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Racist Criticisms of Police = Felony?

The Daily News (Longview, Wash.) reports:

Hundreds of racist fliers have been left in the streets of this town north of Vancouver, Wash., apparently the result of a flap over the firing of a police officer. . . .

The cards showed a racial caricature [apparently depicting a chimpanzee wearing a police officer's hat -EV] and expressed support for the town manager, George Fox, who was suspended last week pending an investigation into the firing of a black police officer, Carl Mealing. . . .

"George Fox speaks for the silent majority," the cards read. "Make sure Ridgefield stays the way it should be. Washington state needs more officials like Mr. Fox." . . .

The police, the newspaper reports, say that this "is being investigated as a potential case of malicious harassment, punishable by up to five years in prison and a $10,000 fine." That strikes me as quite troublesome. The flier's distributor can surely be charged with littering, if the city would normally charge such people with littering regardless of the content of the material being strewn. But the content of the speech is fully protected, and doesn't fit within any First Amendment exception. (It would have been otherwise if the speech contained, say, death threats, but no such threats seem to have been made, unless the story is omitting the most troublesome part of the leaflets.)

The fliers are appalling, and should be loudly condemned. But they surely may not be legally suppressed.

Justin (mail):
Professor Volokh,

Have you read about the Lance Armstrong case in Italy?
12.15.2005 6:43pm
dantes (mail) (www):
Eugene -- Is your analysis based on the assumption that the flyers are an honest expression of an abhorent view? Does the analysis change if the flyers were created as part of a campaign to smear Fox by associating him with racist remarks? Something like this is so outrageous one immediately suspects someone is attacking Fox, as opposed to supporting him. I doubt that the the analysis changes in the end, but I think it might present a closer question on the "threat" issue.
12.15.2005 6:47pm
Medis:
I don't know what the elements of "malicious harassment" are in Washington, but I'm pretty sure this won't fit.
12.15.2005 6:47pm
dk35 (mail):
I agree with Medis on this.

Do note, however, that the end of the article reports that a recent town census showed that there were 6 black people living in a town of a little over 2,000. Given the concern the police should have in protecting the rights of such a small minority, I don't see the problem with them going through an investigation to make sure that there wasn't any illegal harrassment of this group of people. If the mere existence of the fliers is all they really have, I would assume they wouldn't go forward with the harassment charges, for the reasons that EV and Medis state.
12.15.2005 6:57pm
Bryan DB:
dantes,
No one needs to associate Fox with the racist remarks. He did fine all on his own.
"The lawsuit [against Ridgefield, filed by the fired black officer] also includes an excerpt from a deposition given by Ridgefield resident Jaclyn Emter, who said [Fox] told her Oct. 2 that he fired Mealing the previous week.

"I said, 'Well, why did you fire him?' " Emter said in her deposition, according to the lawsuit filed Thursday. "And [Fox] said, 'Because he's black.' "

(See, e.g. The Columbian,
Story
12.15.2005 7:02pm
Bryan DB:
And for enquiring minds, this might be "investigated as" malicious harassment, but it's not going to be "found" malicious harassment:

RCW 9A.36.080
Malicious harassment -- Definition and criminal penalty.
(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim's race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a "reasonable person" is a reasonable person who is a member of the victim's race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.
12.15.2005 7:07pm
xx:
Bryan DB: I agree that it shouldn't constitute malicious harassment, but I think that the statute is sufficiently vague for there to be a colorable argument that the leaflets violate its terms. If I were one of six black people living in the town and "hundreds" of fliers were left in the street, I might have a "reasonable fear of harm to person or property" from the distribution of the leaflets "under all the circumstances."

If the statute were intended to exclude such behavior, I would hope to see language that suggests a reasonable person must anticipate "imminent threat of physical injury or serious damage to property." Such language would, at a minimum, make the statute less vague and chilling.
12.15.2005 10:00pm
Humble Law Student:
This is all so very wrong.

I thought the police were racist . . . Don't turn my whole world upside down. I am just a young, impressionable law student!

Oh, yah and George Bush doesn't care about black people.
12.15.2005 11:29pm
Wobuzhidao:
I am actually from Vancouver, Washington and my family still lives there, even though I don't. I can say that there are a whole lot of neo-nazis that live in that area. I know that they are very very active as well. So, I wouldn't be surprised if there is more than just the fliers that the police are responding to.
12.16.2005 6:10am
Public_Defender:
Yes, this leafleteer is a racist pig. But he is guilty of an offense that exists everywhere in the world and is codified many different ways. In some countries, the penalty can be death or torture. In others, it's imprisonment. Sometimes the penalty is "just" a short time on the county jail. What's the offense?
Insulting the Ego of an Officer of the Law.
12.16.2005 8:07am
Gary McGath (www):
Depending on what's in the flyer, there might be a libel case. But if criminal charges are brought, then we've regressed to the days of the Sedition Act.
12.16.2005 10:17am
Jack John (mail):
Why must it be imminent? Conspiracy to commit murder is a crime. The conspiracy might call for the murder to be committed a year out.
12.18.2005 9:54pm
eponymous coward (mail):
xx, you should read the Washington statute again. Especially:

Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat.

It's not vague on that point at all- that flyer doesn't meet the standards set forth for malicious harassment under statute. Washington's law is pretty stringent on that score- the ACLU, which takes a dim view of many hate crimes laws as being incompatible with First Amendment protections, cites Washington's law as a model.
12.19.2005 2:17pm