You state that “you don’t see the misinformation in there, only an objection” in the SMS message “Biden is sending goons DOOR-TO-DOOR to make you take a Covid-19 vaccine. Sign the petition to: No medical raids in America.”

An objective reading of the words ‘goons’, ‘make’ and ‘medical raids’ should lead one to believe that they are clearly meant to convey a message that Biden’s program is designed to send federal government representatives to people’s homes on unlawful raids to force people into receiving vaccinations, even if against their will. However, in reality, the actual program is designed to work in cooperation with volunteers and local authorities to provide door-to-door outreach to un-vaccinated regions. This mischaracterization of the program amounts to a misinformation campaign and serves only to hamper initiatives to bring the pandemic under control. And dealing with the effects of misinformation campaigns during a public health emergency is a legitimate concern for the Biden administration and public health officials.

However, I’m in agreement with you that asking telecoms to filter SMS messages based on content is problematic. Doing so would likely run afoul of common carrier laws unless exemptions exist, or could be carved out, for public health emergencies. The Biden may need to explore other options for countering these types of messages.

I think you mischaracterize the new hate speech bill, though it is probably pretty scary even when read correctly.

However, on the ‘pre-crime’ stuff: the application based on fear (on reasonable grounds) has to be brought with the approval of the Attorney General. That approval is not easily got. Prosecution for hate crimes today needs AG consent, and rights groups complain that the AG does not consent often enough.
(That’s probably just as well.)

If the complaint is brought, with the approval of the AG, then a judge may order the parties – not just the person with the fear but the person who is alleged to be causing the fear – to appear before the judge. ‘may order’ because the judge may just decide there’s nothing to the allegation. But the judge will not order a recognizance without a hearing. So the person gets a day in court at this stage, not simply at the appeal level, as your column suggests.

Also, a recognizance is normally just a serious promise not to commit an offence (again, or in the first place). There could be a pledge of assets to secure compliance, in some cases.

The recognizance may be accompanied by the other measures you mention only if the person has already committed an offence of the kind that is now alleged to be feared.

The recognizance lasts a year, but may be extended to two. BUT the jail for breaching it or refusing to give it is for a maximum (not a fixed term) of one year, not two. It could be a month, or a week, or renewable up to a year if the refusal persists.
Already pretty drastic, so you don’t really have to double it up to make it worse. It would be freakishly rare for the other conditions of a recognizance to be required, and only for someone who is found by the judge to be likely to do something very serious and whose promise can’t be trusted on its own.

It is still a good question whether any of this is really needed. Do we have a lot of threats to commit hate crimes that lead to reasonable fears?

Where recognizances are now commonly used are in family disputes, to keep abusive spouses (almost all men) away from their spouse (almost all women) where there are threats of violence. Such recognizances too often do not work, and the spouses are killed anyway. So figuring out how to beef them up so they work is a good thing – but it would make sense to start this stuff in the family cases where there are lots of documented cases of failure, not in the speculative area of offences of hatred. There are such cases, but not with the depressing regularity of family violence.

Hate speech up to now has usually involved incitement to violence against the targets, not just general mental states of vilification etc. The language of the bill is intended to reserve its use to extreme cases – and there are extreme cases out there. Reasonable people may disagree on when extreme hatred should be a crime. How clearly does one need to foresee that someone will drive a truck into a crowd or into a family before taking measures to stop them? pretty clearly, but arguably not never.

Cheers