HATE SPEECH: The Supreme Court on “True Threats” and the First Amendment

Quality of life is dependent on the effectiveness of order in the society. If rules promote mutual respect and equality before the law, it creates an inclusive society and significantly reduces hate crimes statistics.

Despite the general perception that the United States of America is the land of free, it may have little to do with reality.

For the international community, the discrepancy between perception and reality started to surface at the beginning of Donald Trump’s presidential campaign. “They are not our friend, believe me,” he said, before disparaging Mexican immigrants: “They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”

On 11th of November 2016, BBC reported that dozens of alleged hate crimes have surfaced on social media in the wake of the election of Donald Trump. BBC questioned whether hate crimes spiked after Trump’s victory?

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ON 14th November 2017, The Independent reported that the number of hate crimes in America spiked last year for the first time after years of decline, according to new FBI data.

According to The Independent, the number of hate crimes in 2016 jumped by nearly 300 reported cases compared to the year prior, with 6,121 incidents reported the FBI last year compared to 5,850 in 2015.

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The Independent highlights that it is a concerning spike that defies a trend since the agency first began recording data on the type of crime in 1992. There were 8,759 hate crimes reported to the FBI in 1996, for instance, even though there were more police departments that participated in that particular survey.

If a number of factual evidence suggest that Donald Trump might be the reason for the hate crime spikes why no legal consequences followed? Is it because the US law does not recognize a speech that leads to such spike as a crime?

Apparently, there are views that hate speech itself is not a crime.

On 20th February 2017, WBUR reported that the right-wing commentator Milo Yiannopolous has come under fire on college campuses and elsewhere for expressing views that some call hate speech.

According to Santa Clara University law professor Margaret Russell, if someone is speaking in a way and in a context in which they’re encouraging violence that could be imminent, and they are intentionally trying to bring that about, that is known as incitement, and that is not protected speech.”

Here & Now’s Jeremy Hobson speaks with Santa Clara University law professor Margaret Russell about what the legal rules on hate speech are.

I am not an expert in the US Law but it is difficult to agree with Margaret Russell’s opinion.


First, I am not sure whether it is possible to identify with 100% accuracy whether a racially charged statement could imminently lead to a violence. Since it is not humanly possible, using it as a basis for qualification whether or not such statement is a crime doesn’t make any sense.

Having said that, a number of other factors may be used to identify whether it is highly possible that the outcome of such statement could be harmful to another person or group of people.

Second, generally, it is difficult to imagine that racist statements could be made in order to maintain a conversation. When a person expresses views which are racist by their nature, it is done for a reason. Together with reason comes the intent.

Third, I am surprised by Margaret Russell’s interpretation of the Law.


On 10th December 2014, the U.S. Supreme Court heard argument in Elonis v. the United States, a case that asks what a “true threat” is. In prior cases, the High Court has said that true threats may be criminally punished, notwithstanding the First Amendment protection for the freedom of speech. In Elonis, the question is whether the person who utters a true threat must subjectively intend to bring about fear of bodily harm or death or whether it is enough that a reasonable person uttering the words in the context would foresee that his words would be interpreted as such a threat.

In the case before the Court, the question breaks down into two parts: (1) Did Congress require intent in the statute under which Anthony Elonis was prosecuted and convicted, 18 U.S.C. §875(c); and (2) Regardless of what the statute provides, does the First Amendment right of free speech require that only a person intending to cause fear with his threatening utterances be subject to criminal penalties? In this column, I will examine the second, constitutional, question in light of the reason that we exclude true threats from protection for speech under the First Amendment.


The Supreme Court on “True Threats” and the First Amendment

In the Supreme Court’s Virginia v. Black case addressing the question of true threats, it used some language that supports Elonis’s position. It said that “[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” (emphasis added) The Justices also rejected a jury instruction that would have allowed the jurors to infer an intent to intimidate solely on the basis of the fact that the defendant burned a cross.

Once we understand that a threat is essentially a bad act rather than a failed attempt at completing a different bad act (i.e. the threatened behavior), it makes little sense to have responsibility turn on what the actor’s real purpose was in uttering the words that he or she uttered. One could certainly rank the threatening words as more or less culpable, depending on the speaker’s intentions, just as we rank intentional murder more seriously than negligent homicide. But some criminal responsibility—and the corresponding exception to the First Amendment protection for free speech—ought to match up with the harmfulness of the conduct.

It is also important to remember that in 2009, Congress passed, and President Obama signed, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, expanding the federal definition of hate crimes, enhancing the legal toolkit available to prosecutors, and increasing the ability of federal law enforcement to support our state and local partners.


the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act


This law removed then existing jurisdictional obstacles to prosecutions of a certain race- and religion-motivated violence.,, and added new federal protections against crimes based on gender, disability, gender identity, or sexual orientation.  Before the Civil Rights Division prosecutes a hate crime, the Attorney General or someone the Attorney General designates must certify, in writing, that (1) the state does not have jurisdiction; (2) the state has requested that the federal government assume jurisdiction; (3) the verdict or sentence obtained pursuant to state charges did not demonstratively vindicate the federal interest in eradicating bias-motivated violence; or (4) a prosecution by the United States is in the public interest and necessary to secure substantial justice.  In the seven years since the passage of the Shepard-Byrd Act, the Justice Department has charged 72 defendants and convicted 45 defendants under this statute.  In total, as of July 15, 2016, the department has charged 258 defendants for hate crimes under multiple statutes over the last seven years.

By going through reports on the Supreme Court’s cases and the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act I couldn’t find anything which would suggest that hate speech should lead to “imminent” harm. Instead, the Supreme Court made very clear that as long as there is a good reason to think that potentially harm could be done is good enough to qualify it as a crime.

But the ultimate question is not whether Santa Clara University law professor’s interpretation is grossly misleading.

The question I would like to ask is why legal actions were not taken against Donald Trump despite a numerous and well recorded factual evidence lead to only one logical conclusion.

Donald Trump might have breached the US laws by delivering a number of hate speeches that could possibly be the reason why there is a spike in hate crimes.

When laws do not apply equally, chances to create inclusive society vanish. Lack of equality before the law also establishes a dangerous precident. When a crime is left unpunished it legitimizes the crime.

It also revokes the “license” for such society to be called “the land of free”. Because freedom without the order and equal rights is not a freedom. It is chaos.





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