12.6: Analyzing Public Policy- Hate Speech in the Face of the First Amendment

Addressing Hate Speech and Hate Crimes in the Golden State

By Brooke Collins, M.A.

In May of 2023, an LGBTQ flag was burned at Saticoy Elementary school in California. The flag, which was held in a small potted plant, symbolized the celebration of an upcoming Pride Assembly on campus. The scheduled event had already sparked controversy within the San Fernando Valley community since its announcement, as some parents openly elected to protest it by not allowing their children to attend school that Friday. However, the blatant destruction of the flag inspired a strong sense of fear and deep concern for the safety of the students (Planas and Sheeley 2023). As a result, the LAPD was called on by the director of the local LGBTQ center, Renato Lira, to ensure their protection:

“We are really concerned. We wanted to make sure the kids are safe during the time they’re inside the school. We are working on this around the clock. We are keeping an eye on social, even communicating with the school district and the LAPD. We have meetings every day” (qtd in Planas and Sheeley 2023).

In June of the same year, household residents of the Sacramento area reported that they discovered plastic bags filled with mysterious leaflets in their neighborhoods. Many of them were vocal about how they were disturbed by both the antisemitic and racist nature of the literature, denouncing it as “more than unsettling” and a “sad state of affairs” (qtd. in Hope 2023) -- the prevailing consensus that the messages on the pamphlets were motivated by hate (Hope 2023).

The level of distress prompted by these incidents certainly warrants the question: can the individual or individuals responsible for each of them be held criminally liable in California for their actions? Or are these actions considered legal under the First Amendment of the U.S. Constitution as a valid expression of protest? If we want to uncover the answer, we must first begin by distinguishing between two critical concepts according to state law: hate speech and hate crimes.

It may surprise you to learn that California has no ban on hate speech; however, it does prosecute hate crimes. More specifically, under the Ralph Act of California Civil Law, it is prohibited to target citizens or their property with acts of violence or threats of intimidation on the basis of their perceived or actual characteristics such as race, gender, religion, or disability (“California Law Protects You from Hate Violence”:). In other words, the state punishes those who attempt to cause harm or that actually do cause harm to an individual or their property as a result of bias (“California Law Protects You from Hate Violence”:). Examples of hate crimes include, but are not limited to: an attempted assault on a person who identifies as a certain gender, vandalizing a house believed to be owned by a same-sex couple, or sending death threats to the teachers of a religious school for their beliefs.

In addition, the Tom Bane Civil Rights Act, otherwise known as the Bane Act, builds on this protection against hate crimes by making it illegal to use threats, intimidation or coercion in order to prevent a citizen from exercising their rights (Haro et al., 2018). These rights do not only include those guaranteed by the state’s own constitution, but those promised to all citizens of the country under the federal constitution as well (Civil Code 52.1). Furthermore, it declares that even those “acting under the color of the law” itself—such as police officers--are not exempt from penalty if they interfere with an individual or individuals’ practicing of their rights (Micheli 2023).

How does this understanding of hate crimes in California also serve the goal to understand its current conceptualization of hate speech? Well, first the Ralph Act establishes that there are crimes characterized by ‘hate’ and it next describes the very nature of that hate. And finally, both the Ralph and Bane Acts each recognize the role that speech can play in promoting this type of crime. Without this crucial legal foundation, there could be no policy or policies enacted against hate speech in California because there could be no identification of its victims!

Of course, California is still obligated to honor the First Amendment of the U.S. Constitution when addressing the issue of hate speech. According to the First Amendment, neither the federal government nor state governments can create laws that abridge the right to freedom of speech—even speech classified as hostile towards other people or their beliefs. As a result, California’s interpretation of hate speech and its expression has been dictated by the Supreme Court’s interpretation of the legal perimeters of the First Amendment. The Supreme Court has ruled that not all speech is protected; there are specific categories of it that may be regulated. This includes speech or expression which possesses content that is likely to “provoke imminent lawlessness”, such as “fighting words” --words defined as inciting violence or the “immediate breach of peace” – obscenity or defamation (Haro et al., 2018).

Although not all speech and forms of expression are recognized as protected under the First Amendment by the U.S. Supreme Court, this does not mean that California has the license to restrict or ban these categories of speech or forms of expression in every situation. In the 1931 Stromberg v. California case, the Supreme Court declared the first section of a state statute that forbade citizens from displaying a red flag in a public place when it served as a “sign, symbol or emblem of opposition to organized government” unconstitutional (National Constitution Center). The red flag in question was a reproduction of the flag of Soviet Russia, which is also known as the flag of the Communist Party of America. This flag was utilized for a daily ceremony at a camp in the San Bernardino mountains in which the children first raised it and next participated in a ritual pledge of allegiance “to the worker’s red flag, and to the cause for which it stands; one aim throughout our lives, freedom for the working class” (qtd. in National Constitution Center). It was not the children--but rather their 19-year-old supervisor--a member of the Youth Communist League, who was convicted in California for their role in directing this ritual; a conviction ultimately overturned by the ‘Highest Court in the Land’ on the grounds that it violated the First Amendment (National Constitution Center).

The significance of Stromberg v. California rests in the federal determination that a state statute, or state law, may not punish a citizen for exercising their right to oppose the government. It also establishes that symbols representative of this opposition, such as a flag, cannot be banned. If we apply this ruling to modern society, its relevance is highlighted through the evolution of technology and the continued popularity of social media, which has become its own unique forum for political discussion. On websites and smart device applications such as Facebook and Twitter, one of the most common symbols of free speech takes form in memes. Memes are defined as “repurposed media” that are utilized to both deliver and replicate “cultural, social or political expression” --largely through humor (Benveniste 2022). Although memes are grounded in humor, it does not follow that the joke is welcomed by all online. Memes may not only poke fun at a popular celebrity’s fashion choice; they might also ridicule a current political policy or idea. Likewise, they may also criticize a government figure, political activist, or a political group.

However, memes are protected speech in the same manner that Communist flags are protected speech under the First Amendment—what matters, legally speaking, is the content of the speech itself. Even if a meme is widely considered offensive, it is not enough to warrant penalty from either the Federal or State governments. In California, there is a legal differentiation between a hate crime and a hate incident. While a hate crime demands punishment, a hate incident does not (“Hate Crimes | State of California - Department of Justice - Office of the Attorney General”) Examples of hate incidents include name-calling, insults, posting hate material in a way that does not result in property damage and distribution of materials with hate messages in public settings (“Hate Crimes | State of California - Department of Justice - Office of the Attorney General”). Because the internet is a shared, public space, memes are allowed to be created that contain hate messages. It is only when those messages threaten or inspire violence against their target that intervention can occur. The same is true for any medium of hate message conveyed online.

Despite the fact the California government cannot ban hate speech due to the First Amendment, it can take preventative measures to mitigate its harmful effects—particularly online. One such measure is AB 587, signed into law in September 2022 by the current state governor, Gavin Newsom. This action was inspired by his belief that California should “not stand by as social media is weaponized to spread hate and disinformation” and that its citizens “deserve to know how these platforms are impacting public discourse” (qtd. in “Governor Newsom Signs Nation-Leading Social Media Transparency Measure | State of California - California Governor - Office of Governor Gavin Newsom”) AB 587 holds social media platforms accountable for their potential to be utilized as a tool for spreading misinformation and for fostering an environment which can promote extremism or harassment; this is accomplished by requiring them to be publicly transparent about their policies on these very issues. In addition, social media platforms are responsible for reporting data on their enforcement of these same policies (“Governor Newsom Signs Nation-Leading Social Media Transparency Measure | State of California - California Governor - Office of Governor Gavin Newsom”).

AB 587 is evidence that California recognizes the dangers of hate speech just as well as hate crimes. However, it is because social media platforms like X are privately owned and operated, that they are considered independent from the government. As a result, it is possible for them to take action against users and to restrict their content or ban them from the platforms altogether without being in violation of the First Amendment. Given our understanding now that California law must adhere to the First Amendment, we will return to the two cases presented at the beginning of the section: the flag burning at the elementary school and the distribution of racist leaflets in Sacramento. Are these instances of protected speech under the First Amendment or examples of hate crimes that can be prosecuted in California?

The answer is both: one case is an instance of a hate crime, and the other is an example of protected speech. The first case of the flag-burning at the elementary school is under police investigation as a vandalism hate crime, which carries a misdemeanor charge (Scauzillo 2023). However, the second case—which concerns Sacramento and the leaflets—does not immediately warrant this same type of investigation by law enforcement. According to Sgt. Amar Ghandi, a spokesperson for the Sacramento Sheriff’s Office, this is because “people have to understand that people have that constitutional right to feel how they feel and voice those opinions” (qtd. in ABC10) --even if those opinions are disturbing to others in the community.

The key difference in the police response to each case is explained by the earlier legal distinction in California made between a hate crime and a hate incident. Although both cases are linked together by the motivation of hate behind them, only the first resulted in property damage because of it; the other did not. This is why it cannot be prosecuted as a hate crime and is better regarded as a hate incident—a form of protected speech under the First Amendment. Despite this fact, the Sacramento police still recognize—as Gavin Newsom does—that action must be taken to prevent hate speech from escalating to the severity of threats or actual violence against those it targets. This is precisely why they urged anyone with information related to the incident to come forward (ABC10).

While hate speech is not illegal in California, hate crimes are illegal. Even so, this does not mean that action cannot be taken to prevent this type of expression from threatening the safety of its citizens. California vs. Hate, a multilingual hotline, was developed based on a pre-existing model, LA vs. Hate, and launched in May 2023 for this exact purpose. California vs. Hate not only tracks both hate crimes and hate incidents, but it also helps to connect state residents to important resources, such as therapy or legal aid (Lynem 2023). The First Amendment does not protect all speech—which is why California is not obligated to protect all of it either. The current policy trajectory is one which suggests that the state will continue to respect the right to freedom of speech enshrined in the First Amendment of the U.S. Constitution, but that it will not tolerate those hate crimes inspired by it.

For your consideration: Given the proposed link between hate speech and hate crimes in California, what kind of policy do you believe would best combat its effects without violating the First Amendment?

Figure \(\PageIndex{1}\): People Protesting Hate Speech in 2016 (CC BY 2.0; by Fibonacci Blue via wikimedia)