What is protected speech and what is hate speech?

In this file photo from October 2009, President Barack Obama, reacts with the mother of Matthew Shepard, Judy Shepard, second left, and James Byrd Jr.'s sisters, Louvon Harris, left, and Betty Byrd Boatner, second right, during a reception commemorating the enactment of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, at the White House, Washington, D.C., Oct. 28, 2009 | AP File Photo/Manuel Balce Ceneta, St. George News

WASHINGTON. D.C. (AP) — Incendiary rhetoric has seeped into 2016 presidential politics, surfaced in the public debate over accepting Syrian refugees into the U.S. and popped up repeatedly following terror attacks in Paris and San Bernardino.

Attorney General Loretta Lynch has expressed concern about the potential for an anti-Islam backlash similar to one that followed the Sept. 11 attacks and vowed that the Justice Department would punish “actions predicated on violent talk.”

Advocates are certainly reporting to us an increased concern around incidents, threats and potential hate crimes that they’re bringing to our attention,” Vanita Gupta, the head of the Justice Department’s Civil Rights Division, said in an interview with The Associated Press.

But the spectrum of hateful expression is broad, encompassing acts that are clearly illegal — such as firebombing a mosque — as well as vague and distant threats that, while noxious, might well be protected by the First Amendment.

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.

“It requires specificity, it requires intent and it requires a certain sense of imminence,” Gupta said.

HOW OFTEN ARE SUCH CASES INVESTIGATED?

The FBI says local law enforcement agencies reported 5,479 hate crime incidents in 2014.

In a Dec. 3 speech to the Muslim Advocates organization, Lynch said that more than 220 defendants had been charged with hate crime offenses in the last six years. Those include a Utah man who threatened an interracial family with death and a man who admitted tying a rope around the neck of a James Meredith statue on the University of Mississippi campus.

Since Sept. 11, 2001, the attorney general said, the Justice Department has headed more than 1,000 investigations into acts of “anti-Muslim hatred” and bigoted behavior, leading to more than 45 prosecutions — including of a New York man who e-mailed death threats to an employee at the Council on American-Islamic Relations, and of a Texas man convicted in 2013 of threatening to bomb an Islamic center in Murfreesboro, Tennessee.

Among incidents in the last two months: a caretaker at a Philadelphia mosque said he found a severed pig’s head outside on the sidewalk, and CAIR, a Muslim advocacy group, reported getting a hate letter with a white powdery substance at its Washington offices.

“I think, sadly, that number is going to continue,” Lynch said.

Story by: ERIC TUCKER, Associated Press

Copyright 2015 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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19 Comments

  • .... January 2, 2016 at 4:41 pm

    Protected speech is anything a black person says

    Hate speech is anything a white person says

    Protected speech is anything a Mormon says

    Hate speech is anything a non Mormon says

    Protected speech is anything a Muslim says

    Hate speech is anything a Christian says

    Protected speech is anything a Alcoholic says

    Hate speech is anything a pot smoker says

    Protected speech is anything an illegal alien says

    Hate speech is anything an American says

    • GrandmaB January 3, 2016 at 9:34 am

      Your list is sickening. This comment is so typical of what the privileged, protected person coming from a position of power would say about those he or she would like to continue to be above, superior to, or just plain in power over. What a bunch of bull shit! Are you crying because you can’t continue to be the bigot you are or the racist you want to be? Poor baby. I know you aren’t so stupid you don’t understand the truth of black kids getting murdered everyday by the people who should be protecting them. Or that all Muslims are not terrorists. You are smart enough to know the majority of middle easterners hate the war America has started over there, aren’t you? You can tell this person is Mormon, it is the only time the logic breaks. Didn’t want to be too obvious. “Protected speech is anything a Mormon says.” You deliberately switched there didn’t you? Which begs the question – why change it??? To follow your logic it should be “protected speech is anything a non-Mormon would say.” Your pretty dumb if you thought no one would notice. I know, living in Utah, that the majority of 2nd, 3rd or 4th generation Mormons really consider themselves separate from the rest of the US. The church has had to change a lot. No polygamy; blacks in priesthood, and who knows what else – gays openly married going to church with their families? People are changing. Religion is being recognized for what it is. Lies to placate people into doing things that are basically bad for them. I feel sorry for you.

      • IDIOT COMMENTERS January 3, 2016 at 1:42 pm

        ahaha, good one ….. You threw poor ol’ granny into a lunatic rage fit. LOL

      • ladybugavenger January 3, 2016 at 5:55 pm

        Grandma needs a nap

    • .... January 3, 2016 at 5:08 pm

      Hate speech is anything GrandmaB says

  • ladybugavenger January 2, 2016 at 6:36 pm

    That sums it up

  • 42214 January 2, 2016 at 7:17 pm

    Hate speech is anything Mesaman says

  • IDIOT COMMENTERS January 2, 2016 at 8:29 pm

    and obama is a muslim sympathizer. and black people commit more crimes than white people. what more to say. “hands up, don’t shoot!”

    • 42214 January 2, 2016 at 9:45 pm

      Are you ever going to say something intelligent?

    • GrandmaB January 3, 2016 at 9:35 am

      Your really stupid aren’t you. Which is too bad because ignorance can be cured, stupidity cannot.

      • IDIOT COMMENTERS January 3, 2016 at 1:42 pm

        are u saying u can’t be cured?

      • 42214 January 3, 2016 at 2:08 pm

        I bet you’re obese and smell bad. You accuse cops of killing poor kids they’re suppose to protect but ignore the fact that the most confusing day of the year in the inner city is father’s day. Black killing blacks is 100 fold greater than “innocent” kids getting shot. I know, the Brown shooting in Ferguson was murder and hands up don’t shoot is founded in fact. You suck granny and take your victim attitude and put it where the sun don’t shine which I’m sure you have several choices.

      • .... January 3, 2016 at 5:13 pm

        Learn how to spell granny . it’s you’re stupid not your stupid ! but it seems you’re stupid either way

      • IDIOT COMMENTERS January 3, 2016 at 5:56 pm

        I feel bad for police having to work with “the black community”. Most of their experiences with “the black community” end badly, and I’d say it’s the cops’ fault less than 1% of the time.

  • .... January 4, 2016 at 6:06 am

    Granny Will feel better when she goes and gets her free state cheese and milk

    • 42214 January 4, 2016 at 8:56 am

      Granny is a hybrid between Mesaman and Native Born, the worst of both worlds.

  • .... January 4, 2016 at 6:19 am

    Protected speech is what the Quran says
    Hate speech is what the bible says

    I

  • .... January 4, 2016 at 8:41 am

    Protected speech is anything a black cop says.
    Hate speech is anything a white cop says

  • .... January 4, 2016 at 8:47 am

    Protected speech is anything a fat person says
    Hate speech is anything Jenny Craig says

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