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How federal law draws a line between free speech and hate crimes

https://www.pbs.org/newshour/nation/how-federal-law-draws-a-line-between-free-speech-and-hate-crimes

Establishing the line between protected speech and a federal hate crime can be challenging for prosecutors and courts and depends on the facts of each particular case. Here’s a look at how federal law treats hate speech:

WHAT DO FEDERAL LAWS HAVE TO SAY ABOUT THIS?

The signature hate crime statute — the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act — makes it illegal to physically harm someone based on their race, religion, national origin, gender or sexual orientation, among other characteristics.

DOESN’T THE CONSTITUTION ALLOW ME TO SAY WHATEVER I WANT?

To a large degree, yes. The First Amendment offers broad free speech protections and permits membership in organizations, such as the Ku Klux Klan, that espouse hateful ideologies.

But while the Constitution gives latitude to hate speech and offensive rhetoric, court decisions in the last century have carved out notable — though narrow — exceptions to free speech guarantees and authorized prosecution for language deemed to fall out of bounds.

Comments intended as specific and immediate threats brush up against those protections, regardless of a person’s race or religion. So do personal, face-to-face comments meant to incite imminent lawlessness, such as a riot.

A 1942 Supreme Court decision called Chaplinsky v. New Hampshire — which involved a Jehovah’s Witness who cursed at a city marshal, calling him a “damned fascist” — articulated a “fighting words” doctrine that restricted insults intended to provoke an “immediate breach of the peace.”

ARE THREATS AGAINST THE LAW?

They certainly can be, but that depends on various factors. Determining what constitutes an actual threat — as opposed to a vague and far-off remark — is a tricky, fact-specific question.

In Virginia v. Black, a seminal 2003 Supreme Court decision on cross-burning, Justice Sandra Day O’Connor described “true threats” as statements in which “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

In other words, the more specific and immediate the threat, the more likely it’ll be regarded as illegal.

“It’s one thing to say, ‘Kill all the Jews,’ versus ‘Kill that Jew who was my kid’s school teacher who gave him an F,’” said James Weinstein, a constitutional law professor at Arizona State University.

Justice Department officials say context matters greatly in such cases, making it hard to generalize too broadly. Hateful threats that the target interprets as a joke, or that are discussed among friends but not leveled at anyone in particular, likely would be harder to prosecute federally.