Attorneys: First Amendment protects hate speech, not hate crimes

Published: Apr. 16, 2021 at 6:38 PM CDT
Email This Link
Share on Pinterest
Share on LinkedIn

WICHITA, Kan. (KWCH) - After a 92-6 vote to move discussion on possible legislation forward, U.S. senators next week will likely vote on a hate crimes bill. With that comes a question of legal differences between hate speech and free speech and what rises to the level of a hate crime.

The proposed COVID-19 Hate Crimes Act is a response to a rise in racist sentiment against Asian Americans, fueled in part by derogatory language about the novel coronavirus’ origins in China. The legislation would assign a point person within the Justice Department to expedite the review of COVID-19-related hate crimes and provide support for local law enforcement to respond to such incidents.

The First Amendment to the Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. While most know what the First Amendment says, the waters can muddy when it comes to boundaries.

Eyewitness News turned to the legal director of the American Civil Liberties Union (ACLU) of Kansas and a private practice attorney to distinguish between free speech and a hate crime. The ACLU is a nonprofit dedicated to protecting civil rights.

“Really robust First Amendment protections is something ACLU has done since its inception,” said ACLU of Kansas Legal Director Sharon Brett.

With a rise in hate incidents across the U.S., we asked if hate speech is protected.

“Hate speech is free speech, so the Constitution protects people’s ability to say hateful and potentially emotional harmful things. That is a core component of the First Amendment right to the freedom of speech,” Brett explained.

But it can cross the line to a hate crime.

“Hate speech crosses over that threshold when it incites criminal activity or when it provides a direct threat to somebody, of violent or criminal activity,” Brett said.

The FBI hate crimes data for 2019 shows a total of 78 incidents reported in Kansas. We asked Wichita attorney Lyndon Vix with Fleesing, Gooing, Coulson and Kitch what elevates to a hate crime.

“If your commit a crime such as an assault or a criminal threat with that motivation, then the punishment for that crime is enhanced,” Vix said. “But you always have to have an underlying crime before the hate component comes into it.”

Brett and Vix agree, hate speech alone is not a crime.

“Any time that anyone in the AAPI (Asian American and Pacific Islander) community experiences violence or experiences discrimination as a result of their ethnicity or country of origin, (they can) contact us,” Brett said. “There are people who have your back and that hate has no place here in Kansas.”

Copyright 2021 KWCH. All rights reserved.