Q&A of the Day – Michigan’s “Pronouns” Bill & Non-Protected Speech
Each day I feature a listener question sent by one of these methods.
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Today’s Entry: @brianmuddradio How can the Michigan legislature pass a pronoun law with the 1st Amendment? Do they really think they can send you to jail for not calling a guy who thinks he’s a girl Mr? Insane!
Bottom Line: I’ll echo your insanity sentiment. There’s no doubt in my mind either that what the Michigan legislature is currently doing is as close to legislative insanity as it gets. As for the legality of it under the First Amendment, I’ll dig in and address it, but first let’s reset and talk about what’s in the bill and where it is in the legislative process in Michigan. On June 20th, Michigan’s House passed a “pronouns” bill, which has multiple facets to it. Some which are instructive in terms of what is happening in other blue states, and some that are unique to Michigan such as criminalizing use of non-desired pronouns.
The first aspect to the bill which is becoming commonplace in blue states is the addition of homosexuals as a “protected class”. While age, race, sex and disabilities are already protected classes under federal law, Michigan’s bill, if signed into law, would make sexual orientation (for those who are homosexual) and gender identity (for those who identify in a gender that differs from their sex at birth) protected classes. In a legal sense this push further incentivizes those who’re inclined to “out themselves” both as homosexual and with differing genders as they’d gain greater protections under the law by doing so. That alone is a slippery slope. But as slippery as that slope may be, it has nothing on the Rapids Water Park styled slide that is the provision for potentially criminalizing the speech of others who don’t use the preferred pronouns of these people.
The bill never explicitly states undesired use of pronouns is illegal. What it states is this: A person is guilty of a hate crime if that person maliciously and intentionally does any of the following to an individual based in whole or in part on an actual or perceived characteristic of that individual...Intimidates another individual...Threatens, by word or act...The actual or perceived characteristics of another individual. It then goes into all of the protected classes which includes sexual orientation and gender identity or expression. It then outlines that the offense(s) is a felony and the related punishments for committing the felony act. So, in other words, if a person identifies as something other than their biological sex and someone else won’t refer to that individual by whatever it is they want to be called, they could claim intimidation occurred, or that they were threatened, or some other type of “hate speech” type of action had occurred. As for the constitutionality of this, should it become law...
In answering your question, the Michigan legislature can pass this bill and the governor can sign it into law because that’s their prerogative. Even if a bill is blatantly unconstitutional, it would be incumbent on a legal challenge to occur after it’s enacted by someone who has standing, to attempt to strike it down in the courts. In the grand scheme of the balance of powers, legislatures and executives are actionary. Courts are reactionary. That said, let’s look at the First Amendment in the context of this bill. The Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
But it of course wades into areas of nonprotected speech. Those of which, which have been ruled on over time. They include:
- “Fighting words”
- Incitement to violence
- Obscenities
- Defamation
- Violations of intellectual property rights
The first way to tell that the bill is on extremely shaky ground is that of the various non-protected speech categories there isn’t one which neatly lines up with the language of the bill. Not using preferred pronouns isn’t an IP issue, isn’t defamation, isn’t an obscenity, it isn’t an incitement to violence (unless it would be accompanied by additional language attempt to coax violence). The closest argument would be the attempted use of “fighting words”. The United States Supreme Court has issued two rulings defining “fighting words”. They are these:
- by their very utterance inflict injury or tend to incite an immediate breach of the peace.
- likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
The reach to try to attempt to say that a person not using preferred pronouns should be a felony would be within the first definition in which a perceived victim would state that being referred to by the non-preferred pronouns “inflicted injury”. The problem with trying to make that claim stick is within the second accompanying definition stating that the non-protected speech must “rise far above public inconvenience, annoyance”. I can’t imagine there’s an attorney on this planet which could make the case that calling a wannabee she a he, rises far above public annoyance”. This bill which passed the Michigan House and now is going before the Michigan Senate – which is also Democrat controlled is almost certainly unconstitutional. We’ll see what happens from here. One might imagine that Michigan is giving Democrats in other states ideas.
Notably, a national Sinclair Media poll with over 31,000 people responding found that 97% of Americans don’t believe the bill should become law. That shows you just how radical the average elected Democrat, at least in Michigan, is these days. It also shows there is a semblance of common-sense with almost all Americans.