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
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Boston braces for rival protests week after Charlottesville
Antifa Attacked Reporter Out of Fear of “White Man with iPhone”
August 18, 2017
Are you afraid of white men with iPhones? Antifa claims to be. Their greatest fear must be Steve Jobs.
While Slate runs Dalia Lithwick’s whitewash claiming that the Alt-Left was just there to pet kitties and shine rainbows, three reporters were assaulted by the counterprotesters
Here’s the background on one of these assaults.
A WTVR CBS 6 journalist was assaulted by a protester in Richmond Sunday night.
The journalist, who was not on the clock but was recording video for the newscast on his phone, recorded video of a large crowd of Monument Avenue protesters passing by The Camel, a live music venue, on West Broad Street.
“Stop filming bro,” one protester yelled.
“I can film whatever I want,” the CBS 6 staffer replied in the video. “Get out of my face.”
The employee said protesters then put the flags in his face to block his camera view and intimidate him.
“That’s when then I extended my arm above the flags to try to get a better shot of the protest,” he said. “One member of the group hit the phone out of my hand and my natural reaction was to push them out of my personal space. Immediately following I was hit in the back of the head with a some type of blunt object.”
Police officers responded and the journalist was transported via ambulance to the hospital, where he received four staples in his scalp. He was later released from the hospital.
“This is not a peaceful protest,” he wrote.
Antifa could have blamed it on a few bad apples. That’s what defenders of the Alt Right contingent are doing. Instead they went with the scary “white iPhone man” defense.
This man ran at a crowd that was holding space for our murdered comrade with just his iPhone. Due to the intensity and context of this time people are very scared of white men running full speed at them with iPhones…
Would an Asian man with a Samsung have been any less terrifying? But, as I recall, at Mizzou, being an Asian reporter didn’t help much. But we don’t know whether he had an iPhone.
When this man ran up he was told people did not want to be filmed. He proceeded to film anyways. He was then told AGAIN that he was not to film people’s faces. He proceeded anyways. He intentionally ignored the denial of consent, still without identifying himself (though we still wouldn’t care), which was a threat to safety and should be considered in a context of perpetuating rape culture. Denial of consent by the media is still a denial of consent and is disgusting and parasitic behavior.
This reads like a social justice crybully with a light background in Marxism and intersectionality. Rape culture! Parasitic behavior! We have the right to publicly protest without being filmed!
Anyway this white drunk iPhone toting rapist was also targeting marginalized communities.
when the media thinks they have the right to expose people that do not want to be exposed they are perpetuating violence against marginalized or targeted communities.
Apparently public streets are now also safe spaces where you can assault people for taking photos.
At this point there were folks that felt they were in extreme danger as no one knew who this man was or what his intentions were. He was now considered combative, aggressive and advancing with violence.
Then he got hit. Once. We aren’t sure with what or by who but he did and it was all due to his own ridiculous, likely drunk, behavior.
Passive voice! Something hit him. And it’s hit fault because he was probably drunk. Random smears! Rape culture! Marginalized thugs!
This is what happens when you make people feel scared and purposefully incite anger.
This is what inevitably happens when you frighten a violent mob by taking pictures of its members.
Statement from The Rutherford Institute Regarding Violence at the August 12 Rally in Charlottesville
The City of Charlottesville had several lawful options it could have pursued to prepare for this weekend’s anticipated clash between protesters.
1. The City could have chosen to close the downtown forum altogether and move all three permit-holders to McIntire Park. It did not do so. Instead, the City Manager created a clear First Amendment crisis by revoking only one of the three downtown permits granted for this weekend, by failing to provide any evidentiary-based factual support for its actions, and by waiting to act until mere days before the anticipated rallies were to take place.
2. The City should have ensured that police were under clear orders to maintain law and order by establishing clear boundaries and safeguarding the permit zones. In fact, the City made it clear in press statements and in legal filings that it was preparing for demonstrations downtown by both sides whether or not the Unite the Right rally’s permit for Emancipation Park was honored. According to news reports, more than 1000 armed police, riot teams plus the National Guard were deployed to maintain law and order at the August 12 demonstration. As indicated by its preparations for the July 8 KKK rally, the City and law enforcement were completely cognizant of the need to establish barriers keeping the two sparring sides apart and to ensure that all three permit holders’ rights to access their respective spaces were respected.
3. The First Amendment provides for the right to peacefully assemble in public. In other words, no permit is necessary for citizens to assemble in public. The permitting process simply provides for space to be reserved by a particular group at a particular space for a particular purpose. While the government has the discretion to refuse permits based on reasonable time, place and manner concerns, it may not discriminate against a group based on the content of their speech. Whether or not a permit had been issued for any of the three downtown parks on August 12, the protesters and counterprotesters made it clear that they planned to exercise their right to assemble. Many of those assembled maintained their commitment to peaceful, nonviolent action. The rights of those who exercised their First Amendment rights peacefully and lawfully were diminished by those who opted to act with violence and in clear violation of the law. There is no defense for such actions.
End of Excerpt
If you want a great indication of how STUPID and DISHONEST the MSM is, I was watching CNN a while ago. There was a horrific ISIS attack in Barcelona w/ the now familiar van mowing down pedestrians like we’ve seen NUMEROUS times over a couple years, all over Europe. Wolf Blitzer[dumber than a bag o’ hammers, got shut out on Celebrity Jeopardy] asked aloud if maybe this was a copycat of Charlotteville! You can’t make this stuff up.
Nick, you beat me to the punch.
Heard this on talk radio this afternoon (I’m paraphrasing): Tomorrow’s MSM headline will be “Trump’s statement on Barcelona tragedy overwhelmingly rejected because he did not denounce David Duke.”
Follow the money.
The other side of the story that you’re not hearing . . . . .
Of course, only a Leftist would reach such a conclusion without even having listened to Ms Horton’s account of the events. I know this because you responded only 10 minutes after I posted her video and her video is 30 minutes long. You’ve been programmed like a simple robot to adopt only Leftist-approved messages and must automatically reject and tune-out any non-Leftist message, regardless of the facts, the evidence, or the truth–in fact, especially BECAUSE of the facts, the evidence, and the truth. You subscribe to the Leftist mantra, “If the facts don’t fit, you must omit!”
Haha! Because the “main stream media” (otherwise known as reputable news sources) are in business to keep “secrets.” I suggest you take a online course in Capitalism 101. You might learn something about business competition.
This is to “oh, I never thought of that” ralphie
Ralphie is nutz.
David, was Thomas Paine nuts?
If David says I’m “nutz,” then that means that I have struck a powerful chord of truth. Mindless Leftists who know they have no meritorious arguments, by default, accuse the truth teller who has all of the facts and evidence on his side a “nut,” “a person who forgot to take his meds,” “a tin-foil conspiracy loon,” “wacko,” or any number of other ad hominem attacks. As the old saying goes, when you have the facts, you argue the facts; when you have nothing you blow smoke, as David must do.
Oh, so the mainstream media has no agenda to keep the public in the dark, huh? You are truly a mindless Leftist robot (with apologies to robots everywhere).
Ralph, I listened to this video only to ask David what was false. You answered the question.
I don’t like the Nazi’s and the groups that surround the Nazi’s, but in the video she denies being a Nazi. She is providing her perspective and the left wing media is describing theirs. Melding the two together leads to a picture that is disturbing with regard to violence, but more disturbing is the potential denial of civil liberties.
Let me add. “He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”
Mr. Benson, you are out of order and in contempt.
The jury will listen to the witness without any further interruption.
Upon the event of your next outburst, you will be removed from the court and charged.
Have you ever considered another line of work, perhaps a position with Mad Max Waters?
A massive civil rights violation has occurred in this matter
and a thorough investigation of the plot against the constitutional and peaceful rally
must be conducted by the DOJ.
We may disagree with the speech and assembly of particular individuals and groups
but the Constitution provides for it.
Prof. Turley will morph into a legal and Manifestonal scholar
if the Constitution is abrogated during this aberrational Post-Constitutional episode.
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