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VAWA Bill Likely To Pass Congress This Week, Despite Violating First Amendment

Congress never lets the Constitution get in the way of passing a law with a catchy title. Thus, the Senate’s version of the bill reauthorizing the Violence Against Women Act will likely pass the House this week, even though UCLA law professor Eugene Volokh, a leading First Amendment scholar, earlier noted that provisions in it violate the First Amendment. (Legal scholars have criticized other provisions in the bill as violating Articles II and III of the Constitution, and for undermining due-process safeguards.) The House GOP had earlier objected to the Senate's version, citing various flaws in the bill, but under political pressure, some GOP members in swing districts have switched sides and endorsed the bill, which is backed by Democratic leaders and the White House.

Professor Volokh has raised First Amendment objections to two provisions contained in the 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 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 newspaper, the Senate’s version of VAWA will likely pass the House by Thursday. I earlier discussed the bill at this link. Regardless of whether VAWA is reauthorized, its existing programs and services will continue to operate under language last updated in 2005.