Loretta Lynch: We will prosecute hateful rhetoric about Muslims that "edges towards violence"

Via BuzzFeed. To be honest, I’m not sure my headline captures what she’s saying. Watch the clip and ask yourself if she’s talking about hateful acts or hateful speech. Not so clear, is it? She mentions speech and rhetoric and the First Amendment but she keeps coming back to prosecuting actions. If all she’s saying is that she’ll charge anyone who acts violently towards Muslims, that’s not newsworthy. That’s her doing her job. If what she’s saying is that she’ll charge anyone who speaks violently about Muslims, that’s something else. She could have spoken perfectly clearly on this subject if she wanted to. The fact that she didn’t means she intended to be vague. How come?

You have the right to say you hate a particular person or a particular group. You don’t have the right to try to harm that person or group. One is speech, protected by the First Amendment, the other is action. The gray area is when someone uses speech to encourage someone else to act violently. Even then, speech is usually protected. You can say, e.g., “let’s kill the atheists” without fear of going to jail. If you say that, though, to someone who seems like he really does want to kill some atheists and there just so happens to be some atheists nearby at that moment, then you can be prosecuted for saying it. That’s incitement. The rule courts follow in analyzing a case like that is whether the speech was intended to produce, and likely to produce, imminent lawless action. Because of that, it’s almost impossible to be guilty of incitement in most situations. If you’re addressing an angry mob, you’re in the danger zone. Anywhere else — especially if your speech consists of writing, not spoken words, since writing can’t trigger “imminent” action — and you’re safe. Threats operate similarly. If you say “the atheists should be killed,” courts will chalk that up to hyperbole or political grandstanding and refuse to let the state prosecute for it. If you say it, though, to a group of atheists while your hand rests uneasily on your holstered semiautomatic, well, that’s different. That threat seems real. You can go to jail for that.

So, with that as background, what does this mean?

“Now obviously this is a country that is based on free speech,” she said. “but when it edges towards violence, when we see the potential for someone lifting that mantle of anti-Muslim rhetoric or, as we saw after 9/11, violence against individuals… when we see that, we will take action.”…

“I think it’s important 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 we are, they are not what we do, and they will be prosecuted,” she concluded.

Actions will be prosecuted? Yup, that’s typically how law enforcement works. Speech that “edges towards violence” will be prosecuted? That’s … sometimes how law enforcement works, if it meets the rule I described above about threats or incitement. If it doesn’t, though, then she’s talking out of her ass — or at least, she is for the moment. Some Democrats are jonesing for a new legal standard that would let the state charge people with “hate speech.” Is Lynch one of them? Is she going to try to prosecute someone for writing “kill all the Muslims” or whatever on Facebook, hoping/expecting that the Supreme Court will revisit its rules for free speech and allow that conviction to stand? Or is she just pandering to her audience (a Muslim advocacy group) by floating some legal gobbledygook about speech that “edges towards violence,” when in reality all she means are the threats and incitement that are already criminal under the law?

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Jazz Shaw 5:31 PM on December 01, 2022