Posted by Eugene Volokh:
Fliers With Person's Picture + "God Hates Fags" = Felony:
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1180029419
That seems to be the theory of [1]this prosecution in Illinois:
A 16-year-old Crystal Lake girl facing a felony hate crime charge
alleging she and a friend distributed anti-homosexual fliers at her
high school must remain locked up until her case goes to trial, a
McHenry County judge ruled Tuesday.
Citing concerns over the girl�s home environment and her already
lengthy juvenile record, Judge Michael Chmiel denied the girl�s
request for home detention.... The girl�s record, Chmiel said,
features 13 contacts with police, including an arrest for marijuana
possession in August....
She and her 16-year-old friend each face charges of hate crime,
disorderly conduct and resisting a peace officer stemming from
their arrest May 11 outside Crystal Lake South High School. The
charges allege the girls were distributing fliers showing two men
kissing and containing inflammatory language toward homosexuals....
The fliers show two men kissing -- one of them apparently "a male
classmate[,] and neighbor of one of the girls[,] with whom they had
been feuding" -- coupled with the words "[2]God hates fags."
The other girl was let out on house arrest (she's being electronically
monitored, and can only go to "school, counseling, work or other
activities approved by a probation officer." Her lawyer, Charles
McKenney, is quoted as saying, "I believe [the prosecution] more
attacks the speech, and at this point, they haven�t shown what conduct
was truly disorderly."
This strikes me as a very serious First Amendment problem. Hate crime
laws that apply harsher punishment to people who commit assault,
murder, or other crimes are generally [3]constitutional (though I
think they're generally misguided as a policy matter). Hate crime laws
that apply harsher punishment to bias-motivated threats, face-to-face
insults that are likely to provoke an immediate fight (so-called
"fighting words"), and other unprotected speech, might be
constitutional; compare [4]Wisconsin v. Mitchell with [5]R.A.V. v.
City of St. Paul.
But here the speech does not fit within any existing exception. It's
contemptible and offensive, but it is not sufficiently clearly
threatening to fit within the exception for [6]true threats, it's not
a [7]face-to-face insult likely to cause immediate violence, and it
doesn't fit within any other existing exception to constitutional
protection.
Calling it "harassment," "breach of the peace," "disorderly conduct,"
or "intentional infliction of emotional distress" is just labeling,
and doesn't explain which First Amendment exception strips the words
of protection. If anything, it highlights the vagueness of the legal
theory under which the prosecution is operating, since these terms do
not clearly define which speech will be punished by the law, and thus
pose the [8]three related problems of vague speech restrictions: lack
of fair notice to speakers, risk of discriminatorily viewpoint-based
enforcement, and tendency to deter speech. It's not just about "God
Hates Fags"; if those words can be made a felony under one of these
vague rationales, a wide (and unpredictable) range of other words
could be punished as well.
So here it does seem like "hate crime" laws are being used as a speech
code, and a speech code that makes the speaker into a criminal -- in
fact, given the nature of hate crimes enhancements, a felon -- rather
than justing lead to administrative punishment of high school students
(which might be appropriate here, if the speech causes a disruption at
school, though there's some uncertainty about whether that's covered
by [9]Tinker). Unless there are some facts here that are missing from
the news coverage, this prosecution strikes me as a clear and serious
constitutional violation. And it is evidence that fears that "hate
crimes" laws will become "hate speech" bans are not implausible.
Thanks to readers Fred Ray and Michael Lorton for the pointers.
References
1. http://www.dailyherald.com/news/mchenrystory.asp?id=315686
2.
http://www.nwherald.com/articles/2007/05/17/news/local/doc464c19ae6c3e8295611781.txt
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=508&invol=476
4.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=508&invol=476
5.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=505&invol=377
6.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=538&invol=343
7.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=405&invol=518
8.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=408&invol=104
9.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=393&invol=503
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