On Tuesday I noted that, contrary to House Speaker Nancy Pelosi's assurances that the protections for First Amendment rights in the federal hate crime bill are stronger now than ever, the latest version (the one that will become law) omits language that the ACLU considered crucial. Hans Bader and Byron York, both in the Washington Examiner, point out another way in which the bill has become less freedom-friendly on the way to passage: The conference committee that resolved differences between the House and Senate versions dropped an amendment written by Sen. Sam Brownback (R-Kan.) that said the bill should not be applied in a way that imposes a substantial burden on First Amendment freedoms "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 bill now says that it's OK to impinge on people's First Amendment freedoms even if they are not conspiring to commit a violent crime or deliberately inciting one, as long as the burden "is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest." In light of this more permissive language, Bader argues, the new law could be combined with the federal "aiding and abetting" statute to justify prosecuting people whose speech allegedly influenced others to commit hate crimes, even when that result was unintended. For example, a minister who inveighs against homosexuality could be prosecuted if a member of his congregation assaults gay people.
This is the sort of scenario cited by many conservative opponents of the hate crime bill. It never seemed very plausible to me, and I still think the courts would reject such cases on First Amendment grounds. But it's hard to see the purpose of the change highlighted by Bader and York unless it was meant to allow prosecutions that go beyond violent criminals to the people who allegedly shape their thinking.