Law & Principles

Stop criminalizing speech

Ryan Haynie | March 21, 2024

President Joe Biden’s appointment to the United States Supreme Court has made headlines again. On Monday, Justice Ketanji Brown Jackson said, “My biggest concern is that your view has the First Amendment hamstringing the government in significant ways.” The case was Murthy v. Missouri, and the Court was asked to decide whether the Biden administration violated the First Amendment when it pressured social media companies to moderate content the Biden administration deemed harmful. 

While I agree with Billy Binion at Reason that Justice Jackson’s comments were taken out of context, the quote has at least served to start a national conversation on the First Amendment. And given some of the bills we saw introduced this legislative session, it’s a conversation we need to have in Oklahoma. Below are two bills illustrative of the disregard some lawmakers have taken concerning the First Amendment.

SB 1100

Senate Bill 1100 seeks to criminalize speech that leads to the suicide of another person. And while that may seem like a good idea, some courts have found such a law to be constitutionally overbroad. In 2014, the Supreme Court of Minnesota upheld a law prohibiting assisting suicide but struck down the section on encouraging or advising. It noted, “[s]peech in support of suicide, however distasteful, is an expression of a viewpoint on a matter of public concern, and, given current U.S. Supreme Court First Amendment jurisprudence, is therefore entitled to special protection.” 

But SB 1100 doesn’t stop there. The bill would also criminalize the same speech if suicide is attempted. Furthermore, the only qualification for attempted suicide is that there not be a suicide. The smallest act of self-harm could be treated as a suicide and anyone who may have said a mean word could be punished as though the individual did commit suicide. 

Courts frequently protect a broad array of speech—including speech many of us find distasteful—in order to ensure the maximum level of speech is protected. This is especially important when the government would use criminal penalties to punish otherwise protected speech. Criminalizing speech in the way SB 1100 does threatens all of our speech.

HB 3073

House Bill 3073 also seeks to use the criminal law to punish speech in the form of media created by artificial intelligence. Just as with SB 1100, the First Amendment protects a lot of deceptive speech that HB 3073 would criminalize. It also creates a weird distinction where expression generated by AI would result in a criminal conviction while the same expression not utilizing AI wouldn’t even draw a civil lawsuit—with a much lower standard of proof. 

Unlike defamation law, which has higher protections for speech directed at public figures, HB 3073 draws no such distinction and would therefore criminalize conduct that isn’t even defamatory. It further punishes people who publish an AI-generated image even if they had no idea it was created by AI. The bill would require disclosure when publishing such an image, which is an unconstitutional prior restraint. And it wouldn’t do any good as people who lie are unlikely to disclose their lying, leading others to think it must be true if it doesn’t have the disclosure!

While Oklahoma conservatives may be quick to pile on Justice Jackson—and her words could have been chosen more carefully—their lawmakers often show as much, if not more, disregard for free speech and expression. Using criminal penalties for protected speech should never be the default for lawmakers—even for speech we don’t like. Hopefully, the second half of the legislative session will demonstrate more respect for free speech.

Ryan Haynie Criminal Justice Reform Fellow

Ryan Haynie

Criminal Justice Reform Fellow

Ryan Haynie serves as the Criminal Justice Reform Fellow for the Oklahoma Council of Public Affairs. Prior to joining OCPA, he practiced law in Oklahoma City. His work included representing the criminally accused in state and federal courts. Ryan is active in the Federalist Society, serving as the Programming Director for the Oklahoma City Lawyer’s Chapter. He holds a B.B.A. from the University of Oklahoma and a J.D. from the University of Oklahoma College of Law. He and his wife, Jaclyn, live in Oklahoma City with their three children.

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