Several people have pointed me to a July 26, 2012 video excerpt of Rep. Trent Franks questioning Thomas Perez (the Assistant Attorney General for the Civil Rights Division) about whether the Justice Department would commit to “never entertain or advance a proposal that criminalizes speech against any religion”; Perez, it was claimed, refused to commit to this. A Daily Caller piece from July 27, 2012 characterizes Perez’s testimony the same way. Here’s the video excerpt:
It was pretty hard for me to figure out Mr. Perez’s views from the excerpt, though, since Rep. Franks kept interrupting him; and in any event, I thought it would be good to look at a transcript of the entire hearing. And it turns out that the transcript tells a rather different story: Later in the hearing, Mr. Perez expressly agreed that so-called “hate speech” can’t generally be criminalized, though he noted that “threats of violence” are constitutionally unprotected. (Note that federal law already generally bans threats of force intended to obstruct the free exercise of religious beliefs, see 18 U.S.C. § 247.)
I thought I’d note this, and post the relevant parts of the transcript (full video here), since I suspect that many of our readers have seen the video excerpt but not the longer transcript. First, here’s some earlier material that explains Rep. Franks’ concern; Rep. Franks is quoting an Oct. 21, 2011 Daily Caller article:
REP. FRANKS: … I’m going to read an opening paragraph of a daily article from October 21st, 2011.
Quote: “Top Justice Department officials convened a meeting Wednesday where invited Islamist advocates lobbied them for cutbacks in terror funding, changes in agents’ training manuals, additional curbs on investigators, and a legal declaration that U.S. citizens’ criticism of Islam constitutes racial discrimination.
“The department’s” — quote — “‘civil rights lawyers are top of the line. I say this with utter honesty. I know they can come up with a way’” — unquote — “to redefine criticism as” — I’m sorry — “to redefine criticism as discrimination, said Sahar Aziz, a female Egyptian-American lawyer.”
You then responded — quote — “‘We must continue to have the open and honest and critical dialogue that you saw in the robust debate,’ Perez responded in an enthusiastic closing speech a few minutes after Aziz made her demands at the event. ‘I sat here the entire time, taking notes,’ Perez said. ‘I have some very concrete thoughts in the aftermath of this.’”
What were the concrete thoughts after the meeting with, among others, a leader of an unindicted coconspirator organization and the largest terror-financed trial in history after hearing a blatantly unconstitutional proposal to destroy First Amendment free rights speech of Americans by outlawing criticism of a religion?
According to the article, no one at Justice — including you — objected to this call to abrogate free speech. You know, Americans would be shocked to learn that their Justice officials and unindicted coconspirators in a terrorism trial huddled together to discuss ways to take away Americans’ freedom of speech.
Will you tell us here today — and I apologize for having to hurry — will you tell us here today that this administration’s Department of Justice will never again entertain or advance a proposal that criminalizes speech against any religion?
MR. PEREZ: Sir, I’m not familiar with the context that you describe and the article. I have not seen that article. What I –
REP. FRANKS: Are you familiar with the meeting there at all?
MR. PEREZ: Pardon me?
REP. FRANKS: You’re not familiar with the meeting that the article –
MR. PEREZ: I would need to read the article in order to understand the context of the article. What I can tell you is that the Department of Justice aggressively enforces all of the civil rights laws, including laws that protect religions minorities. And we will –
REP. NADLER: Point of order, Mr. Chairman? Point of order, Mr. Chairman.
REP. FRANKS: My time is expired.
Now on to the exchange that was on the video, which happened a bit later in the hearing:
REP. FRANKS: So let me just recap here on that one. Will you tell us here today simply that this administration’s Department of Justice will never entertain or advance a proposal that criminalizes speech against any religion?
MR. PEREZ: Sir, I want to — as I said before, you referenced as context for your question an article from –
REP. FRANKS: Well, there’s no context on this question. I’m just asking you –
MR. PEREZ: Well, there actually was.
REP. FRANKS: — I’m just asking you — well, all right; let me ask a new question. Will you tell us here today that this administration’s Department of Justice will never entertain or advance a proposal that criminalizes speech against any religion?
MR. PEREZ: Well, again, sir, if you –
REP. FRANKS: Well, that’s not a hard question, Mr. Perez.
MR. PEREZ: Well, actually it is a hard question in the sense that –
REP. FRANKS: Well, if it –
MR. PEREZ: — when you make threats against someone — I’m going to kill you — that –
REP. FRANKS: No, I’m asking you here today, will you tell us here today that this Department of Justice will never entertain or advance a proposal to criminalize speech against any religion?
MR. PEREZ: Again, sir, if you — if you have a proposal that you are considering, we will actively review that proposal and offer –
REP. FRANKS: OK, here my proposal. Here’s my proposal. I’m asking you to answer a question. That’s my proposal. I’m proposing that you answer this question. Will you tell us here today that this administration’s Department of Justice will never entertain or advance a proposal that criminalizes speech against any religion?
MR. PEREZ: Again, sir, if you give the context of the question –
REP. FRANKS: All right.
REP. NADLER: Mr. Chairman — would the gentleman yield for a second? (Cross talk.)
REP. FRANKS: I will not yield, but I will let the gentleman –
REP. NADLER: I think I can — we can straighten this out.
REP. FRANKS: I will not yield. I will — I will not –
REP. NADLER: Well, you’re not interested in an answer then?
REP. FRANKS: I’ve tried to get an answer four times.
REP. NADLER: If I rephrase the question, you may get –
REP. FRANKS: I appreciate that, but I’m asking my own questions, and I’ll certainly allow you to ask yours.
And now here’s a later point (starting at about 49:10 in the video), where Perez seems to make clear that the Justice Department indeed does view “hate speech” as constitutionally protected, except when it consists of religion-based threats, which are already criminal (see, e.g., 18 U.S.C. § 247):
REP. NADLER: Thank you. I’ll be very brief. I want to rephrase a question, make a — the question the chairman asked a little differently.
First of all, hate speech and hate crimes are very different topics. My question to you is, would — I would assume that the department would make a commitment that you’re not going to offer a proposal to criminalize protected speech, to criminalize criticism of religion or of anybody else other than in the context of a direct threat.
MR. PEREZ: Right. We will do — we will do this work, as we always have, in a way that is consistent with the Constitution.
REP. NADLER: Which means you cannot criminalize hate speech.
[Someone off-screen]: Hate speech.
MR. PEREZ: Correct, and we’ve — I –
REP. NADLER: Other than — other than with a direct threat of violence or something like that.
MR. PEREZ: And as a matter of fact, our hate crimes laws say whoever by force of threat of force intimidates or attempts to intimidate someone on the basis of race, color, all the protected classes –
REP. NADLER: So you’re not in — short of intimidation and threats of violence and so forth, you’re not endorsing a concept that says you cannot criminalize — I’m sorry — you cannot criticize someone’s religion or anything else.
MR. PEREZ: You can certainly — we strongly support the First Amendment. And at the same time, we strongly support the prosecution of people who use threats of violence to undermine and tear communities apart on racial lines, sexual orientation lines, religious lines.
Now I can’t tell what’s in Mr. Perez’s heart, but what I see here is Perez agreeing that “hate speech” can’t be criminalized, but stating (correctly) that threats can be.