PEACE Act clumsily tries to fix a loophole and harms free speech

Cameron Smith

Columnist

USA TODAY NETWORK – TENN.

The Constitution demands that Tennessee’s government tolerate hateful speech. We might not agree with what someone says, but American civil liberties hinge on us defending the right to say it.

The Constitution’s threshold for laws restricting speech is quite high, and Tennessee House Bill 55/Senate Bill 30, also known as the Protecting Everyone Against Crime and Extremism (PEACE) Act, needs some work.

Gov. Bill Lee should send it back to the drawing board.

House majority leaders explains his support for PEACE Act

In 2024, demonstrations by hate groups included distributed anti-Jewish literature to synagogue congregants and holding signs with hateful messages on an overpass. Such speech and behavior in question deserve our condemnation, but we should be cautious about government restraint.

The PEACE Act, sponsored by state House Majority Leader William Lamberth, R-Portland, and state Sen. Mark Pody, R-Lebanon, creates a new Class A misdemeanor for littering and trespassing with hateful intent to 'unlawfully intimidate another from the free exercise or enjoyment of any right or privilege secured by the constitution or laws of the state of Tennessee.'

I spoke to Lamberth about his motives for introducing the measure. 'Tennessee is a law-and-order state, and we’re committed to protecting our citizens’ safety,' he said. 'The PEACE Act aims to deter hate crimes by giving law enforcement additional tools to ensure that individuals who harass or target others based on their identity or beliefs are held accountable.'

The PEACE Act criminalizes conduct that is somewhere between common misdemeanors and a full-blown felony. The endeavor walks a fine line between content-neutral laws that limit political protests to certain times, places and manners and content-based restrictions that rarely survive legal review.

Littering and trespassing are already crimes because they infringe on the right to enjoy public spaces and own private property. Lamberth insists that legislators must address a gap in Tennessee law. 'Yes, littering and trespassing are already criminal offenses,' he said. 'The PEACE ACT simply adds a Class A misdemeanor offense when the act is deliberately intended to intimidate or prevent someone from exercising their civil rights, such as religious freedom or ability to vote.'

Amended bill got better, but problems remain

If the aggravating factor for enhancing litter and trespass into another crime is speech, then speech is effectively being criminalized. That won’t pass constitutional muster. As drafted, one discarded flyer with hateful intent might be enough to charge the enhanced crime.

A better path would be creating a civil cause of action for individuals who are victimized by such hateful conduct to sue the perpetrators and anyone who might be backing them financially for damages. It’s a fair way to compensate folks for harm and determine the difference between littering and activity that is far more insidious.

HB55 also creates the right for law enforcement to create a 25-foot buffer zone 'in the execution of the officer's official duties after the officer has ordered the person to stop approaching or to retreat.' The original language was so broad that any on-duty officer would have the ability to create a 25-foot buffer zone at will.

The amended bill before Lee adds the requirement that the official duties involve a traffic stop, investigation of a crime, or an ongoing and immediate threat to public safety. This change is a major improvement. Officers shouldn’t have to worry about crowd control while arresting an individual or issuing a citation.

'You can be present, say and record anything you want - that is your constitutional right,' said Lamberth, 'but you can’t hinder or interfere when a police officer is carrying out their official duties.'

The proposal comes from good intentions, but it is flawed

The last provision of the bill that warrants discussion is criminalizing 'attaching a sign, signal or other marking to a bridge, overpass, or tunnel.' The offense would become a Class B misdemeanor.

Obviously, the state has the constitutional power to regulate signage, but the provision seems focused on a particular fact pattern instead of general applicability. Do Tennesseans need government permission to welcome home a veteran with a banner along a bridge?

Lamberth’s perspective on such signage is clear. 'Hanging signs over bridges and overpasses can cover existing signage and only serves as a distraction that puts everyone on the road at risk,' he said.

The PEACE Act undeniably improved over the legislative session, but lawmakers and the governor have an obligation to protect our civil liberties over our momentary discomfort.

The state government cannot and should not insulate us from speech which makes us uncomfortable or with which we disagree. As such, the Peace Act needs another look before becoming law.

USA TODAY Network Tennessee Columnist Cameron Smith is a Memphis-born, Brentwood-raised recovering political attorney raising four boys in Nolensville with his particularly patient wife, Justine. Direct outrage or agreement to smith.david.cameron@gmail.com or @DCameronSmith on Twitter. Agree or disagree? Send a letter to the editor to letters@tennessean.com