The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A couple of people have e-mailed me about this talk by Attorney General Loretta Lynch at a Muslim Advocates dinner, and in particular about these passages:
[51:15] Now obviously this is a country that is based on free speech, but when it edges towards violence, when we see the potential for someone to lift—lifting that mantle of anti-Muslim rhetoric or, as we saw after 9/11, violence against individuals who may not even be Muslims but may be perceived to be Muslims and they will suffer just as well, just as much. When we see that, we will take action….
[55:10] Since 9/11, we've had over a thousand investigations into acts of anti-Muslim hatred, including rhetoric and bigoted actions, with over 45 prosecutions arising out of that….
I think it's important, however, that as we again talk about the importance of free speech we make it clear that actions predicated on violent talk are not America they are not who were they are not what we do and they will be prosecuted, so I want that message to be clear also.
Now, the legal rules are pretty clear:
1. "Anti-Muslim rhetoric," like anti-Christian rhetoric, anti-Mormon rhetoric and so on, is constitutionally protected against punishment (at least outside the narrow zone of speech intended to and likely to incite imminent crime, such as a speech to an angry mob outside a mosque urging it to storm the building).
2. True threats of violence are not protected against punishment.
3. Violent attacks on a person motivated by the target's religion, race and the like can be punished more severely than violent attacks that are not so motivated. (See Wisconsin v. Mitchell (1993).)
4. Even constitutionally protected speech might lead prosecutors to investigate whether the speaker is planning constitutionally unprotected criminal action or has already committed a crime. "ISIS is doing great work, and I really feel moved to join in that work" is constitutionally protected speech, but prosecutors might reasonably look into just what the speaker has been doing. (For some such investigation, such as wiretaps, they might need probable cause and a warrant; for other investigation, such as following the person or asking around about him, all they'd need is their own hunch.) The same is true of people who say, "All Muslims are terrorists, and I really feel moved to fight back against them."
If the attorney general is trying to suggest that the Justice Department will generally prosecute people for speech that "edges towards violence," or for "anti-Muslim hatred, including rhetoric," that's bad. If she's trying to suggest that the Justice Department will sometimes investigate such people in order to see if they have more than just rhetoric on their minds, that's fine. I'm inclined to read her statements as more the latter, especially given the imprecision that usually arises when people talk extemporaneously, rather than from a prepared script. But you can decide for yourselves what she was trying to say.