What a California Proposal to Authorize the Killing of Gays Says About the Initiative Process and the First Amendment

In the space below, we analyze some complicated legal questions arising out of a proposed California initiative—the so-called “Sodomite Suppression Act” (SSA)—whose illegality and immorality are not complicated at all. The SSA seeks to authorize the killing “by bullets to the head or by any other convenient method” of anyone who engages in a sexual act with another person of the same gender. The SSA also seeks to prohibit the distribution of certain communicative materials “aimed at creating an interest in or an acceptance of human sexual relations other than between a man and a woman.”

The SSA is in the very early stages of the California initiative process. It has been submitted, along with the required $200 filing fee, by a Huntington Beach attorney, Matthew McLaughlin, to the California Attorney General so that she may give it a formal name and summary, allowing Mr. McLaughlin to begin hearing public comments on the measure and then to begin gathering the 350,000+ signatures that would be needed to place the measure on a statewide ballot.

Needless to say, the measure will never come before the voters; statewide initiative proponents in California generally need to spend at least a million dollars to collect enough signatures to qualify a measure for the ballot, and we would expect that it would cost much, much more than the normal amount to qualify a measure as outrageous and blatantly unconstitutional as the SSA, even assuming there were enough voters in the state who might sign the petition. Nonetheless, many folks in the Golden State are asking why a mean-spirited and legally frivolous proposal like this should be allowed to proceed at all, and whether there aren’t some reforms to the process that should be made or some discipline of Mr. McLaughlin that should be imposed.

In particular, three suggestions have been made: (1) to raise the filing fee for initiative measures to screen out crackpot filings; (2) to give the Attorney General power to terminate initiative proposals that are unconstitutional and that could never be put into effect even if enacted; and (3) to disbar Mr. McLaughlin. We take each one up in turn.

Raising the Filing Fee

There is no doubt that $200 is a very low filing fee, and that such a low fee does not screen out non-serious proposals. But raising the fee to $500 or $1,000 would not likely weed out many frivolous filers either. A much more radical increase—two California lawmakers have proposed raising the fee from $200 to $8,000—might have a larger deterrent effect; there are many folks who could afford $200 but not $8,000.

The objection to raising the fee so much would likely be that we would then be reserving direct democracy and the initiative device only for the well-heeled. In reality, only wealthy individuals or organizations can make effective use of the initiative even today. This is so because, as noted earlier, it takes a million dollars or more to pay the professional signature collectors needed to amass the hundreds of thousands of signatures required to place a measure on the statewide ballot.

But even if the reality is that initiative campaigns already require a lot of money, raising the front-end filing fee sends a particularly visible and overt message that grass-roots campaigns are not welcome or feasible. And the messages/appearances that laws convey are often more important than underlying realities, especially when it comes to things like access to democracy (and education, for that matter, as one of us has written about in an earlier column). This may be especially true in this modern era when the single biggest criticism of our political system seems to be that moneyed interests have far too much influence over the outcome of political disputes.

Letting the Attorney General Terminate Frivolous Measures

Another possible reform would be to empower the Attorney General’s office to block a measure from appearing on the ballot—indeed to block the measure from being distributed for public comment or for signatures that would qualify the measure—on account of its illegality. California law, as reflected in the 1978 California Supreme Court ruling in Schmitz v. Younger, currently seems not to give such power to the Attorney General. That case involved an attempt by the Attorney General to block a measure concerning schoolteacher strikes and political contributions by schoolteacher organizations from the ballot on the ground that the proposed initiative violated the state constitutional “single subject” requirement (a rule that requires initiatives to be focused on a single subject). A 5-2 majority of the court ruled that the “rights of ministerial officials to impede or delay the initiative process” are “narrowly circumscribed[,]” and that the question of “whether a proposed initiative will be valid if enacted . . . . may involve difficult questions that only a court can determine.” In ruling against the Attorney General’s power to enforce the single-subject rule, the court found that “[t]he duty of the Attorney General to prepare title and summary for a proposed initiative is a ministerial one.” The court went on to observe that the Attorney General perhaps could “challenge the validity of the proposed measure by timely and appropriate legal action,” reinforcing the general message that courts, rather than elected political officials, should be deciding which measures are legally valid and which are not.” (Just two days ago, California Attorney General Kamala Harris’s office announced that it was indeed seeking a judicial declaration of the SSA’s illegality so that no public comment or ballot-access signature gathering would ensue.)Although having to go to a court takes time and resources, and while some analysts may question California’s seemingly firm preference for judicial branch rather than executive branch resolution of a proposed measure’s legality, we would counsel caution before expanding the unilateral power of the Attorney General to block an initiative on the ground of illegality. The SSA is blatantly unconstitutional, but consider some measures closer to the line, such as California’s bans on same-sex marriage (Proposition 8 in 2008), and on race-based affirmative action (Proposition 209 in 1996). One could argue under various Supreme Court precedents that both of these measures are unconstitutional (and the U.S. Supreme Court is likely to find laws like Proposition 8 unconstitutional this summer), but we think it would have been problematic if the California Attorney General, without going to a court, were given power to block either of these measures from proceeding to the signature-gathering stage. Certainly, proponents of direct democracy would have been understandably concerned by such executive interference with the initiative process. Now perhaps power could be given to the AG to block only those measures that are “clearly” illegal, but Californians may not want to risk sliding down the slippery slope that the assignment of such power might create.

Disciplining Mr. McLaughlin

Another reaction to the SSA has been to seek formal discipline of Mr. McLaughlin. According to an LA Times account earlier this week, an online petition at change.org calling for the California State Bar to disbar Mr. McLaughlin—a move that would prevent him from practicing law in the state—had more than 17,000 signatures

We admit that it is difficult when discussing cases like this one to constrain ourselves to write as law professors and to analyze these issues dispassionately under accepted constitutional doctrine and principles. When a speaker seems as devoid of basic human decency as is the author of this initiative, we have to wrestle with our own emotions in discussing what kind of response is constitutionally appropriate. Indeed, we have some hesitation even undertaking a public legal analysis of this episode insofar as such analysis brings further attention to a person who probably craves but who certainly does not deserve it. But the fact that thousands of intelligent people are calling for his disbarment does suggest a “teachable moment” here.

The key fact is that, however loathsome the SSA and its sponsor are, Mr. McLaughlin’s filing of this initiative and his political advocacy of its content are protected speech under the First Amendment. Yes, he is engaged in hate speech. Yes, he advocates violence. But hate speech is not a juridical category of unprotected expression in American constitutional law. It is as protected as any other viewpoint or message. And as the Supreme Court made clear 50 years ago in Brandenburg v. Ohio, the advocacy of violence is protected speech unless it is intended and reasonably likely to incite imminent unlawful conduct. Abstract advocacy, however vile, is fully protected speech. Thus, the American Nazi Party, a purveyor of genocide, was allowed to march through the streets of Skokie, Illinois, to the horror of many concentration camp survivors who lived in that community. For the same reason the Ku Klux Klan, a racist organization whose history is drenched in African American blood, is permitted to hold rallies espousing its cause.

The central issue for First Amendment purposes in hate speech and incitement cases is whether there is time for the polity to evaluate such messages and respond to evil speech with the condemnation that it deserves. If so, counter-speech is the appropriate remedy, and punishing or silencing the speaker is not. In the present episode, when the speech in question proposes an initiative that will have to be circulated to obtain signatures to place it on the ballot and then (in the unlikely event there are enough signatures) be voted upon, there is clearly ample time to respond to this message in the harshest terms.

If the author of this initiative were a public employee, a different analysis might apply. Acting as an employer, the government in some circumstances has the lawful power to discipline and sanction its employees for speech that would be immune from discipline if it were expressed by a private citizen. While lawyers may be officers of the court in some ethical sense, they are not public employees. This is private speech by a private citizen.

It is true that as a lawyer, the author of this initiative is a licensed member of a highly regulated profession. It is also the case that the government has the authority to regulate professional conduct even when doing so involves the regulation of speech. We argued in a previous column that California’s law prohibiting licensed health care providers from providing so called “gay conversion” therapy treatment to minors was constitutional, notwithstanding the fact that conversion therapy largely involved speech. In that instance, however, what was being regulated was the practice of the profession—the professional treatment provided to a paying patient by his or her therapist. By analogy, an attorney can be disciplined for speech uttered in the course of practicing law, when that speech violates the rules of professional responsibility administered by the Bar.

But Mr. McLaughlin was not practicing law, on behalf of himself or a client, when he filed the SSA. He was acting as a private citizen exercising a political right extended to all private citizens without regard to their profession. The fact that he happens to be a lawyer is really irrelevant to what he did, or why we’d like to be able to punish him. Plenty of lawyers have outrageous political views, but that doesn’t make them any less inherently capable of fulfilling their professional duties. Because Mr. McLaughlin hasn’t done anything—he hasn’t been accused of committing anti-gay violence himself or even discriminating against gays or anyone else in his practice—but instead has merely engaged in protected expression, the government (including the State Bar) cannot punish him consistent with First Amendment principles.

Consider, again, the health profession analogy. While a physician may be disciplined for treating a patient with a discredited and prohibited medical procedure such as conversion therapy—because that is professional conduct that goes beyond mere protected expression—he could not be punished by the State Medical Board for submitting a ballot initiative that sought to change state regulations to allow health care providers to treat young gay and lesbian patients by “converting” them to a heterosexual orientation.

The courts have left little doubt that lawyers cannot be deprived of their livelihood because they express speech as citizens that society rejects as inappropriate, wrongful or evil. In Republican Party of Minnesota v. White, the U.S. Supreme Court struck down a state law that regulated the speech of lawyers running for judicial office and threatened them with disbarment. While the speech at issue in that case was benign and cannot be compared to the hateful expression here, the core principle is the same. Government violates the First Amendment when it threatens to disbar an attorney for expressing political speech in his capacity as a citizen.

In a case that is even more on point, Siegel v. Committee of Bar Examiners, the California Supreme Court reviewed the State Bar’s decision to deny admission to an otherwise qualified applicant because he had allegedly lied to the Examiners in denying that several speeches he had made advocated unlawful violence. Although the narrow question before the court was whether the applicant had lied about advocating unlawful violence, and whether he could be rejected by the Bar based on any such lies, the court made it clear that any disciplinary proceeding that required a applicant for admission to the bar to defend the substantive reasonableness of statements he had made as a citizen on political matters was fraught with serious First Amendment concerns. Denying someone admission to a profession because of his speech necessarily created chilling effects that undermined freedom of speech. That concern would seem to be even stronger when a practicing lawyer, who has already been admitted to the Bar, may lose his livelihood because of popular opposition to his political speech.

Ultimately, it is no answer to this concern to point out that Mr. McLaughlin’s expression has no redeeming value. The next case may involve other speech that is susceptible to more nuanced interpretations. We rely on the First Amendment because we do not trust government to distinguish between good or bad, prohibited or permissible speech. We ignore that truism at our peril when we think that some speech is so obviously and uniquely malevolent that we can punish it without risking the sanctioning of other speech. It is easy to call for the punishment of speech that takes the form of an initiative that is so despicable in its content and so deserving of condemnation. But in the realm of the First Amendment, we have rejected the notion that government can discern beneficial censorship from the harmful kind.