Legislature Poised to Criminalize Speech

Report by

Prof. William Wagner

WFFC Distinguished Chair for Faith & Freedom at SAU

House Bill No. 4474, transforms Michigan’s Ethnic Intimidation law (MCL 750.147b) into a law designed to criminalize speech. A companion proposal, House Bill No. 4475 adds the crime described in HB 4474 to a list of felony crimes. This legislation poses serious threats to freedom of thought, conscience and religion. As written, it clearly violates the First Amendment protections for Free Speech and Free Exercise of Religious Conscience, and conceivably could result in professors being charged with a felony offense.

Here is a detailed analysis of the threat from Prof. William Wagner


Here are my thoughts and concerns about House Bills 4474 and 4475 as currently written. Many problems exist with the so-called “Hate Speech” bills, but perhaps most troubling are the provisions unconstitutionally making citizens criminally punishable and civilly liable for speech.

Criminalizing Speech – When Vagueness Becomes Perilous

HB 4474 provides that

“A person is guilty of a hate crime if that person … harasses another individual…, if the person, regardless of the existence of any other motivating factors, … engages in the action based in whole or in part on any of the following actual or perceived characteristics of another individual”

(a) Sex.
(b) Sexual Orientation.
(c) Gender identity or expression

Under the proposed legislation, this new speech crime constitutes a felony with significant fines and imprisonment. Additional penalties include Orwellian, Soviet-style forced reeducation under the guise of community service.

In addition to criminal prosecution, the proposed law creates a draconian civil cause of action:

… an individual who suffers … severe mental anguish … as a result of a hate crime may bring a civil cause of action against the person who commits the offense to secure an injunction, action damages, including damages for infliction of severe mental anguish, or other appropriate relief. A plaintiff who prevails in a civil action brought under this section may recover both the following:

(a) Damages in the amount of 3 times the actual damages described in this subsection or 25,000.00, whichever is greater.
(b) Reasonable attorney fees and costs.

The proposed speech law is wholly inconsistent with fundamental principles of constitutional good governance under the rule of law. In this regard, the bill unconstitutionally:

  1. fails to provide fair notice of the conduct it purports to prohibit;
  2. chills free speech and the exercise of the religious conscience;
  3. places the burden of disproving an accusation on the accused—whilst deeming a violation to exist even when the accused possesses no intent to harass or offend.

The Proposed Speech Law Unconscionably Fails to Provide Fair Notice of the Conduct it Purports to Prohibit

The first problem plaguing the proposed speech crime here is that it fails to inform an accused promptly, in understandable language, of the nature and cause of the accusation.

HB 4474 vaguely provides that gender identity or expression “means having or being perceived as having a gender-related self-identity or expression whether or not associated with an individual’s assigned sex at birth.” Left even more vague under HB 4474 is sexual orientation, which the bill does not bother to define. Most troubling, the bill vaguely and ambiguously describes harass as “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable individual to feel …harassed … and that actually causes the victim to feel … harassed...”

Preliminarily, because God created human life in His image, the innate positive value of every person stands as a sacred tenet. That is why all people are worthy of being treated with dignity and respect. “Harass,” as vaguely defined in the bill, however, allows an individual to accuse someone of harassment merely for expressing something the individual allegedly perceives or feels. Thus, even if a citizen possesses no intent to offend or harass, once someone decides to perceive or feel the citizen’s repeated expression as actionable, that person can commence legal action and a prosecutor can charge a felony. Legal action commences against the citizen based not on what is in their heart or their intent, but rather on what another person or the accuser feels.

Armed with its arbitrary harassment provisions and draconian penalties, the bill emerges as an instrument holding the potential to inflict cultural genocide. For example, make no mistake about it: those with an anti-Christian agenda will wield a weapon capable of extinguishing Christian expression in the State of Michigan.

The ambiguous language of the proposed speech law fails to provide citizens with adequate notice of the conduct prohibited by the law. This failure creates an impossibly precarious proposition for individuals attempting to discern what constitutes a violation, so as to conform their personal and professional behavior to the policy. Moreover, because authorities can use ambiguity in the bill to decide, after the fact, what expression the policy prohibits, the possibility of enforcement is always unpredictable.

Due Process Concerns — Unconstitutional Vagueness

The Due Process Clauses of the United States Constitution, and similar protections in the Michigan Constitution, guarantee individuals the right to prior notice of what constitutes prohibited conduct. If a law is vague, ambiguous, or indefinite so that it is impossible to determine what it requires, the courts will hold the law unconstitutionally void for vagueness, and therefore unenforceable. Governmental restrictions, especially on freedom of speech, are an unconstitutional infringement on free speech if, as here, they are unduly vague. As the U.S. Supreme Court has noted: “Vague laws offend several impact values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute abut(s) upon sensitive areas of First Amendment freedoms, ‘it operates to inhibit, the exercise of (those) freedoms.’ Uncertain meanings inevitably lead citizens to “steer far under of the unlawful zone’ . . . then if the boundaries of the forbidden areas were clearly marked.’” Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (footnotes and citations omitted). The proposed law offends all three of these principles: (1) it does not provide citizens with sufficient notice as to what behavior is proscribed; (2) it allows those charged with enforcing the law to enforce the it arbitrarily and selectively; and (3) its vagueness chills the speech of citizens who, not knowing where the “harassment” begins and ends, will self-censor their free speech and religious conscience in an effort to avoid violating the edict. If a citizen believes that marriage is a sacred union between one man and one woman, is the citizen liable for repeatedly saying so? If a citizen believes that sex is based on biology and determined by a person’s chronozones, is the person subject to prosecution for continuously saying so?

A few especially ambiguous phrases in the proposed law are particularly troublesome: “harass”, “sexual orientation”, and “gender identity and expression”. As used in the proposed law, these phrases are so vague (and morally relative in their potential applicability) that it is impossible for any reasonable person to discern permissible from prohibited expression.


The bill defines “harass” (and other associated words) using the same words as the words supposedly being defined. The definitions in the law make it clear those words mean whatever the alleged victim wants them to mean. Just as troubling, the inherent vagueness of the harassment provision permits government authorities and political activists to make morally-relative determinations and arbitrarily transform a citizen’s protected political expression or sincerely held faith-based beliefs, into a prosecutable “harassment.” Discerning criminal conduct in such a manner, after a citizen’s act of political or religious expression, violates the citizen’s inalienable fundamental right to prior notice of prosecutable conduct.

Gender Identity or Expression / Sexual Orientation

If the vagueness of the phrase “harassment” fails to provide adequate notice of that which the statute prohibits, the ambiguity of the phrases “gender identity or expression” and “sexual orientation” are even less sufficient. Such categories have meaning way beyond just homosexuality. Because the proposed law defines some of these classifications using the very words being defined, the so-called definitions, where they even exist, are illusory. An accuser, therefore, gets to describe what this language means without limit by simply filing charges alleging some statements that allegedly amount to “harassment” (also defined in the law using the very word being defined).

To be sure, sexual orientation, for example, comes in many forms. In addition to homosexuality, does the bill cover other groups of people with other sexual orientations? Does it cover, for example, a series of sermons about the conduct of a group of people whose sexual orientation is for extramarital sex (swingers/adulterers)? Does it cover discussion about the conduct of a group of people whose sexual orientation is for multiple partners within a marital relationship (polygamists)? What about a group of people whose sexual orientation is for young children (pedophiles)? Does it cover a group of people whose orientation is toward violence (e.g., serial killer rapists)? What about people whose sexual orientation is for dead humans (necrophiles)? What about people whose sexual orientation is for barnyard animals (bestiality)? Or those whose sexual orientation is toward one’s own close relatives (incest)? Given the absence here of any statutory definition, the ambiguous language of the proposed legislation arguably could include any and all such groups. Will an otherwise law-abiding citizen, therefore, face prosecution for repeatedly calling pedophilia or necrophilia bad? An individual’s inalienable right to free religious expression forbids such government-imposed guessing games, especially when, as here, the public has no way of predicting what morally-relative choice the prosecutor will choose when making a decision to prosecute. The bill nonetheless expressly provides that a citizen faces prosecution “regardless of the existence of any other motivating factors.” Thus, it matters not that the expression prosecuted was part of a sermon given by a pastor, or a stump speech given by a politician, or a news item published or broadcast by a reporter.

Thus, the speech prohibited by the proposed law wholly depends on the whim of a prosecutor’s or a political activist’s personal choice—rather than on a clearly expressed rule of law articulated in the statutory language. To further illustrate, suppose a different prosecutor, with a different world view, on a different day, makes a different morally-relative choice—this time elevating the right of one group’s sincerely held confession of faith over the right of another group’s sexual orientation or gender identity. Might such a prosecutor use the same statutory ambiguity to find that statements by a left-leaning political activist to be “harassment” hate speech against another protected classification of persons (e.g., heterosexual members of the Pentecostal Church) on account of “religion”?

Because no articulated rule of law here gives notice to the public of what the bill proscribes, unpredictable possibilities of prosecution pervade all parts of the social order. The vague statutory language at issue, therefore, violates a citizen’s fundamental right to prior notice of prosecutable conduct guaranteed under both the U.S. and Michigan Constitutions.

The Danger of Arbitrary Enforcement

When, as here, ambiguous language prevents notice of what constitutes a speech offense, authorities can arbitrarily define the offense after the commission of the act. For example, the vagueness of the hate speech bill here permits authorities to arbitrarily decide (after the fact) that a citizen’s expression falls within the law’s prohibition because of a specially selected protected group of persons. By doing so, the inherent vagueness enables authorities to make a personal choice either to see an expression as an intolerant harassment violation made because of a particular characteristic (e.g. religious belief, sexual orientation, etc), or to see the expression as progressively promoting tolerance because of the characteristic. Inevitably, authorities implementing hate speech codes elevate the right of one protected group (e.g. with a particular religious belief or sexual orientation), over the right of another protected group (e.g. with a different religious belief or sexual orientation). While admitting that the policy prohibits speech because of either religious belief or sexual orientation, or gender identity or expression, nothing in the policy precludes an authority from elevating one over the other, or seeing one as a hateful violation and the other as an exercise promoting tolerance.

Thus, the speech prohibited by the proposed hate speech law wholly depends on the whim of an authority’s personal choice—rather than on a clearly expressed rule of law articulated in the policy language. Because no articulated rule of law gives notice to the citizenry of what the phrases proscribe, unpredictable possibilities of enforcement pervade all parts of the social order.

The meaning of a law must be clear enough so that ordinary persons who are subject to its provisions can determine what acts will violate it and so they do not need to guess at its meaning. An unambiguously drafted law affords prior notice to the citizenry of conduct proscribed. In this way the rule of law provides predictability for individuals in their personal and professional behavior. A fundamental principle of due process, embodied in the right to prior notice, is that a policy is void for vagueness where its prohibitions are not clearly defined. Although citizens may choose to roam between legal and illegal actions, governments of free nations insist that policies give an ordinary citizen notice of what is prohibited, so that the citizen may act accordingly.

The proposed law puts Michigan citizens in an impossibly precarious position of trying to discern what constitutes harassment under the new vague categories. Because accusers with an agenda can use the ambiguity of the proposed categories to decide, after the fact, what is prohibited or what offends them, the possibility of people of faith facing oppressive action is limitless. The accusers are only limited by their own imagination and ability to come up with new ways to enforce the new categories.

The proposed new legislative provisions are incapable of clear definition. A person can be accused and charged under the vague terms of such categories for merely expressing a religious belief that another individual internally defines as being offensive to him or her. Moreover, the determination of whether a person is a member of one of the new protected classes is subjective and in the eye of the beholder. A person cannot know if their conduct is prohibited until after the fact. Thus, even if a person possesses no intent to offend or do anything wrong, the alleged victim can commence civil enforcement of this policy and subject the accused to legal costs and sanctions pursuant to the policy.

The Proposed Policy is Inconsistent with Universally Recognized Liberty Interests, Including the Freedom of Expression and the Free Exercise of Religious Thought and Conscience

Recognizing the perilous implications of suppressing free expression and the free exercise of thought and conscience, the constitutional rule of law in the United States guarantees these fundamental freedoms to individuals.

In addition to fundamental due process principle of notice discussed above, the proposed speech code substantially interferes with universal fundamental liberties including the right to freedom of thought, conscience, as well as the right to freedom of expression. The right to freedom of expression at minimum should include the freedom to hold opinions and to receive and impart information and ideas without interference by those in authority. The freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally or in writing, is an inalienable liberty. The right to free expression should, at a bare minimum, mean that governments of free nations should have no power to restrict a person’s expression due to its message, ideas, subject, or content.

The very fact that speech may succeed in effecting social change will often demean and offend greatly, inevitably resulting in attempts by persons with vested interests to punish and censor it. But this is the very reason for according it special protection. The test of a functional democratic institution is not whether institutional authorities tolerate speech with which it agrees; it is whether institutional authorities tolerate speech with which it disagrees. True tolerance is not about tolerating speech with which I agree; it is about having tolerance for speech that offends me, and of which I find abhorrent, demeaning, and hostile. As an orthodox Christian I have been subject to some of the most demeaning and hostile speech imaginable. Nonetheless, I defend to my last breath, the right of those engaging in such speech to express the thoughts that demean and hurt me so deeply.

Universally, the rule of law in free nations also guarantees the free exercise of thought and conscience for individuals. This right includes the freedom to adopt a belief and, in public or private, manifest that belief, for example, in teaching, preaching, reporting, or politicking.

A free and democratic society cannot remain so for long without protecting freedom of expression and the free exercise of thought and religious conscience. Our state policies should reflect these self-evident truths.

Redefining the meaning of “sex” collides with the constitutionally protected conscience held by many citizens that acknowledge the inviolable differences between men and women. People of the Abrahamic faiths, for example, recognize that differences in sex reflect God’s nature and that this difference is inherent to our status as being made in the image of God: “So God created mankind in his own image, in the image of God he created them; male and female he created them.” Genesis 1:27. For people of faith, the “Imago Dei” is the source of the inherent worth and dignity of all persons. It is not invidious discrimination or hate speech, therefore, to express a desire to protect one’s privacy in a bathroom or shower. Nor is it an oppressive social construct in need of deconstruction. Likewise, for these same reasons, people of faith do not engage in illegal activity when, grounded in their sincere religious conscience, they express biologically accurate personal pronouns.[1] Chromosomes are not a social construct. “Sex” is immutable, innate, and a biological truth.[2]

At the very least, the legislature should make clear that application of these newly proposed rules to religious people must comply with the Michigan and U.S. Constitution’s religious accommodation requirements. This accommodation protects the free exercise of conscience by religious people.

As currently drafted, though, the bill prohibits persons with traditional religious views of family and sexuality from exercising their constitutionally protected free speech and free exercise rights. The First Amendment bar the state from “prohibiting the free exercise [of religion]; or abridging the freedom of speech…” U.S. Const. amend. 1. Our State Constitution likewise expressly guarantees this same liberty. The bill violates these rights. It prohibits the free exercise of religion by restricting, regulating, and punishing speech of persons with traditional views on sexuality and family. It abridges the freedom of speech in an unconstitutionally content-based way.

In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the U.S. Supreme Court struck down a speech law that levied special restrictions on individuals who expressed views about race, color, creed, or gender. The Supreme Court held that such a law facially violates the First Amendment right to freedom of speech because “the First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects. Id. at 391. The law struck down by the Supreme Court and the current bill share the same unconstitutional features. The proposed law here seeks to sacrifice free speech on the altar of a political agenda. The First Amendment implications could not be clearer.

Imagine a series of conversations at a university where a student says that he believes that Jesus is the only way to God, or that he does not believe that civil partnerships are pleasing to God, or that homosexual conduct is not condoned in the Bible. Another student hears this series of conversations and calls the police alleging a felony offense, and files a civil complaint under the new categories and speech policies.

The failure to protect citizen’s free speech and free exercise rights inevitably leads to more cultural divisiveness and litigation. It further improperly elevates the new categories (and the political agenda of their proponents) over the rights of all the other citizens with different beliefs or values.

Professor Jordan Peterson received wide notoriety for his opposition to speech legislation in Canada which enforced the use of the preferred pronouns of students by university professors.[3] His opposition to Canada’s speech legislation was rooted in deeply held philosophical premises related to human nature, not in adherence to any specific religion. As explained by Carl Trueman:

“Human nature in general is limited but limitation does not mean less freedom. I cannot fly simply by flapping my arms, but that inability does not mean that I am in bondage. I need to understand my limits as a human being and learn to act accordingly—the limits of human nature in general and of myself in particular: I can, for example, swim but I will never be as good as Michael Phelps.

Failure to understand this—or perhaps better, a refusal to acknowledge this—lies at the root of much of the political insanity that surrounds us. Rejecting this is the premise undergirding transgender ideology, turns speech with which we disagree into acts of oppressive hate, and outlaws reality en masse. That is one reason why Peterson opposes the legislation of gender speech codes: not only do such violate the principle of free speech, in the hands of the transgender lobby they demand that people say that which they know is untrue and inconsistent with reality.”[4]

The overbroad and ambiguous definition of “harass” in the proposed law improperly elevates for example, the feelings of individuals identifying as transgender over the constitutional rights of others to express religious and political views inconsistent with transgender ideology.

Again, the First Amendment to the United States Constitution protects individuals against government actions substantially interfering with the free exercise of religion or abridging freedom of speech or assembly. U.S. Const. amend. I. Under the Constitution, no government can dictate what is acceptable and not acceptable on matters of religion and politics. The government cannot silence and punish all objecting discourse to promote one political viewpoint. Yet, the proposed law does just that by providing a vehicle to punish those who do not align with the present-day sexual agenda “orthodoxy”. Coercing authorities to limit the viewpoint of allowable speech, the proposed rule unconstitutionally compels citizens to politically normalize sexual ideology. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943). The proposed bill fails to protect constitutionally protected speech.

Enforcement of the Proposed Policies Undermines Precepts of Good Governance

Arbitrarily enforcing such vague policies undermines good governance under the rule of law. A principal precept of the rule of law is that it provides predictability for individuals in the conduct of their affairs. As discussed above, vague provisions provide no such predictability and opens the door for government authorities to decide what the policy means after the conduct occurs. That which is prohibited becomes clear only after government selectively enforces the vague policy against someone—based upon the government’s own morally relative construal of the ambiguous language. To be sure, the exercise of such discretion provides the means for proponents of the new speech restrictions and categories to efficiently advance a political agenda. The insidious consequences of doing so, however, include the deterioration of fundamental democratic principles and good governance under the rule of law

In the case of a vaguely worded law, enforcement can, without prior notice of the conduct prohibited, lead to a citizen’s loss of liberty and property. Moreover, if the policy vaguely regulates free expression, an ominous chill on the exercise of fundamental freedoms accompanies its promulgation. The great potential for abuse through arbitrary enforcement of these new provisions is reason enough to oppose their enactment. Compelled by the piercing chill of an unpredictable potential enforcement action, citizens cease exercising their basic liberties. They fear to speak or exercise their religious freedom.

In a pluralistic society, numerous conflicting points of view exist. Historically, therefore, the perpetuation of a functional republic requires free and open debate. The current prosecution and persecution of Christian people around the world illustrates, however, just how efficiently government can use a vague policy or law to suppress free expression and the free exercise of religion.

The potential for unpredictable legal action chills future religious expression of teachers, students, and religious academic institutions. Fearing enforcement action, citizens and religious leaders will inevitably self-censor sincerely held faith-based beliefs—and may even cease expressing anything at all.

The proposed categories also communicate an ominous admonition to Christian people and anyone expressing a point of view different from that held by the proponents. To maintain comity between those of differing viewpoints and ensure public order, government must first recognize these universal constitutional freedoms.


In a constitutional republic like ours, freedom of religion, freedom of speech and expression, and freedom of association are not needed to protect the ideas and rights of people with whom the government agrees – it is needed to protect those with whom the government does not agree. Make no mistake about it. Those advocating for this legislation will wield these policies as a weapon capable of destroying expression of viewpoints grounded in the sacred. One merely needs to look at the scores of cases brought against schools, churches, businesses, and individuals around our country. Proponents use these laws to silence and financially cripple those who dare to adhere to a different viewpoint and oppose their agenda. The irony is that, while trumpeted as non-discrimination policies, these policies invidiously discriminate against, and violate the conscience of many citizens.

Moreover, the impetus for adding this new crime and civil liability has nothing to do with advancing or protecting civil rights. Rather it is about coerced acceptance of LGBTQ ideology, by force of law and punishment. Even if the government agrees with such policies, such agreement gives it no right to trample on the constitutional rights of others. The test of a properly functioning republic is not whether the government protects the speech and religious rights with which it agrees – it is whether it will protect the speech, religious rights, and liberty of those citizens with whom it does not agree. Instead of censuring or punishing speech and religious rights, the answer is always to have more speech and the free exchange of ideas – at least in a republic that values true freedom, pluralism, and diversity. Selective enforcement and punishment of citizens under these proposed policies sends a bitter chill throughout our country. Promulgating vague policies that allow for arbitrary and selective enforcement is never an appropriate public policy for any institution that values good governance under the rule of law.

Freedom of conscience is a fragile thing. I personally experienced what happens when nations and institutions travel down paths prohibiting expression. I held in my hands the ashes of many who died because of their conscience. As a diplomat, I also worshiped in a church where hundreds of men, women and children were slaughtered as they sought sanctuary. In addition, I can tell you many stories of persecution grounded in the exercise of expression. I’ll just note one. A member of a diplomatic team I led was brutally tortured, almost to the point of death. Why? He exercised freedom of conscience and stood up for good governance under the rule of law. After these, and similar experiences, I vowed never to remain silent.  Now is not the time for anyone who values freedom of religious expression to remain silent.

[1] Under the proposed law, use of the “wrong” personal pronouns for a person identifying as the opposite sex could be considered harassment. See Jarrett Stepman. By Inserting Gender Identity, Team Biden Muddies Title IX’s Protections for Girls, Women at School, The Heritage Foundation(June 27, 2022), https://www.heritage.org/gender/commentary/inserting-gender-identity-team-biden-muddies-title-ixs-protections-girls-women.

[2] See Lawrence S. Mayer & Paul R. McHugh, Sexuality and Gender; Findings from the Biological, Psychological, and Social Sciences, New Atlantis at 89 (Fall 2016); Francisco I. Reyes et al., Studies on Human Sexual Development, 37 J. of Clin. Endocrinology & Metabolism (1973) at 74-78; Michael Lombardo, Fetal Testosterone Influences Sexually Dimorphic Gray Matter in the Human Brain, 32 J. of Neuroscience 674080 (2012); P.C. Sizonenko, Human Sexual Differentiation, Geneva Foundation for Medical Education and Research (2017).

[3] Jessica Murphy, Toronto Professor Jordan Peterson Takes on Gender-Neutral Pronouns, BBC (Nov. 4, 2016), https://www.bbc.com/news/world-us-canada-37875695.

[4] Carl R. Trueman, Jordan B. Peterson: A Sign of the End Times?, Modern Reformation (Aug. 20, 2018), https://modernreformation.org/resource-library/web-exclusive-articles/the-mod-jordan-b-peterson-a-sign-of-the-end-times/.

About the Author

Prof. William Wagner
WFFC Distinguished Chair for Faith & Freedom at SAU
Professor Wagner holds the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University. He has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression.

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