York column: Hate-crimes ploy undermines free speech

What does a hate-crimes bill have to do with money for U.S. troops fighting in Afghanistan and Iraq?

Nothing, except that the National Defense Authorization Act, which will soon win final passage in Congress and be sent to the president's desk, also contains the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which Democrats placed inside the defense measure over Republican objections.

The crime bill, which would broaden the protected classes for hate crimes to include sexual orientation and "gender identity," passed the House earlier this year as a stand-alone measure. But it's never had the votes to succeed by itself in the Senate. So over the summer, Democrats, with the power of their 60-vote majority, attached it to the defense bill.

Republicans argued that the two measures had nothing to do with each other. Beyond that, GOP lawmakers feared the new bill could infringe on First Amendment rights in the name of preventing broadly defined hate crimes. The bill's critics, including many civil libertarians, argued that the hate-crimes provision could chill freedom of speech by empowering federal authorities to accuse people of inciting hate crimes, even if the speech in question was not specifically related to a crime.

Republican Sen. Sam Brownback offered an amendment saying the bill could not be "construed or applied in a manner that infringes on any rights under the First Amendment" and could not place any burden on the exercise of First Amendment rights "if such exercise of religion, speech, expression, or association was not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another."

The Senate passed Brownback's amendment. After that, several Republicans, their fears allayed, voted for the whole defense/hate-crimes package, which passed the Senate last July.

Meanwhile, on the House side, representatives passed their own version of the defense-authorization bill, which did not contain the hate-crimes measure.

Then it was time for the House and Senate bills to go to a conference committee, where the differences between them would be ironed out. That's where the real action began.

First, the committee — controlled by majority Democrats, of course — inserted the hate-crimes measure into the House bill, where it had not been before. Then lawmakers made some crucial changes to Brown-back's amendment. Where Brownback had insisted, and the full Senate had agreed, that the bill could not burden the exercise of First Amendment rights, the conference changed the wording to read that the bill could not burden the exercise of First Amendment rights "unless the government demonstrates ... a compelling governmental interest" to do otherwise.

That means your First Amendment rights are protected — unless they're not.

The bill was finished. When it was returned to the House in early October for final passage, there was just one vote; lawmakers could either vote for the whole package or against it. They could vote to fund the troops, which would also mean voting for the hate-crimes bill, or they could vote against the hate-crimes provision, which would also mean voting against funding the troops.

At decision time, 131 of the Republicans most opposed to the hate-crimes measure voted against the whole bill. Their vote "against the troops" will no doubt be used against them in next year's campaign, which was, of course, the Democratic plan all along. The bill passed anyway, with overwhelming Democratic support.

Now it's the Senate's turn. Like the House, there will be just one vote. Although some Republicans will balk, the bill will be passed there, too, with big Democratic support.

In the past, Democrats knew they couldn't get away with a trick like jamming a hate-crimes bill inside a defense measure because there was a Republican president to threaten a veto. But now, President Obama says he'll proudly approve the improbable combination of national defense and hate crimes.

"I will sign it into law," the president told a cheering crowd at the gay-activist group Human Rights Campaign's annual dinner Oct. 10. "Together, we will have moved closer to that day when no one has to be afraid to be gay in America."

Actually, we will have moved closer to that day when lawmakers use stealthy, behind-closed-doors maneuvers to chip away at fundamental constitutional rights. Ask Republicans how it happened, and they say simply, "Elections have consequences." They're right.

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Byron York is chief political correspondent for The Washington Examiner.