Should Anti-Semitic Calls for Violence Be Illegal?

The fine line between ugly words and true threats


Zach Weissmueller

Activists and prosecutors in the picturesque mountain town of Whitefish, Montana, believe police prevented a bloodbath when they arrested 29-year-old David Lenio.

"Best way to counter the harm #jewish #policies is causing [sic] is #ChapelHillShooting styling [sic] killing of #jews till they get the hint & leave," one of his tweets read. In another, Lenio said he was "not even opposed to shooting up a random school like that sandy hoax stunt only realer."

As University of California, Los Angeles law professor and Washington Post blogger Eugene Volokh points out, "Speech can't be suppressed because of the ideas it expresses, no matter how offensive and wrong we might view those ideas to be." But that didn't stop authorities in Montana from locking Lenio up for five months over charges that would later be dismissed.

Lenio's journey from the keyboard to the jail cell began on February 15, 2015, when the publicist and political activist Jonathan Hutson took to Twitter in the wake of two mass shootings in Copenhagen. Both were perpetrated by an Islamic extremist perturbed by cartoon depictions of the Muslim prophet Muhammad. Hutson noticed a series of ugly tweets being directed at him from a user called "Psychic Dog Talk Radio." This was Lenio's account, which is no longer publicly available on Twitter.

Hutson, who did not respond to interview requests for this story, dug deeper and found that Lenio had tweeted other anti-Semitic conspiracy theories and violent fantasies in the days leading up to their virtual encounter. He reported the behavior to authorities, who charged Lenio with felony counts of defamation and intimidation.

Montana's defamation statute at the time was so broad that it outlawed any speech that subjects individuals, groups, classes, or associations "to hatred, contempt, ridicule, degradation, or disgrace." The county argued that by making statements such as "the Holocaust has been proven a lie," Lenio was defaming all Jewish people.

The judge disagreed, siding with Lenio's defense that the law was "overly broad," dismissing the defamation charge, and deeming the statute unconstitutional.

"In America, prosecutions for speech that expresses racial or religious hostility almost never happen, in large part because prosecutors recognize that that kind of speech is fully protected" by the First Amendment, Volokh says. "This is a rare exception where for whatever reason the prosecutor decided to push the envelope."

Lenio was released from jail and is currently living with his parents in Michigan. He isn't off the hook, though: He's set to face trial on the second charge of intimidation, or making threats, in early March.

Francine Roston, one of two rabbis living in Montana's Flathead Valley, believes she was one of Lenio's potential targets. She says Lenio's tweets, coupled with the fact that he retrieved guns from a nearby storage facility in the preceding days, should be seen as "true threats" against the town's small Jewish population and school children.

"We do a lot of hand-wringing and praying and calling for action after school shootings. Here's a case where, potentially, a school shooting was averted," Roston says. "If this speech is not defined as threatening, then I think we're in danger."

Volokh admits the question of whether the tweets amount to true threats is a "much closer question." But Brent Getty, Lenio's public defender, believes his client's posts were simply the juvenile rantings of a frustrated young man. He points out that they were not directed at any particular target and may never have been discovered by the residents of Whitefish if not for Hutson's intervention.

"It'd be the equivalent of, back in colonial days, someone yelling on the street corner," Getty says. "And that's the biggest problem with the state's case, that these are not directed to a specific person."

NEXT: Enforcement

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  1. In fact, these kinds of hate speech laws are what incite violence in the first place. The top Nazi propagandists were all radicalized under Weimar anti-blasphemy laws (prohibiting anti-semitism). Basically they use these laws as an excuse for violence – since if the state can forcibly prohibit speech then they can too. Europe knows this, which explains what’s going on right now. They are trying to start up a new war. We need not follow their lead as Trump and Cruz are trying to do. (Hillary too – see her comments about the anti-Muslim ‘inciteful video’.)

    1. Where exactly did Cruz, or Trump for that matter, advocate hate speech laws? I mean, they both suck. Why make shit up?

      1. And the funny thing is, their supporters deny doing any such thing. “Nothing to see here, not trying to shut down free speech! I’m not a supporter! I’m for the other guy!”

        1. Not a supporter of either if that’s what you’re implying. Why not throw in a link that supports what you allege?

          1. How about this: You provide a link to ANY article from this web site about Cruz Trump or Hillary, and I’ll point out the line in which it states explicitly that they threaten the First Amendment.

            1. You made the allegation, and hate speech was the issue at hand, not the 1st Amendment in general-the burden of proof lies with you. Your reticence and the fact you’re trying to move the goalposts indicates to me that you’re just trying to avoid the issue now. Please feel free to prove me wrong. Where/When did Cruz and/or Trump advocate hate speech protections?

              1. Every protection of the First Amendment is to protect hate speech. Don’t believe it? OK fine. Then provide a link to ANY article from this web site about Cruz Trump or Hillary, and I’ll point out the line in which it states explicitly that they advocate hate speech protection AND that hate speech is protected by the First Amendment. If what you say is true then this should be easy. Finally let me remind you that YOU challenged ME – YOU accused ME of ‘making shit up’ without any evidence. You have a very short memory.

                1. ^This was the least useful conversation ever to occur on Reason. Well done, gentlemen!

                  1. Thanks, I’m happy to exceed Reason’s high standards. Do I get an award or a punch in the face?

                  2. How about: “This guy should be fed feet first into a woodchipper!”

                    Am I forgiven?

                    1. In my eyes you both win!***

                      ***Disclaimer: To any member of the FBI/NSA currently reading this thread, the previous two comments are said purely in jest and are not actually inciting violence/hatred.

                    2. Actually, I posted my above quasi-snark before I realized that there was a lengthy post and thread about Beyonce’s goddamned Lemonade already on the site, making any discussions of the “usefulness of other threads utterly moot.

  2. Despicable character deserving of an ass kicking to be sure, but an extended jail sentence? Thank god he was only a filthy right-winger wingnut! One shudders at the cognitive dissonance which would have arisen for our Leftie comrades had he been a Progledite and/or Islamist extremist (“This is why we should spend more money on mental care: he just needed help!” / “it’s only because there is Jooish apartheid in Palestine!” / “He was just reacting to societal racism!”).

    1. Sounds like an anti-capitalist.

      Hardly a right winger, and the anti-Semitism fits right in with proggie values.

      1. But, but progressives can’t be racist! It’s simply not possible!


  3. “But Brent Getty, Lenio’s public defender, believes his client’s posts were simply the juvenile rantings of a frustrated young man.”

    Dude’s 29 years old…

    1. If you had only gotten a whatever-studies degree from a public university, you’d know that 29 is the new 14!

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