Below is my column in The Hill on the calls for hate crime and terrorism charges against James Fields and possibly others. The response is understandable, but the expansion of these laws raise serious free speech concerns that should be considered before prosecutors move beyond the current murder charge.
In a rare moment of unity in our country, leaders of both major parties joined in their call for investigations and prosecutions following the deadly protests in Charlottesville, Va. Officials have called for hate crime and terrorism charges against James Alex Fields Jr., 20, who is accused of mowing down counter-demonstrators and killing Heather Heyer, a 32-year-old paralegal.
It was a sickening act that came after a day of violence near the statue of Robert E. Lee. Fields is already charged with murder in Virginia, but Attorney General Jeff Sessions moved quickly to open an investigation for possible hate crime charges on the federal level. Such a charge could rekindle concerns over the expansion of both hate crime and terrorism laws, particularly in conflict with free speech principles.
Hate crime laws
The first challenge for a hate crime prosecution will be to determine if this was an act of specific hate from general rage. The hate crimes statute covers an attack that was motivated not by unfettered fury but particularized hatred of a victim’s race, religion, national origin, ethnicity, gender or sexual orientation. Fields may indeed have targeted people on that basis, but there would be serious questions over the applicability of the statute. There is no indication that he waited for particular people to enter the street, but mowed down everyone in his path.
While Fields is reportedly an admirer of Adolph Hitler and some of his victims were black, Heyer was white and the crowd was a mix of races and genders and religions. The Justice Department could argue that Heyer was killed in an act targeting blacks, but it will have to show that Fields was attacking counter-demonstrators generally. This is the long-standing objection of civil libertarians that hate crimes tend to be dangerously fluid and subjective — as opposed to the more concrete murder charges.
There is a more general provision under the Civil Rights Act of 1968 and Section 245 of Title 18 that makes it a federal crime to use force to willfully injure or intimidate any citizen “participating lawfully in speech or peaceful assembly” directed at opposing the denial of civil rights to other people. That provision, however, is more often directed at acts like the denial of voting rights. It has not been applied to a case like this.
There was violence on both sides of this demonstration with people showing up with shields, clubs and other weapons. Fields certainly seems to easily fulfill the hate aspect of a hate crime, but his prosecution could raise the question of whom or what he hated so much as to cause him to speed down a crowded street in Charlottesville.
National security adviser H.R. McMaster took the calls for prosecution into a different direction on ABC’s “This Week” and insisted that “anytime that you commit an attack against people to incite fear, it is terrorism.” As with the statement of Attorney General Sessions, the strong language from McMaster was commendable in assuring Americans that we will not stand for such acts of savagery in this nation. However, McMaster’s call to “extinguish” acts of hatred through terrorism laws triggers a predictable response for those of us in the civil liberties community.
While Fields cannot be charged with domestic terrorism under these facts, people, including CNN legal analyst Page Pate, have called for the expansion of the law. Lisa Monaco, President Obama’s homeland security adviser, echoed McMaster’s sentiments and said that “kind of violence, committed for seeming political ends, is the very definition of domestic terrorism.” The question again will be Fields’s “seeming political ends” in plowing his car into a crowd of people on a street.
Civil libertarians have objected for years over the expansion of terrorism laws after 9/11. Under the USA Patriot Act, a violation of federal or state criminal law qualifies as “domestic terrorism” if it is intended to coerce or intimidate a civilian population or to coerce the policy of the government. As with the hate crime provision, there are obvious concerns about the use of such a law in the context of a political demonstration.
The First Amendment sees no distinction based on viewpoints. They are all protesters and cloaked in the same constitutional protections — and subject to the same criminal laws for violence. Indeed, the demonstrators had recently succeeded in going to court to enjoin the denial of free speech by the Charlottesville City Council in refusing them a permit.
There are calls for the demonstration by white supremacists and nationalists to be investigated as part of the terroristic act (or under the Ku Klux Act). That raises the specter that violence by demonstrators would be subject to terrorism investigations more readily than the violence of counter-demonstrators. For example, the racist organizer of this event was assaulted the following day when trying to speak to the media. Was this terrorism by a person acting with “seeming political ends”?
Obviously, this is not the time when it is popular to raise such concerns. At a time of national rage, such constitutional concerns can appear precious or even disloyal. However, we have much to lose if we allow crimes like terrorism to expand dramatically into areas of unpopular but protected speech. What Fields allegedly did was not speech, it was murder. As we legitimately investigate a possible hate crime, we need to be careful not to lose that distinction.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him o