Washington state bill set to create statewide bias response teams with law enforcement powers fails in committee

FIRE is pleased to announce an important legislative victory for free speech in Washington state. Senate Bill 5427, which would have created a bias reporting system for the entire state, failed to advance out of the Senate Ways and Means committee. FIRE Legislative Counsel John Coleman testified against the bill in a February 20 hearing. 

SB 5427 would have required the attorney general’s office to oversee a statewide hotline for residents to report “bias incidents,” defined as: 

a person’s hostile expression of animus toward another person, relating to the other person’s actual or perceived race, color, religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, or mental, physical, or sensory disability, of which criminal investigation or prosecution is impossible or inappropriate.

In addition, the bill would have allowed the attorney general’s office to provide compensation “up to a maximum of $2,000 per person targeted or affected by a specific hate crime or bias incident,” and required that all bias incidents be referred to law enforcement: 

Whenever a hate crime or bias incident is reported to the hate crimes and bias incidents hotline by a member of the public, the hotline shall promptly share information concerning the incident, location, date, and real or perceived affected protected class, of the hate crime or bias incident with the primary local law enforcement agency of the jurisdiction in which the hate crime or bias incident occurred. 

As John mentioned during his testimony, the bill’s definition of “bias incident” covers expression, not conduct, so the bill would have required the hotline to report allegations, including those regarding protected speech, to law enforcement. Furthermore, the bill would have effectively deputized speech police, because it incentivized people to report speech by enabling the government to give financial rewards to complainants. 

FIRE has seen bias response teams abuse their authority on college campuses throughout the country. As Coleman emphasized in his testimony, when challenged in lawsuits, federal appellate courts have held that campus bias response teams that involve law enforcement or have the authority to refer cases to law enforcement — similar to the hotline this bill sought to create — pose a threat to free expression by chilling protected speech. 

FIRE appreciates the Washington state legislators’ decision not to infringe upon their constituents’ free speech rights. 

For example, in Speech First v. Schlissel, the U.S. Court of Appeals for the Sixth Circuit held that because the University of Michigan’s bias response team possessed the power to refer incidents to the police or university disciplinary offices, its operation threatened students’ protected speech. Likewise, in Speech First v. Fenves, the U.S. Court of Appeals for the Fifth Circuit held that a bias policy enforced by referrals for discipline was “sufficiently proscriptive to objectively chill student speech” at the University of Texas at Austin. 

Creating what are essentially off-campus bias response teams for the entire state of Washington, complete with the capacity to involve law enforcement, invited the same threats to freedom of expression as identified in these on-campus cases.

The bill also stated that the hotline “shall anonymize the information it shares such that the person targeted or affected by the hate crime or bias incident cannot be identified unless the targeted or affected person consents to being identified,” but offered no analogous protection to the accused. Inviting law enforcement to investigate “bias incidents” reported through the hotline without anonymizing the information about the alleged perpetrators in all contexts would have amplified the chilling effect of this bill’s proposed reporting system.

FIRE appreciates the Washington state legislators’ decision not to infringe upon their constituents’ free speech rights.