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The natural progress of things is for liberty to yield and government to gain ground. —THOMAS JEFFERSON, 1788

VAWA to be reauthorized with new provisions that violate free speech

Violence-Against-Women-Act-VAWA-rallyCongress seldom lets the Constitution get in the way of passing a law with an appealing title. Thus, the Senate’s version of the bill reauthorizing the Violence Against Women Act will likely pass the House tomorrow, even though UCLA law professor Eugene Volokh, a leading constitutional scholar, earlier pointed out that provisions in it violate the First Amendment. (Legal scholars have criticized other provisions in the bill for violating Articles II and III of the Constitution, and for undermining due-process safeguards.)

House Republicans had earlier objected to the Senate’s version, citing various flaws in the bill, but under political pressure, some Republicans in swing districts have switched sides and endorsed the bill, which is backed by Democratic leaders and the White House.

Professor Volokh raised First Amendment objections to two provisions contained in the Senate VAWA reauthorization, arguing that they violate constitutional free speech guarantees (see here for his first and second posts). One of those changes expands overly-broad “stalking” provisions that were used unsuccessfully to prosecute a Twitter user for repeatedly criticizing a religious leader, speech that a federal district court ruled was protected by the First Amendment in United States v. Cassidy (2011). (Volokh is one of the law professors most frequently cited by judges, and the author of First Amendment textbooks, such as The First Amendment and Related Statutes (4th ed. 2011).)

According to The Hill, the Senate’s version of VAWA will nevertheless likely pass the House on Thursday, after having earlier passed the Democratic-controlled Senate.  I earlier discussed constitutional the bill’s constitutional problems at this link. Regardless of whether VAWA is reauthorized, its existing programs and services will continue to operate under language last updated in 2005.

Hans Bader

Hans Bader is Counsel at the Competitive Enterprise Institute in Washington. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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