunity to subvert the First Amendment by ordinary judicial appointments. Trump may not be a great advocate of freedom of speech, but his election in 2016 probably saved the First Amendment by his judicial appointments.

But the Democrats have another plan to accomplish their goal:

It is another reason why Warren’s court-packing threats are so dangerous.

***

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