The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Two readers e-mailed me about the story "Anti-Semitic fliers found in neighborhoods across region" (The Washington Post, Julie Zauzmer), and in particular about this passage:
D.C. police spokeswoman Gwendolyn Crump also said it was not currently clear whether the fliers would be classified as hate speech, which is a crime to distribute.
I asked Julie Zauzmer, and she confirmed that this indeed captured Crump's original view. (The article has since been updated to clarify the issue.) But there's no "hate speech" exception to the First Amendment, and "hate speech" is therefore not a crime under D.C. law. (Particular statements that are sometimes labeled "hate speech" might be crimes, for instance if they contain true threats of crime, but they are not a crime called "hate speech," or a crime coextensive with any common definitions of "hate speech.")
Fortunately, when I e-mailed the spokeswoman to elaborate on this, I got a response with no mention of any supposed "hate speech" ban:
We are aware of the distribution of fliers. We have been tracking this, as it has occurred multiple times in the District over the years. We agree that some in the community may find the language troubling. MPD continues to monitor this issue. However it is protected speech under the First Amendment.
I've seen the flier, and it's indeed anti-Semitic (and ridiculous), but it does appear to be constitutionally protected, and no charges are being filed, either there or in Maryland, where the same leaflets were being distributed.
By the way, I've seen some people argue that dropping the fliers on driveways and doorsteps is littering or trespass, but the police concluded otherwise, and likely correctly—going onto people's publicly accessible property to drop off fliers is generally not illegal, which is why people are allowed to drop free newspapers on your driveway. Indeed, such distribution would likely be constitutionally protected (though a city might be able to enact an ordinance banning distribution to people who have explicitly put up a "No Flyers" sign or something like that). See, e.g., Statesboro Pub. Co., Inc. v. City of Sylvania, 516 S.E.2d 296, 297-99 (Ga. 1999) (holding unconstitutional an anti-littering ordinance that restricted home delivery of any printed or written material, despite exception for personally handing the publication to a willing recipient); Miller v City of Laramie, 880 P.2d 594, 597-98 (Wyo. 1994) (holding that the First Amendment precluded littering charges against distributor of free newspaper based on complaints from residents who found copies in their yards).