Glenn v. HolderGlenn v. Holder
On February 2, 2010, Plaintiffs Gary Glenn, Levon Yuille, René Ouellette, and James Combs filed a complaint [Dkt. # 1] against U.S. Attorney General Eric H. Holder, Jr., challenging the constitutionality of the criminal provisions of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act (“Hate Crimes Act”),
According to the complaint, Plaintiff Gary Glenn is a resident of the State of Michigan and the President of the American Family Association of Michigan, an organization that promotes the “Judeo-Christian ethic and . . . all things necessary to promote . . . the traditional and natural family in our society.” Compl. ¶ 15. Plaintiff Levon Yuille is also a resident of the State of Michigan, a pastor of The Bible Church in Ypsilanti, Michigan, the National Director of the National Black Pro-Life Congress, and the host of a radio talk show known as “Joshua’s Trail.” Id. ¶ 18. Plaintiff René
Plaintiffs allege that the Hate Crimes Act violates their First Amendment rights to express their opposition to homosexuals and homosexual behavior in several ways. First, they contend that the Act is vague when it does not explain what it means for an offender to cause bodily injury “because of” the sexual orientation or gender identity of the victim. Second, they believe that the statute is overbroad in that it criminalizes their constitutional right to express their opinion that homosexual orientation is morally wrong. For similar reasons, they also contend that the Act will chill like-minded people from free association, a right also protected by the First Amendment. Plaintiffs also allege that the Act violates their rights under the Free Exercise Clause of the First Amendment because it penalizes their religious beliefs about homosexuals and their behavior.
While conceding that the Act itself might provide them protection, to the extent that it
Plaintiffs seek a pre-enforcement declaration that
Now before the Court is the U.S. Attorney General’s motion to dismiss [Dkt. # 9], filed on April 15, 2010. Plaintiffs filed a response [Dkt. # 13] on May 5, 2010; the Attorney General filed a reply [Dkt. # 17] on May 20, 2010; and Plaintiffs filed a sur-reply [Dkt. # 21] on June 8, 2010. A hearing was held on July 14, 2010. The Attorney General argues that Plaintiffs do not have standing and that their claims are not ripe for review by a court, and that the Hate Crimes Act does not violate the First Amendment, the Equal Protection Clause, the Tenth Amendment, or the Commerce Clause.
As will be further explained below, the Attorney General’s motion to dismiss will be granted because Plaintiffs lack standing and their claims are not ripe when they have not alleged that they intend to “willfully cause[] bodily injury to any person,” or even to “attempt[] to cause bodily injury to any person, because of . . . the actual or perceived . . . sexual orientation [or] gender identity . . . of any person,” in violation of the Hate Crimes Act. See
I
The Hate Crimes Act was enacted by Congress and signed into law by the President in October 2009. Pub. L. No. 111-84, Div. E, 123 Stat. 2190 (Oct. 28, 2009). The Act provides criminal penalties for “[w]hoever . . . willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person,”
Generally, penalties include up to ten years of imprisonment, a fine, or both.
The Act also contains a “certification requirement,” which means that, before a prosecution may occur, the U.S. Attorney General, or a designee, must certify in writing one of the following:
(A) the State does not have jurisdiction;
(B) the State has requested that the Federal Government assume jurisdiction;
(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or
(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.
(1) The incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim poses a serious national problem.
(2) Such violence disrupts the tranquility and safety of communities and is deeply divisive.
(3) State and local authorities are now and will continue to be responsible for prosecuting the overwhelming majority of violent crimes in the United States, including violent crimes motivated by bias. These authorities can carry out their responsibilities more effectively with greater Federal assistance.
(4) Existing Federal law is inadequate to address this problem.
(5) A prominent characteristic of a violent crime motivated by bias is that it devastates not just the actual victim and the family and friends of the victim, but frequently savages the community sharing the traits that caused the victim to be selected.
(6) Such violence substantially affects interstate commerce in many ways, including the following:
(A) The movement of members of targeted groups is impeded, and members of such groups are forced to move across State lines to escape the incidence or risk of such violence.
(B) Members of targeted groups are prevented from purchasing goods and services, obtaining or sustaining employment, or participating in other commercial activity.
(C) Perpetrators cross State lines to commit such violence.
(D) Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence.
(E) Such violence is committed using articles that have traveled in interstate commerce.
. . .(9) Federal jurisdiction over certain violent crimes motivated by bias enables Federal, State, and local authorities to work together as partners in the investigation and prosecution of such crimes.
(10) The problem of crimes motivated by bias is sufficiently serious, widespread, and interstate in nature as to warrant Federal assistance to States, local jurisdictions, and Indian tribes.
Pub. L. No. 111-84, Div. E, Sec. 4702 (1)-(6), (9), (10), 123 Stat. 2835 (Oct. 28, 2009).
Before enacting the statute, Congress heard evidence regarding the prevalence of hate crimes in the United States and the need for federal involvement to more effectively address the problem.
In Michigan, for example, “ethnic intimidation,” based on race, color, religion, gender, or national origin is “a felony punishable by imprisonment for not more than 2 years, or by a fine of not more than $5,000.00, or both.”
II
The U.S. Attorney General moves to dismiss Plaintiffs’ claims pursuant to
Plaintiffs allege that they “take a strong public stand against homosexual activism, the homosexual lifestyle, and the homosexual agenda.” Compl. ¶¶ 17, 19, 22, 24. They do not identify a particular denomination of Christianity to which they belong, but they all believe that “[c]lear and emphatic opposition to homosexuality, homosexual activism, and the homosexual agenda is a duty of all Christians,” and they “publicly denounce homosexuality, homosexual activism, and the homosexual agenda as being contrary to God’s law and His divinely inspired Word.” Id. ¶¶ 37-38. Plaintiffs allege that as “outspoken opponent[s] of homosexual activism and so-called ‘gay rights’ legislation,” Plaintiffs have been “publicly described” and “listed” as “ ‘enem[ies]’ of those who promote ‘gay rights’ and other aspect of the homosexual agenda.” Id. ¶¶ 16, 19.
Plaintiffs allege that the criminal provisions of the Hate Crimes Act deter, inhibit, and chill
For example, it is alleged that Pastor Yuille is “often warned by his Canadian listeners that he will be targeted for adverse law enforcement action under
III
Federal court jurisdiction is limited by the Constitution to “cases” and “controversies.”
First, the plaintiff must have suffered an “injury in fact” - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not “conjectural” or “hypothetical.” Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan, 504 U.S. at 560-61 (citations omitted). “A plaintiff bears the burden of demonstrating standing and must plead its components with specificity.” Coal Operators & Assocs., Inc. v. Babbitt, 291 F.3d 912, 916 (6th Cir. 2002).
To assert sufficient injury to bring a pre-enforcement challenge to a criminal statute, a plaintiff must allege “an intention to engage in a course of conduct arguably affected with a
In addition to the constitutional requirements, a plaintiff must also satisfy three prudential standing restrictions. See Coal Operators, 291 F.3d at 915-16. First, a plaintiff must “assert his own legal rights and interests, and cannot rest his claim for relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499 (citations omitted). Second, a plaintiff’s claim must be more than a “generalized grievance” that is pervasively shared by a large class of citizens. Coal Operators, 291 F.3d at 916 (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474-75 (1982)). Third, in statutory cases, the plaintiff’s claim must fall within the “zone of interests” regulated by the statute in question. Id. “These additional restrictions enforce the principle that, ‘as a prudential matter, the plaintiff must be a proper proponent, and the action a proper vehicle, to vindicate the rights asserted.’ ” Coal Operators, 291 F.3d at 916 (quoting
Prudential standing requirements are relaxed for plaintiffs who allege that a statute is overbroad in violation of the First Amendment. Such plaintiffs “are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Am. Booksellers, 484 U.S. at 392-393 (quotation and citations omitted). See also Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”); Dombrowski, 380 U.S. at 486 (“Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights.”). Nonetheless, even plaintiffs seeking to assert an overbreadth challenge must first allege sufficient facts to establish a claim that they have suffered or are likely to suffer some injury as a result of the challenged statute. See Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 353-354 (6th Cir. 2007).
The U.S. Attorney General argues that Plaintiffs cannot meet the threshold requirements for standing because they have not alleged that they intend “to engage in a course of conduct . . . proscribed by [the] statute,” or that “there exists a credible threat of prosecution thereunder.” United Farm Workers, 442 U.S. at 298. In particular, the Attorney General argues that the Plaintiffs have not alleged that they intend to “willfully cause[] bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempt[] to cause bodily injury to any person, because of the actual or perceived . . . sexual orientation . . . of any person.”
The Attorney General emphasizes that the Act prohibits only willful, violent conduct – “willfully caus[ing] bodily injury to any person” or attempting to cause such injury “through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device.”
The Attorney General acknowledges that Plaintiffs allege that the Act authorizes “federal investigative and other federal law enforcement actions against” them because of their opposition to “homosexual activism, the homosexual lifestyle, and the homosexual agenda,” Compl. ¶ 48, and that the Act will subject them “to increased government scrutiny, questioning, investigation, [and] surveillance on account of” their opposition, Compl. ¶ 52. The Attorney General insists, however, that there is no basis for these allegations in the language of the Hate Crimes Act itself.
The Attorney General also contends that Plaintiffs’ allegations that the Act will subject them to liability under
The Attorney General also addresses Plaintiffs’ allegations that their exercise of their First Amendment rights is chilled because they fear they may be investigated in connection with a hate crime, see, e.g., Compl. ¶¶ 52, 69. The Attorney General emphasizes that Plaintiffs “must present more than ‘[a]llegations of a subjective chill.’ There must be a ‘claim of specific present objective harm or a threat of specific future harm.’ ” Bigelow v. Virginia, 421 U.S. 809, 816-817 (1975) (quoting Laird v. Tatum, 408 U.S. 1, 13-14 (1972)); White v. United States, 601 F.3d 545, 554 (6th Cir. 2010).
In Laird, for example, “most if not all of the [plaintiffs]” established that they had “been the subject of Army surveillance reports.” Tatum v. Laird, 444 F.2d 947, 954 n.17 (D.C. Cir. 1971). They contended that surveillance of their activities had “chilled” their exercise of First Amendment rights. Laird, 408 U.S. at 13. The U.S. Supreme Court nevertheless found that plaintiffs did not demonstrate “a direct injury as the result of [the government’s] action” because their decision to curtail their expressive activity reflected a “subjective ‘chill’ ” that did not qualify as a “specific present objective harm or a threat of specific future harm” caused by the government’s surveillance.
Similarly, Wisconsin v. Mitchell, 508 U.S. 476 (1993), addressed a First Amendment challenge to a state statute that enhanced an offender’s sentence if his crime was motivated by bias. The Court rejected the defendant’s claim that the statute was “unconstitutionally overbroad because of its ‘chilling effect’ on free speech,” finding the claim too speculative to support an overbreadth challenge:
The sort of chill envisioned here is far more attenuated and unlikely than that contemplated in traditional “overbreadth” cases. We must conjure up a vision of a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered by the statute, these opinions will be offered at trial to establish that he selected his victim on account of the victim’s protected status, thus qualifying him for penalty enhancement . . . . This is simply too speculative a hypothesis to support Mitchell’s overbreadth claim.
The Attorney General acknowledges that under the Hate Crimes Act, evidence of speech, expression, or associations could be relevant and admissible in a prosecution against an individual who engaged in the prohibited violent actions to prove that individual’s motive. See § 4710(1); Compl. ¶ 51. The Attorney General once again emphasizes, however, that the Act only prohibits violent conduct, not speech, and that Plaintiffs do not allege that they intend to engage in any such violent conduct. Thus, Plaintiffs’ belief that they will be subjected to any kind of investigation in the future is simply too “ ‘conjectural’ or ‘hypothetical’ ” to constitute a claim of actual injury necessary to establish standing. Lujan, 504 U.S. at 560 (citation omitted).
The Attorney General acknowledges that the prudential standing requirement that a plaintiff pursue his own personal interests, and not those of a third party, is relaxed in the First Amendment context. Nonetheless, the Attorney General insists that Plaintiffs seek to assert a classic “generalized grievance” against a federal statute with which they disagree. Plaintiffs complain that the statute is “inherently divisive” and creates “a special, protected class of persons under federal law.” Compl. ¶¶ 1, 3. They allege that the Act “seeks to normalize” behavior that they believe to be “contrary to the moral law and harmful to the common good of society.” Compl. ¶ 4. The Attorney General emphasizes that if Plaintiffs were allowed to pursue litigation based on “mere disagreement with a federal policy,” then the judicial system would be flooded with such “generalized grievances.”
In response, Plaintiffs emphasize five main points. First, Plaintiffs suggest that the term
Second, Plaintiffs emphasize that they have been accused by “supporters of the Act” of causing “bodily injury” to persons because of their sexual orientation, and intentionally counseling, commanding, and inducing others to cause such “bodily injury.” See Compl. ¶¶ 56-67. Plaintiffs allege that such accusations have been made by organizations such as the National Gay and Lesbian Task Force and the Triangle Foundation, which Plaintiffs assert “have influence with this current administration, [and] from powerful and influential government officials.” See Compl. ¶¶ 57-67.
Third, Plaintiffs emphasize that nothing “limit[s] the authority of Federal officers, or a Federal grand jury, to investigate possible violations,” of the Act, quoting
When congregants are chilled from participating in worship activities, when they refuse to attend church services because they fear the government is spying on them and taping their every utterance, all as alleged in the complaint, we think a church suffers organizational injury because its ability to carry out its ministries has been impaired. . . . A judicial determination that the INS surveillance of the churches’ religious services violated the First Amendment would reassure members that they could freely participate in the services without having their religious expression being recorded by the government and becoming part of official records.
870 F.2d at 522-23. Like the plaintiff churches in Presbyterian Church, Plaintiffs here assert they have standing to challenge the Hate Crimes Act because they are targets for government scrutiny, questioning, investigation, surveillance, and other adverse law enforcement actions. Moreover, they are seeking judicial reassurance that they can freely participate in their speech and related religious activities without being investigated or prosecuted by the government or becoming part of official records because of their specific beliefs. See Compl. ¶ 53.
Plaintiffs also emphasize that in Epperson v. Arkansas, 393 U.S. 97, 101-02 (1968), the plaintiff had not been charged under the challenged statute, “no record of any prosecutions in Arkansas” under the challenged statute existed, and the statute was no more than a “curiosity.” Yet, the Supreme Court held that the plaintiff had standing to bring the First Amendment challenge. Id. In addition, in Bolton, the Supreme Court found that abortionists had standing to challenge a state’s abortion statute even though “the record [did] not disclose that any one of them [had] been prosecuted, or threatened with prosecution.” 410 U.S. 179, 188 (1973). Finally, the Sixth Circuit has held that where a plaintiff “would be subject to application of the [challenged] statute,” that
Fourth, Plaintiffs insist that “speech, beliefs, and expressive conduct are necessarily targeted by the Act.” Plaintiffs assert that the plain language of
Fifth, Plaintiffs emphasize the severity of the criminal sanctions permitted under the statute. See Reno v. A.C.L.U., 521 U.S. 844, 872 (1997) (“The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words [or] ideas.”); Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002) (noting that “even minor punishments can chill protected speech”). Plaintiffs contend that this case is distinguishable from Laird, 408 U.S. 1, because while Laird involved government surveillance, it did not involve the potential for criminal sanctions.
In reply, the Attorney General distinguishes Presbyterian, Epperson, and Bolton. The Attorney General highlights that in Presbyterian, surveillance of church religious services had actually occurred, thereby justifying the conclusion that the plaintiff churches had standing to bring an action to vindicate their First Amendment rights. However, to the extent that the churches sought prospective relief, the court remanded the case to the district court to determine whether the churches had standing because it was unclear whether the churches would be subject to such surveillance in the future. Here, the Attorney General emphasizes that Plaintiffs seek to premise standing solely on speculation that they might involve themselves in conduct subject to the Hate Crimes Act in the future, and be investigated by law enforcement officers for an offense that they
As to Epperson, the Attorney General highlights that counsel for the state acknowledged at oral argument that the plaintiff teacher would be at risk for prosecution if she presented the theory of evolution in class as she said she intended to do. Here, the Attorney General denies that Plaintiffs could be prosecuted under the Hate Crimes Act for simply expressing their views against homosexuals and homosexual behavior. With respect to Bolton, the Attorney General emphasizes that while the abortion statute at issue had not yet been enforced, the predecessor statute had been enforced.
The Attorney General’s arguments are persuasive. Plaintiffs do not have standing to pursue their claims when they do not allege an “injury in fact,” that is both “concrete and particularized,” and “actual or imminent.” Lujan, 504 U.S. at 560. In other words, they have not demonstrated that there is an existing “case or controversy” within the meaning of
Moreover, that fact, in combination with the Attorney General’s denial that the Hate Crimes Act applies to Plaintiffs’ conduct (a conclusion that is supported by the text of the statute, the Rules of Construction, and the legislative history), supports the conclusion that Plaintiffs have not demonstrated that “there exists a credible threat of prosecution” under the Act. Babbitt, 442 U.S. at 298. Plaintiffs’ fear of prosecution is speculative; they do not allege that they have violated the Hate Crimes Act in the past, nor that they intend to violate it in the future. See United Farm
IV
Whether a plaintiff’s claims are ripe also affects a federal court’s subject matter jurisdiction. “Ripeness is a mixture of Article III concerns about actual cases or controversies and prudential concerns about the appropriate time for a court to make a decision.” Seiler v. Charter Twp. of Northville, 53 F. Supp. 2d 957, 961 (E.D. Mich. 1999) (quoting Cmty. Treatment Ctrs., Inc. v. City of Westland, 970 F.Supp. 1197, 1209 (E.D. Mich. 1997)). “Ripeness is more than a mere procedural question; it is determinative of jurisdiction. If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed.” Id. (quoting Bigelow v. Mich. Dep’t of Natural Res., 970 F.2d 154, 157 (6th Cir. 1992)).
In Norton v. Ashcroft, the court explained, the “[r]ipeness doctrine exists ‘to ensure that courts decide only existing, substantial controversies, not hypothetical questions or possibilities.’ ” 298 F.3d 547, 554 (6th Cir. 2002) (citation omitted), cert. denied, 537 U.S. 1172 (2003). To determine ripeness, a court “examines (1) the likelihood that the harm alleged will ever come to pass; (2) whether the factual record is sufficiently developed to allow for adjudication; and, (3) hardship to the parties if judicial review is denied.” Id. (citing Adult Video Ass’n v. United States, 71 F.3d 563, 568 (6th Cir. 1995)). Since this case presents a pre-enforcement challenge, the Attorney General asserts that it is “ripe for review only if the probability of the future event
The Attorney General argues that Plaintiffs’ claims are not ripe for review because there is no “likelihood that the harm alleged will ever come to pass,” Norton, 298 F.3d at 554, when Plaintiffs have not alleged that they intend to engage in any conduct that might violate the Hate Crimes Act. The Attorney General particularly distinguishes the Hate Crimes Act from the Freedom of Access to Clinic Entrances Act (“FACE”),
The Attorney General also emphasizes that in this case, no offense has occurred, no offenders have been charged, and thus, there is no factual predicate to determine whether any
In response, Plaintiffs emphasize that there is nothing “hypothetical or speculative” about Plaintiffs’ conduct or the manner in which the Act will be enforced. They assert that they have a “well-founded belief that the statute will be enforced (or threatened to be enforced) in ways that deter and inhibit their activities,” and that they have a “credible fear of enforcement.” Plaintiffs again emphasize that “at every turn during the legislative process, supporters of the Act defeated efforts designed to ensure that it would not – and could not – be enforced as alleged in Plaintiffs’ complaint.
Although Plaintiffs do not contend that anyone has threatened them with prosecution, in their sur-reply brief they highlight recent statements by U.S. Attorney Barbara McQuade and Assistant United States Attorneys for the Eastern District of Michigan, to the effect of being “eager” and “excited about” the Hate Crimes Act and generally pursuing enforcement opportunities. Plaintiffs also contend that the Act chills the exercise of their constitutionally protected rights, thereby resulting in irreparable injury, because even a momentary loss of First Amendment rights constitutes irreparable harm, citing Elrod, 427 U.S. at 373. Plaintiffs assert that the case is fit for judicial resolution because no further factual development is required.
V
In addition to arguing that Plaintiffs lack standing and that their claims are not ripe for review, the Attorney General argues that it is entitled to dismissal of Plaintiffs’ claims because Plaintiffs have failed to state a claim upon which relief can be granted when the Hate Crimes Act does not violate the First Amendment, the Equal Protection Clause, the Tenth Amendment, or the Commerce Clause. Plaintiffs do not have standing and their claims are not ripe, therefore, the Attorney General’s “failure to state a claim” arguments will not be reached.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 7, 2010
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on September 7, 2010.
s/Tracy A. Jacobs
TRACY A. JACOBS
Notes
(i) the conduct . . . occurs during the course of, or as a result of, the travel of the defendant or the victim--
(I) across a State line or national border; or
(II) using a channel, facility, or instrumentality of interstate or foreign commerce;
(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct . . . ;
(iii) in connection with the conduct . . . , the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
(iv) the conduct --
(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
(II) otherwise affects interstate or foreign commerce.
(1) IN GENERAL. — Nothing in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence.
(2) VIOLENT ACTS. — This division applies to violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability of a victim.
(3) CONSTRUCTION AND APPLICATION. — Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment of the Constitution of the United States. Nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person’s exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association was not intended to –
(A) plan or prepare for an act of physical violence; or
(B) incite an imminent act of physical violence against another.
(4) FREE EXPRESSION. — Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.
(5) FIRST AMENDMENT. — Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.
(6) CONSTITUTIONAL PROTECTIONS. — Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.
Pub. L. No. 111-84, Div. E, Sec. 4710 (1)-(6), 123 Stat. 2841 (Oct. 28, 2009).