By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from a police chief in Ohio, who sent Anthony a photo of a van covered in messages that had people in the community calling 911. The chief wanted to know whether it is hate speech and whether his officers can take enforcement action on it. Anthony’s answer is short, and then he explains the part officers get mixed up.
Is there a law against hate speech?
Hey guys, my name is Anthony Bandiero. I’m an attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you another roadside chat.
So this question comes from a police chief in Ohio, and he sent me a picture. Basically the crux of this story is like, hey look, is what this person is doing, is this hate speech, and can we take enforcement action on it?
So the cop is behind this van. Hail Lucifer. F your God. Trans rights. BLM, and so forth. All right, so people I’m sure are very offended by some of the speech on here. You know, let’s say we find people calling 911 because they’re saying F your God, right. Can we stop the van based on this?
And the answer is no. Absolutely not. This is protected under the First Amendment. We may not like it, right. I can understand the concern there, right. I don’t think it’s very tasteful and so forth. But the First Amendment protects speech like this.
So hate speech, right. Really there is no law against hate speech. There are corporations, Twitter, YouTube, Facebook, that they don’t like some speech that they see as hurtful, hateful and so forth. But as far as the Constitution and the laws are concerned, you cannot, or I should say, the government cannot penalize speech because it is hateful. There are a lot of people out in this world that hate a lot of things, and when they say those things they cannot be penalized for their hate and their speech expressing their hate.
What is the difference between hate speech and a hate crime?
I think what people get mixed up on is hate crimes, right. And a hate crime is really, in my view, and you know, you can correct me if you think I’m wrong on this, if you’re a prosecutor and so forth, but a hate crime is just another way of saying an enhancement, right.
It’s like you commit murder, which is illegal, and then you do it because of the person’s race, then they tack on extra punishment because it’s a hate crime. You batter somebody and you do it because of the religion, and the battery is obviously the core offense, the reason why you do it is an enhancement. It’s like committing a battery on an old person, right. The old person is an enhancement. Or being a gang member and committing certain crimes.
So that’s the way I look at hate crimes, right. You still have to have a crime, and then the hate comes after.
Is offensive speech a breach of the peace if someone is offended?
Turning back to this, right, this is protected by the First Amendment. So offensive speech, even if it offends somebody, is protected. Please make sure we understand it. You can’t stop them and tell them to stop doing it, and see, cover that up, because somebody in the community is offended. That’s not how this works.
Okay, it’s not like a breach of the peace just because somebody’s offended. Even if they want to be the victim, they want to sign a witness statement or whatever, that’s not the way it works.
What speech can actually be criminalized?
And the only, not the only, but the main sources of speech that can be criminalized or prohibited include things like fighting words.
Fighting words are basically, some speech is so offensive that it could cause an immediate breach of the peace, right. Having a person target an African-American and use the n-word on them and call that person that, I can, there are many courts out there that would find that those are fighting words. But using that same word in a comedy sketch is not fighting words, right. So it depends on if it would cause an immediate breach of the peace.
True threats, right. If a person has the motive, the ability, the opportunity to carry out that verbal threat, then that can be penalized. I see a lot of this in potentially domestic violence investigations and so forth.
Defamation, right. Somebody ruining the good reputation of a person with lies and so forth. That’s the definition. We don’t criminalize defamation, it’s civilly, but the point is that is a person that’s accused that can’t go to court and say, but your honor, I have a First Amendment right to defame people. That’s not how that works.
But really those are very narrow exceptions. The vast majority of speech out there is protected.
What happened to the officers who ordered a man off public property?
So let me give you a case called Wood versus Eubanks, out of the Sixth Circuit, out of Ohio.
County fair patron, profanities that he spewed about the police while he was being escorted off fairgrounds by the sheriff’s deputies and sergeant, while wearing a shirt stating F the police, including phrases thugs with badges, F thugs with guns. You get the idea. Do you get the idea? I don’t think he likes the police as much.
We’re protected by the First Amendment. The enforcement against him, ordering him off public property because he had that shirt on and what he was saying, was against the First Amendment. No qualified immunity. Be careful.
If you do stop that van, what should you never bring up?
So should we stop that van? No, not because of speech. If you find some other violation, expired registration, et cetera, et cetera, look, if you’re going to stop it, go take care of business.
But one thing I don’t want you to do is even talk about that speech. I wouldn’t even say anything about it. Just keep it off the video and so forth. I wouldn’t be like, hey man, you got a good vocabulary there, huh, is that all. Don’t say stuff like that.
Just because what’s going to happen is, if you bring up his speech in the car stop, he’s going to say, hey, you stopped me, your motivation was because of my speech, because you didn’t like what I said. You don’t really care about my speeding, my registration, you care about my speech. We don’t even want that argument to come into court. And the way you don’t have it coming to court is to what? Don’t even bring it up, right. Say, sir, that’s not why I stopped you. I stopped you because of this.
All right, hope it helps. Keep the questions coming. I hope that helped you get it right every single time. Until next time, my friends, stay safe.
The short version
- Really there is no law against hate speech.
- The government cannot penalize speech because it is hateful. Corporations can do what they want about it, the government cannot.
- A hate crime is really, in my view, just another way of saying an enhancement. You still have to have a crime, and then the hate comes after.
- Offensive speech, even if it offends somebody, is protected. It’s not a breach of the peace just because somebody’s offended.
- Even if the offended person wants to sign a witness statement, that’s not the way it works.
- The main categories that can be criminalized are fighting words, true threats, and defamation. Those are very narrow exceptions.
- Fighting words depend on whether the speech would cause an immediate breach of the peace. The same word in a comedy sketch is not fighting words.
- In Wood versus Eubanks, ordering a man off public property over his shirt was against the First Amendment, and there was no qualified immunity.
- If you stop the van for a real violation, go take care of business. But do not even bring up the speech, and keep it off the video.
- If you bring up his speech, he is going to argue your real motivation was the speech. We don’t even want that argument to come into court.
Related from Blue to Gold
- First Amendment Activities Inside the Courthouse
- Losing Qualified Immunity
- Detention for Criminal Trespass
This article is an edited transcript of Roadside Chat Ep. #378. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
