Hate crimes and free speech: Where do we draw the legal line?

The horror and hatred surrounding last weekend's massacre in a Buffalo supermarket has shocked the nation, sending yet another chilling reminder about the toxic combination of racism, access to guns and mental health that afflicts some young white men in this country. It also renewed the conversation about hate crimes, the right to free speech and the complicity of white supremacist groups in these tragedies. Daniel Medwed, GBH News legal analyst and Northeastern University law professor, joined host Paris Alston on GBH’s Morning Edition to talk about the intersection of these issues. This transcript has been edited for clarity and length.

Paris Alston: So Daniel, there's been a lot of evidence coming out around this murder, this mass murder, that it was motivated by racial bias, particularly because the murderer had a white supremacist manifesto. He was influenced by white supremacist vitriol online. And there's talk about it being charged as a hate crime as a result of all that. Do you think that'll happen?

Daniel Medwed: Absolutely. All signs are pointing in that direction, Paris. Under New York law, a murder will be elevated to a hate crime and subject to an enhanced penalty if the perpetrator, quote, intentionally selects the victim or commits the act based on race, national origin, gender or some other protected status. And given the manifesto that you mentioned and all of the other facts surrounding this tragedy, it appears as though prosecutors would have a very strong basis for charging this as a hate crime.

Alston: And how does that compare to how it works here in Massachusetts?

Medwed: It's very similar here in Massachusetts. A crime becomes a hate crime when it's committed with the, quote, intent to intimidate the individual because they belong to a protected group and that the person was chosen because of their protected status. So the semantics are a little bit different, but the gist is largely the same here in the Commonwealth.

Alston: How hard is it for prosecutors to prove that? I mean, does there have to be proof that the bias was the entire reason for the crime, or much of the reason, or just part of the reason?

Medwed: Those are critically important questions. And I think the answer depends on the precise jurisdiction and the statutory language in place. Does it have to be the entire reason, as you point out, a substantial motivating factor or just part of the equation? Fortunately, here in Massachusetts, we have a 2015 SJC decision, Commonwealth v. Kelly, that supplies an answer. In that case, the court said that prosecutors do not have to prove that bias was the predominant factor or even a substantial motivating factor in a hate crime. They just have to show that the bias was part of the narrative. It's a rather benign or lenient standard for the government, which at least in theory may seem to make it a little easier to charge something as a hate crime here than in some other places.

Alston: So, Daniel, thinking about that evidence that we mentioned that we have of the shooter's motive, do defendants in these hate crime cases ever raise a First Amendment defense? You know, maybe they say that elevating an offense to a hate crime would be punishing them for viewpoints that they're entitled to have, even if they may be bigoted and offensive.

Medwed: People often make those types of arguments. It comes up a lot. A defendant will say they're being penalized for their First Amendment views and that that's unconstitutional. But those efforts have largely failed so far. And here's why. First, I think it's important to note that the First Amendment doesn't provide blanket protection for all speech. The government may impose reasonable time, place and manner restrictions on even protected speech. And not all speech is subject to robust constitutional safeguards.

Second, and I think more notably, the Supreme Court has already explicitly addressed the nexus between the First Amendment and hate crimes. In a 1993 case called Wisconsin v. Mitchell, the defendant got an enhanced sentence. If I recall, he got seven years instead of two because Wisconsin prosecutors believed that he had intentionally selected the victim based on race. It's a statute that's very similar in Wisconsin to the one in New York that we just mentioned. Mitchell, the defendant, then claimed, “hey, this is a First Amendment violation. I'm being punished. I'm being given an extra sentence because of my bigoted views, because of my unpopular viewpoints.” And he challenged it all the way through the Wisconsin courts. And the Wisconsin Supreme Court agreed with him and said that this was unconstitutional. He was being punished in violation of his First Amendment rights. But get this — the U.S. Supreme Court then took the case and in a unanimous decision the court said no, Mitchell was not being punished for his speech. He was being punished for conduct that was animated by racial bias.

Alston: So sort of acting on those bigoted views.

Medwed: Exactly. And so motive is always an appropriate factor in sentencing. It's not the speech that's being punished. But as you point out, Paris, it's acting on those racially charged and horrific views. So that case, the Mitchell case, provides to some extent a really good safeguard for prosecutors when facing a First Amendment challenge in this context.

Alston: I see. So, Daniel, in the couple minutes we have left with you, I want to talk to you about this growing white supremacist conspiracy known as replacement theory that's been being floated around because of what we believe to be the shooter's motive. And so this theory claims that the powers that be are pushing a population shift to replace native-born Americans with immigrants and other nonwhite people. And this has been said to be spread by everyone from fringe groups and individuals to people like Tucker Carlson on Fox News. So given that, is there any onus for what happened and maybe could happen later down the road on people or groups who may be pushing this in the media?

Medwed: Well, on a moral level, certainly they bear a lot of responsibility for creating this vile environment in which racial hatred could flourish. And it's foreseeable that some people are going to act on these horrific views. On a legal level, though, Paris, it's much more challenging. So on the one hand, the legal theory here is often complicity or accomplice liability, that these white supremacist groups aid or abet — "abet" is just a fancy legal word for encourage — they encourage racial hatred and therefore they have acted as accomplices in these racially charged crimes. So you can argue that they've acted, that they've aided or abetted in these crimes.

On the other hand, you're an accomplice if you both act and you have a culpable mental state, you have to act with the purpose for that particular crime to occur. And that's where it becomes difficult for prosecutors to argue that these groups are accomplices because they can always say, “hey, our views are very general, they weren't particular to this defendant, to this act. It wasn't our purpose to foment this particular act of violence.”

Alston: Well, Daniel, per usual, you have made something very complicated, a lot easier to understand, and we thank you for that.