Free Speech

Newark Proposed Ordinance Would Ban "All Actions by Hate Groups"

Yes, literally ban.

|The Volokh Conspiracy |

Here's the proposal, in relevant part (filed Thursday):

"Hate Group" means a social group that advocates and practices hatred, hostility, or violence towards members of a race, ethnicity, nation, religion, gender, gender identity or sexual orientation.

All actions by hate groups including groups characterized as White Supremacists, Nazi Groups, Aryan Nations the KKK and other such groups are unlawful in the City of Newark and are hereby banned because they have a history of violence targeting individuals' race, religion and national origin. Their history of said violence, tied to their message, will incite panic and fear within the City of Newark.

Well, except that:

[1.] The government can't ban even actions by people connected to groups that have present violent aims. Group membership can be forbidden only if the government shows "a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims" (Healy v. James (1972)). Especially when a national group "is loosely organized, having various factions and promoting a number of diverse social and political views, only some of which call for unlawful action," a local group connected to it (e.g., through sharing the national group's name and general ideology) can't be banned simply because of that connection.

[2.] Nor can such groups' activities (which of course include demonstrations and other constitutionally protected speech) be banned because they "will incite panic and fear."  There is no First Amendment exception for speech that "incite[s] panic and fear" generally. (There is an exception for speech that is intended to and likely to incite imminent illegal conduct, but obviously the proposal isn't limited to that.)

[3.] But the proposal is to ban "[a]ll action by hate groups," not just by groups "characterized as White Supremacists, Nazi Groups, Aryan Nations[,] the KKK and other such groups." That means that any group that, among other things, "advocates and practices hostility … towards members of a race, ethnicity, nation, religion, gender, gender identity or sexual orientation" is forbidden. Any group that urges hostility towards men, or whites, or evangelical Christians, or women, or blacks, or pro-holy-war Muslims would be forbidden, even if the group doesn't actually engage in violence. Such a ban is obviously categorically unconstitutional.

[4.] Of course, the government has ample power to restrict actual violence, whether or not it targets race or religion. It has ample power to punish people who conspire to commit violence, which is to say people who agree to commit violence together, with the intent of promoting such violence. It just can't ban groups on the grounds that they have a bad "message."

Thanks to Larry Seltzer for the pointer; see also this story from NJ.com (Chris Sheldon). Special bonus from the draft ordinance: "WHEREAS, the Newark 1967 riots were triggered [in part] by … the death of Dr. Martin Luther King, Jr."

NEXT: Florida's Schools Have Become a High-Stakes Experiment in Classroom Policing 

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  1. Scary…

  2. Dos this include acts of contrition?

    Mr. D.

    1. *Does*
      (mea maxima culpa)

      1. You have spotted the very first constitutional problem here- it’s ridiculously vague.

    2. Yup. Disbanding, too.

  3. “Hate Group” means a social group that advocates and practices hatred, hostility, or violence towards members of a race, ethnicity, nation, religion, gender, gender identity or sexual orientation.”

    Sounds like the democratic party to an old white straight Christian male . . .

  4. Speaking of bans . . . Artie Ray Lee Wayne Jim-Bob Kirkland, still banned by the Volokh Conspiracy Board of Censors for making fun of conservatives (a bit too deftly, apparently).

    1. Deftly? You give yourself way too much credit.

      1. Why would Artie have been banned if he didn’t parody conservatives effectively?

    2. Like 500 lawyers at the bottom of the sea, a good first step.

    3. Didn’t you admit this was like 9 years ago?

      1. What is the limitation period in this context?

        How long after engaging in a series of viewpoint-driven censorships must a professor wait before others are not to mention the hypocrisy of criticizing others for similar censorship?

        Thank you.

  5. “WHEREAS, the Newark 1967 riots were triggered in part… by the death of Martin Luther King, Jr.”

    Scriveners’ error, good faith historical mistake, or something else?

    1. Causation is a tool of white supremacy.

    2. People were sharp back in the day, very very sharp, … precog sharp.

      Not a scrivener’s error, the ’67 Newark riots were a thing.

  6. Doesn’t their definition lack something important?

    “Hate Group” means a social group that advocates and practices hatred, hostility, or violence towards members of a race, ethnicity, nation, religion, gender, gender identity or sexual orientation.

    shouldn’t it state that it’s a group that advocates and practices violence towards members of a race etc because of their membership in the race etc?

    Any group that advocates hostility against anyone is advocating hostility against members of a race, since everyone is a member of a race.

  7. Would Antifa get banned – Nope!

    its not a hate group

    1. Funny how that works, isn’t it? The drafters of the ordinance obviously did NOT want to prohibit ALL dissemination and advocacy of hostility. Some forms of hostility against SOME groups have to be protected. Am I right?

  8. It would ban, among other things, any action by the Catholic Church, would it not?

  9. No act of latent stupidity and ignorance surprises me when it comes to the People’s Progressive Republic of NJ. Nothing.

    We truly deserve the representation we elect.

  10. Wouldn’t the “incite(s) panic and fear” clause cover the case of true threats, which can be banned?

    1. A ban limited to true threats, and not specifically focused on allegedly bigoted threats (which would be unconstitutionally selective, see R.A.V. v. City of St. Paul) would be constitutionally permissible. Indeed, New Jersey law already bans many such threats. But this ban is deliberately not limited to such true threats.

  11. Rough times ahead in Newark for members of the Muslim religion, Palestinian statehood advocates, Black Lives Matter, Antifa, NYT employees and other Democrat affiliates.

  12. Alternatively, could we ban all actions by the City Council of Newark? After all, they are clearly advocating and practicing hostility (and even, through their use of police, violence) towards members of various of those groups.

    I suppose they left themselves a loophole by limiting this law to “social groups”. So maybe we can’t get them banned until after their summer picnic.

    Or maybe we could just make individual lawmakers financial responsible for the costs of defending their laws whenever a law is found to be unconstitutional.

  13. Naturally, the NJ.com story doesn’t suggest the slightest possibility that there might be something problematic about the ordinance. It’s all, “Yay team, white supremacists bad!”

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