William Wagner
State's list puts constitutional freedom in peril
By William Wagner
March 23, 2019

On Friday, Agustin Arbulu, Director of the Michigan's Department of Civil Rights, admitted his office logs a list of "hate/bias incidences in the State."

Instead of relying upon verifiable evidence, the department relies on hearsay reports from various sources including "community organizations, individuals, and media coverage." Here, Director Arbulu expressly trusts the Southern Poverty Law Center. Likewise, Attorney General Nessel says her office plans to monitor groups based upon their designation as a hate group by the Southern Poverty Law Center. That Center is notorious for adding peaceful people to their list based upon their sincerely held political views on the sanctity of life, sexuality, and traditional marriage. With reportedly over sixty defamation lawsuits, and settlements in the millions of dollars, the Civil Rights Director and Attorney General ought to denounce the Center's radical political bigotry, not rely upon it to build their own list.

The State's list intentionally compels people with traditional conservative views to remain silent, to disassociate, or to act against their conscience. "Bias," as undefined by the State's list-keepers, allows an individual to accuse someone merely for expressing something the individual allegedly perceives as offensive. Fundamental notions of due process require the State, at the very least, to give notice to citizens of that which the State deems unlawful. Here an accuser gets to define bias after a person expresses a viewpoint. The State's regime makes it impossible for a speaker to know what might qualify as offensive, and then, as a practical matter, shifts to the speaker the impossible burden of proving the accuser was not offended.

For example, once someone decides to perceive a political opponent's red hat or speech as offensive, that person can report the political opponent – landing him on the State's list. Even if the speaker intended no offense, the Attorney General and Civil Rights Director now monitors him or labels his political party a hate group. And yes, in case you were wondering, the Southern Poverty Law Center already includes at least one political party in Michigan on their list.

During the 1970s, Michigan authorities compiled a list of primarily liberal activists. They called it the Red Squad Files. Similar to the current regime, authorities monitored the viewpoints and speech activity of those on the list. The ACLU and others quite properly condemned the abuse of power then, and demanded the State destroy those files. We should likewise do so now.

In a democracy, freedom of expression is not needed to protect the ideas of people with whom those in power agree – it is needed to protect people who express ideas with which those holding power do not agree. Thus, the test of a functioning moral democracy is not whether the government protects speech with which it agrees – it is whether it will protect expression it finds offensive. Instead of censuring or punishing speech, good governance always allows more speech. Our Attorney General and Civil Rights Director should cease and desist with their Orwellian folly.

Prof. William Wagner is Distinguished Professor Emeritus (Law) and President of the Great Lakes Justice Center

© William Wagner


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