1 November 16, 2009 Attorney General Eric Holder United by ltq93779


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www.LC.org                                                                           liberty@LC.org

                                          Reply to: Virginia

                                              November 16, 2009

Attorney General Eric Holder
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
(202) 353-1555

       Re: Federal Hate Crimes Legislation

Dear Attorney General Holder:

        Liberty Counsel is a non-profit litigation, education and policy organization with offices
in Florida, Virginia, Texas and Washington, D.C., and hundreds of affiliate attorneys across the
nation. As an organization that defends the Constitution, and particularly individuals’ rights to
free speech and free exercise of religion, we are very concerned about the passage of recent

        The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (“HCP Act”) that
was passed by Congress on October 22, 2009, and signed into law by President Obama on
October 28, 2009, is, in our opinion, unconstitutional. Not only does Congress not have the
authority to pass such a law under the guise of the Commerce Clause, but the HCP Act
implicates First Amendment rights as well.

        Congress does not have the authority to enact legislation creating specific penalties for
violent crimes when those crimes are not related to economic activity and did not substantially
affect interstate commerce. In United States v. Morrison, 529 U.S. 598, 608-610 (2000), the
United State Supreme Court struck down the Violence Against Women Act (“VAW Act”) on the
basis that such local legislation that had no significant impact on commerce was beyond the
authority of Congress. The statute in Morrison is analogous to the alleged rationale behind the
HCP Act, namely that violence motivated by a characteristic of the victim should result in
greater penalties against the perpetrator of the violence.

        The stated Congressional findings in the VAW Act and the HCP Act justify the authority
of Congress to pass the Acts by stating that such alleged crimes affect interstate commerce. As
there was no credible evidence that proved violence against women affected interstate commerce
in the VAW Act, there is no credible evidence that any of the categories, particularly those
involving “sexual orientation” and “gender identity” have any affect on interstate commerce.
There is no constitutional or factual distinction between the VAW Act and the HCP Act. Had the
Supreme Court upheld the VAW Act, Congress would have unfettered power to regulate all
violent crime and any activities that might lead to violent crime, a proposition soundly rejected
by the Supreme Court. Morrison, 529 U.S. at 612-13.

        Congress’ power to regulate is not unlimited. Congress may not rely upon the Commerce
Clause to regulate matters unrelated to commerce. Morrison, 529 U.S. at 613. In Morrison, the
Court concluded that “[g]ender-motivated crimes of violence are not, in any sense of the phrase,
economic activity, [and] thus far in our Nation’s history our cases have upheld Commerce
Clause regulation of intrastate activity only where that activity is economic in nature.” Morrison,
529 U.S. at 613. Simply changing the motivation of the crimes of violence to include “sexual
orientation” or “gender identity” rather than just gender creates no greater interface between
violence and commerce than existed with the VAW Act. Accordingly, the Court will find that
the HCP Act suffers from the same constitutional defect as the VAW Act.

        The Court also disfavors use of the Fourteenth Amendment in defending legislation that
is aimed at individuals rather than government actors. Morrison, 529 U.S. at 626. Therefore, like
the VAW Act, the HCP Act cannot be saved by Section 5 of the Fourteenth Amendment.
Morrison, 529 U.S. at 626. The Court in Morrison stated “the language and purpose of the
Fourteenth Amendment place certain limitations on the manner in which Congress may attack
discriminatory conduct.” Morrison, 529 U.S. at 620. For example, a remedy is not permissible
under Section 5 of the Fourteenth Amendment if it “is simply not ‘corrective in its character,
adapted to counteract and redress the operation of such prohibited state laws or proceedings of
state officers.’” Morrison, 529 U.S. at 625 (quoting Civil Rights Cases, 109 U.S. 3, 18 (1883)).
Both the HPC Act and the VAW Act are aimed “at individuals who have committed criminal
acts motivated by [] bias” having no consequence on public officials involved in investigating or
prosecuting the violence, and thus, neither law can be justified under Section 5 of the Fourteenth
Amendment. Morrison, 529 U.S. at 626.

        Just as Congress lacked the authority to enact the VAW Act, Congress also lacked the
authority to enact the HCP Act. The HCP Act is therefore unconstitutional.

      However, even if, arguendo, Congress acted within its authority in passing the HCP Act,
the HCP Act raises serious First Amendment concerns.

        Many people concerned about the reach of the HCP Act have contacted Liberty Counsel
because of concern that otherwise protected speech or the exercise of religious beliefs may be
curtailed under this new law. The subject of homosexuality and “gender identity” (a term which

is undefined in the HCP Act) is divisive. Many law-abiding citizens have strong moral and
religious-based viewpoints on these subjects. The HCP Act appears to license only one side of
the ongoing debate while threatening significant penalties for alleged violations.

        While Section 4711 of the HCP Act states that the law should not be construed to limit
free expression or the free exercise of religion if such exercise of religion, speech, expression, or
association was not intended to (1) plan or prepare for an act of physical violence, or (2) incite an
imminent act of physical violence against another, Section 4710 of the HCP Act states that courts
“may consider relevant evidence of speech, beliefs, or expressive conduct to the extent that such
evidence is offered to prove an element of a charged offense or is otherwise admissible under the
Federal Rules of Evidence.” Thus, it is obvious that speech, beliefs and expressive conduct will
be targeted under the HCP Act.

       The HCP Act is already acting as a prior restraint on the speech of many concerned, law-
abiding, citizens. Those who have contacted Liberty Counsel are concerned that there otherwise
lawful speech regarding “sexual orientation” or “gender identity,” or for that matter, their view
on marriage being the union of only one man and one woman, will result in potential liability
under the HCP Act.

        Their discomfort and fears are not unwarranted. For example, on October 10, 2004, the
Philadelphia Eleven were arrested for peacefully expressing their viewpoint that homosexuality
is morally wrong. Charged under the local ethnic intimidation law, these eleven people,
including a minor and grandmothers in their 80s, faced years in prison. While they eventually
were cleared of the charges, it was not until they suffered many sleepless nights, faced several
court appearances, and incurred the costs of legal representation. The mere threat of having to
face similar charges chills free speech.

        Liberty Counsel is constantly fighting to secure the rights of Christians throughout the
country who are told by government officials that they cannot proselytize, display Christmas
crèches and Ten Commandments monuments in the public square, or speak at their graduations
on subjects of their choosing. Liberty Counsel is familiar with the fight to secure individual
liberties and stands ready to represent individuals whose rights are infringed because of the
newly enacted HCP Act.

       Though we recognize that speech only falls under the statute when the speaker intends
the speech to incite an imminent act of physical violence, we would like to remind you that the
Supreme Court has gone so far as to state that “the mere abstract teaching [of] the moral
propriety or even moral necessity for a resort to force and violence is not the same as preparing a
group for violent action and steeling it to such action.” Brandenburg v. Ohio, 395 U.S. 444, 448
(1969) (quoting Noto v. U.S., 367 U.S. 290, 297-298 (1961)).

       Examples abound where laws similar to the HCP Act have been used to restrict speech.
For example, in Canada, a Roman Catholic Priest was fined and threatened with jail time for

speaking against homosexual behavior. 1 Accordingly in spite of the Convention of Human
Rights of the European Union, Pastor Ake Green was arrested and jailed in Sweden for
preaching that people were not born with a homosexual orientation and that homosexuality is a
choice, a belief that is shared by many. 2 While we enjoy the freedom of speech and religion
under our Constitution, these examples are chilling reminders that speech and religion must have
breathing room to function.

        Liberty Counsel recognizes that it will be a delicate task to ensure citizens of the United
States are not stripped of their freedom of speech and religion as a result of the passage of the
HCP Act. In recognition of the importance of the First Amendment and its protection of speech
and religion, Liberty Counsel asks that you institute a policy to ensure that the First Amendment
rights of individuals, especially members of the clergy and people of faith, are not unduly
infringed. These policies should require attorneys with the Department of Justice and U.S.
Attorneys to obtain the express approval of the Attorney General prior to the interrogation or
arrest of an individual that is suspected of inciting so-called “hate crimes.” The Attorney
General’s authorization should also precede the presentment of an indictment to a grand jury
against an individual or member of the clergy.

        Liberty Counsel requests that prior to the initiation of a prosecution or the service of a
subpoena to an individual who is suspected of speaking in such a way as to allegedly incite a
“hate crime,” standards be set to require attorneys to take all reasonable steps to ensure (1) a
causal connection between the alleged physical violence and the speech at issue, (2) the speech
immediately preceded said violence, and (3) the mens rea requirement of intent is present and
that credible evidence will be available to prove a guilty state of mind.

       Proving a defendant maintained a guilty mens rea will be difficult. Before initiating
prosecution or assisting with a prosecution under the HCP Act, the attorney should ensure that
the individual alleged to have evoked physical violence through speech actually intended for
such violence to occur. Additionally, individuals with the Department of Justice and U.S.
Attorneys offices should seek authorization from the Attorney General prior to issuing a
subpoena to an individual not physically involved in a “hate crime.”

        The Supreme Court has declared that “[t]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S.
347, 373 (1976). Thus, in view of the fact that the HCP Act exceeds the authority of Congress,
and that notwithstanding such constitutional flaw, the HCP Act acts as a prior restraint on
otherwise protected speech, Liberty Counsel requests that the Office of the Attorney General
take extra precautions to ensure that the constitutional rights of law-abiding citizens are not

  Ian Boyne, “Obama Buju & Gays,” The Gleaner, Nov. 1, 2009, available at http://www. jama
  http://www.akegreen.org/ (last visited Nov. 10, 2009).

        Liberty Counsel is ready and willing to defend any misapplication of the HCP Act to law-
abiding citizens whose speech and exercise of religion is otherwise protected under the United
States Constitution.


                                            Mathew Staver, Esq.


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