The University of Minnesota’s College Republicans lit up a heated debate after painting the pro-Trump slogan “Build the Wall” on a campus bridge, a move that prompted protests and calls for its removal.
Instead, in the tumult leading to the 2016 election, University President Eric Kaler defended the mural as protected speech — denouncing the vandal who scrawled “Stop White Supremacy” over the sign.
Debate over the limits of free speech and whether it should be policed has intensified since the election. An increase in documented crimes against Muslims in Minnesota, combined with incidents nationally, have immigrant and minority communities on high alert. The Department of Justice acknowledges that many hate crimes are not reported to law enforcement, making trends difficult to track.
In June the city of Minneapolis launched a new statewide hot line for reporting hate crimes, joining cities such as New York City, Washington, D.C., and Seattle. In the announcement, Velma Korbel, director of the city’s Department of Civil Rights, warned of a rise in bigotry and xenophobia and said that, “in no uncertain terms,” hate-based actions had no place in Minneapolis, including “hate-motivated speech.”
How this will be enforced is yet to be seen, but trying to crack down on speech gets into legally tricky territory, said Jane Kirtley, media ethics and law professor at the University of Minnesota. The problem, she said, is that most speech — even hateful and demeaning speech — is protected under the First Amendment, a fact reaffirmed by the U.S. Supreme Court in June.
Colliding with First Amendment
When government tries to make decisions in investigating speech, it runs the risk of colliding with the First Amendment and creating a chilling effect, Kirtley said. That exposes a potential danger of the city’s new hot line, she said. “This is one of these things that strikes me as well-intentioned but probably not very well thought out in terms of what the constitutional implications would be.”
In Minnesota, there is no clear definition of “hate speech” or any single law addressing it. Some speech may be illegal under the Human Rights Act, designed to combat certain types of discrimination, such as in housing or the workplace. Speech may also reach the threshold of a criminal statute, such as “terroristic threats,” defined as a threat with the intent of committing a violent crime.
The law covering hate crimes is rarely simple. In November 2015, when Allen Scarsella shot protesters outside a Minneapolis police station, community members dogged prosecutors for declining to charge the incident as a hate crime. But under Minnesota law, they could have sought only a “penalty enhancement,” which would have actually been a lesser charge than the multiple felonies Scarsella faced.
Other high-profile incidents in Minnesota have sparked calls for hate crime charges and have even inspired lawmakers to push for stiffer penalties, though the measure did not pass. Last October, a woman was arrested after hitting another woman in the face with a beer glass because she was speaking her native Swahili in a Coon Rapids restaurant. Swastikas have appeared on north Minneapolis buildings and on a Jewish student’s dorm door at the U.
Korbel said these incidents and community concerns started conversations last summer about how to more effectively address crimes of bias.
“What we were hearing was that there were people who were afraid, who were nervous, who were insecure and who were uncertain about their place in the community,” Korbel said.
The city launched the hot line in June. In its first three weeks, it received 30 complaints — nine fewer than recorded by Minneapolis police in 2016. Of those, 14 have been deemed “viable” — ranging from assault to property damage — said Korbel, meaning they warranted further investigation.
The hot line has fast become a focal point of criticism in the blogosphere, where it was called a political move designed to quell speech in the wake of President Donald Trump’s election. One website dubbed it a “Sharia Hotline for Hate Speech Snitches” and included a comment by former Minnesota congresswoman Michele Bachmann, who labeled the hot line a stealthy means of imposing “Islamic anti-blasphemy laws on non-Muslims.”
Korbel said no complaints about speech have been made so far. But Korbel’s mere mention of speech in the initial announcement raised suspicions, said John Hinderaker, president of conservative think tank Center of the American Experiment.
Drawing the line legally
“The vast majority of actions and speech that are motivated by hate are legal,” said Hinderaker, who proclaimed free speech as dead in Minneapolis on the conservative blog Power Line. “It’s not a slight error. It’s frankly an astonishing misstatement of the law.”
Korbel disputed that contention. She said the hot line is an expansion of services already offered in the city, such as the 311 hot line, that don’t favor one political affiliation or religion over another. When somebody makes a viable complaint, the city passes it on to the police, FBI or the civil rights department.
“The hot line is not a tool to curtail anybody’s free speech, nor is it set up to compel anybody to worship or not worship in a way that they choose,” she said. “I would stress that anybody that believes that they’ve been the victim of a crime that’s based on their race, or their national origin, their gender, their gender identity, their religion — anybody can call the hot line number.”
Teresa Nelson, legal director for Minnesota’s American Civil Liberties Union chapter, said the line between hate crimes and protected actions or speech can be gray, and “the devil is going to be in the details” of how the city handles complaints in that murky territory. Nelson and other civil liberty advocates say they hope the hot line will help law enforcement and politicians better understand the nature and prevalence of these types of incidents.
Jaylani Hussein, executive director of CAIR Minnesota, a Muslim civil rights and legal advocacy organization, said the hot line is a “welcome initiative,” but he hopes it leads to more comprehensive work on stopping acts of discrimination, such as training for law enforcement on how to more effectively investigate when bias isn’t blatantly obvious.
“We definitely need more resources allocated for prevention and awareness,” said Hussein. “There aren’t really any resources available for hate crimes, or dealing with hate crimes, at all.”