It is now illegal to threaten to call the immigration authorities on an undocumented person or to refer to said person as an “illegal alien” in New York City.
The city’s Commission on Human Rights issued a 29-page directive last week explaining the new rules, which apply to workplaces, public accommodations, and housing. The punishment for violations includes fines of up to $250,000 per offense, according to the New York Post. But here’s the catch: To take action against a so-called perpetrator, the city must first prove his or her actions were motivated by hate.
The new guidance claims that “use of the term ‘illegal alien,’ among others, when used with intent to demean, humiliate, or harass a person, is illegal under the law.”
The key word being “intent.” The city is no longer content to police speech; it is now policing the meaning behind speech. Because of this, the law will likely be challenged as a violation of the First Amendment.
Typical anti-discrimination and anti-harassment laws provide limiting conditions, thanks to existing Supreme Court precedent. These conditions require evidence of “severe or pervasive” conduct that can “objectively” prove harassment or discrimination, as Hans Bader, an attorney and former official in the Education Department’s Office for Civil Rights, noted.
New York City’s new guidance goes a step further, making it clear that evidence of “severity or pervasive” conduct is “only relevant to the damages” caused by said conduct. This leaves the door wide open for city officials to interpret politically incorrect statements as they see fit, stripping anti-discrimination statutes of objectivity and allowing bureaucrats and victims alike to claim subjective “damages” where there might not be any.
The purpose of the law is understandable, given the rise of anti-immigration rhetoric the city has experienced over the last couple of years. But legislating intent is undoubtedly a violation of free speech. Further, there’s a big difference between what you should say and what you can say. Should residents threaten to call immigration authorities over minute disagreements? Morally, no. Legally, yes.
New York City has made it clear that it’s no longer merely concerned with what you said; they’re also concerned with what you meant. But the city’s Human Rights commission is not the adjudicator of hate, nor should it be.
