Is It Free Speech or a Hate Crime?

A Redwood City man told police that he punched a gas station employee because he “wanted to hit a Mexican.” Students at Monte Vista High School in Danville found the words “colored” and “whites” written over the urinals in a campus bathroom. Mosques across the country received letters that heralded the election of Donald Trump and claimed that a Muslim genocide would be coming soon.1

In the past month, there have been many reports of attacks being committed based on the victim’s race, religion or sexual orientation. Muslims, Latinos, African-Americans and people who identify as LGTBQ have become targets of acts of hatred and bigotry, some of which have been violent.

Many of these incidents have not led to criminal charges because of the First Amendment right to free speech. But when does free speech cross the line to a criminal act?

The Limits of the First Amendment

The First Amendment to the U.S. Constitution states that the government cannot fine or imprison a person based on the things he or she says or writes. If that is the case, how is it that several states, including California, have laws that can punish the exercise of speech?

The answer lies in the idea that not all speech is considered protected. Various U.S. Supreme Court cases have held that there is no right to speech that includes:

• Incitement to illegal activity and/or imminent violence;
• Defamation and libel;
• Obscenity;
• Threats and intimidation; and
• False advertising.

So, for example, if you made a verbal or written threat to kill or injure another person, your speech is not protected under the First Amendment, and you could be charged with making a criminal threat under California Penal Code Section 422.

However, if you were to simply state that you hate a certain race or religion, and you make a statement to someone of that race or religion that you want all the people of that race or religion to leave California, you have not broken the law. This type of statement does not contain a threat of committing a crime involving death or serious bodily harm to another, nor does it call for others to commit imminent acts of violence.

Hate Crime Laws in California

In California, most “hate crime” laws take the form of sentence enhancements. These laws add consequences to your sentence if you are convicted of a crime.

For example, California Penal Code Section 190.2(a)(16) creates a special circumstance where a murder can be eligible for a death sentence if it is proven that the crime was motivated by hatred for the victim’s race, color, religion, nationality or country of origin. If you commit a felony and the prosecution proves that you committed the crime with the intention of committing a hate crime, PC 422.75(a) allows the court to add an additional term of up to three years in prison to your sentence.

There are other laws that specifically protect religious worship from disruption by criminal activities. For example, vandalizing a church, synagogue, mosque, cemetery, or other place of worship is a violation of California Penal Code Section 594.3. Threats of violence against a person or place of worship that are intended to cause a person to refrain from practicing his or her religion are unlawful under California Penal Code Section 11412.

Contact the Criminal Defense Attorneys at Wallin & Klarich Today

If you have been accused of a hate crime, you should retain an experienced criminal defense attorney as soon as possible. At Wallin & Klarich, we have been successfully defending clients charged with serious crimes for over 40 years. We will work hard to ensure that your rights are being protected, and we will work diligently to help you obtain the best possible outcome in your case.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free, no-obligation phone consultation. We will get through this together.

^{1. James Queally and Veronica Rocha, “Cops are going undercover and watching social media to combat hate crimes,” The Los Angeles Times, November 28, 2016, available at http://www.latimes.com/local/lanow/la-me-ln-hate-crimes-election-20161123-story.html.php href=”#ref1″>↩}