I don't think that laws that punish hate crimes — i.e., criminal acts motivated by the victim's race, religion, sexual orientation, and the like — are unconstitutional. I think the U.S. Supreme Court's unanimous decision in Wisconsin v. Mitchell gets this right, for the right reasons.
Nonetheless, the decision discussed below, in which a person pled guilty for sending racist messages to a city councilman and to the mayor about the city councilman, helps show a problem with such statutes, especially when they cover speech — even assertedly constitutionally unprotected speech (such as threats, fighting words, telephone harassment, and the like) — rather than violent conduct. Based on the quoted material, I'm pretty sure the messages should be constitutionally protected, and a thoughtful and well-reasoned decision by the U.S. Court of Appeals for the D.C. Circuit (U.S. v. Popa) supports that view. But according to the defense lawyer, the defendant pled guilty to a misdemeanor, and went to jail because of it, because raising the First Amendment challenge exposed him to a risk of felony hate crime prosecution, which could have led to a much higher penalty.
The Columbian (Vancouver, Wash.), reports in its May 20 issue, that "Defense attorney Jon McMullen had considered arguing that the comments were protected as free speech, but facing the possibility of federal charges — which could have netted Reinhold more than a year in prison — his client decided to plead guilty." And an earlier article reported that, "Lawyers at the U.S. Attorney's Office became interested in the case and on Friday wrote to Reinhold's defense attorney, Jon McMullen, that they would let the case rest if Reinhold changed his plea.... 'Basically, they said, 'If you fight it down here, win lose or draw, we'll charge in federal court,'' McMullen said." Here, the threat of felony prosecution came from federal prosecutors, but it could equally well have come from state prosecutors under a felony hate crime statute.
Now I don't think this makes hate crime statutes unconstitutional, and this sort of pressure to plead guilty to a lesser charge and waive the right to appeal arises in all sorts of cases, not just cases such as this one. Nonetheless, this does highlight one way in which hate crimes laws can endanger free speech, even if this danger doesn't rise to the level of cause the laws to be unconstitutional. And it is one reason that (for instance) people who worry about suppression of constitutionally protected anti-homosexuality speech might be concerned about federal laws imposing harsher penalties for "hate crimes" based on sexual orientation, if those laws are broad enough to cover not just violence but also supposedly unprotected speech.
UPDATE ABOUT THE ORIGINAL POST IN THIS CHAIN (for those who are reading this one but continue to be interested in the original one): I should note that I assume the premise of the prosecution is that the black councilman was one of the recipients, which is what would make the e-mail even theoretically actionable as "cyberstalking." If the premise was that the defendant was sending offensive messages about a city councilman to other city councilmen, then the prosecution is even more outrageous. And I should acknowledge, on further thinking about this, that the state statute seems to allow such an unconstitutional result, because it provides (emphasis added),
(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication [including e-mail] to such other person or a third party:
(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;
(b) Anonymously or repeatedly whether or not conversation occurs; or
(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household....
Again, if the prosecution is premised solely on the messages to third parties then this is a frightening result: It is completely unmoored from the premise of normal telephone harassment law (which is troublesome enough as to government officials, as Popa discusses), and it takes the view that it's a crime to send anonymous messages to government officials about other government officials "with intent to harass, intimidate, torment, or embarrass" the subject.
Related Posts (on one page):
- An Extra Perspective on the Possible First Amendment Problems Posed by Hate Crimes Laws:
- Jail Time for Sending Racist Message to a City Councilman: