There is a troubling case in Panguitch, Utah where a woman has reportedly been charged with a hate crime for allegedly “stomping on a ‘Back the Blue’ sign” at a gas station. There is a national movement to add attacks on police as a category of hate crime in various states. This case is an example of the serious free speech concerns raised by such prosecutions. Many of us find this conduct to be offensive and obnoxious. However, it is also a classic form of protest and political speech.
The police affidavit states that a Garfield County police officer was conducting a traffic stop for speeding at a gas station when the officer saw a woman “stomping on a ‘Back the Blue’ sign next to where the traffic stop was conducted, crumble it up in a destructive manner and throw it into a trash can all while smirking in an intimidating manner towards me.”
The officer confronted the woman and demanded to know where she got the sign. While the woman claimed it was her mother’s., the officer said that the sign was clearly one of those made by the local Sheriff’s Office and thus “she had acquired it in our community.” He then arrested the woman and cited her “inconsistent stories” about where she found the sign.
That would be a pretty weak case of property destruction but the police then added a “hate crime enhanced allegation” due to “the demeanor displayed by [the woman] in attempts to intimidate law enforcement while destroying a ‘Pro Law Enforcement’ sign.”
The charge was brought under Section 76-3-203.3, which states a person who commits any primary offense — such as misdemeanor property destruction — with the intent to “intimidate or terrorize another person or with reason to believe that his action would intimidate or terrorize that person” is subject to a class B misdemeanor primary offense becoming a class A misdemeanor.
As a result, the woman could received up to a year in prison or a fine of up to $2,500.
The case run afoul of the First Amendment and controlling precedent in my view. We have previously discussed flag burning cases.
In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court voted 5-4 that flag burning was protected speech under the First Amendment to the United States Constitution. It is considered one of the core cases defining free speech in the United States. Brennan was joined by Marshall, Blackmun, Scalia, and Kennedy (Kennedy wrote a concurrence). I agree with the decision as did conservatives like Scalia, who Trump has expressed great admiration for. Justice Anthony Kennedy wrote a powerful concurrence where he famously stated:
“For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.
Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”
Congress has shown the same opposition to the decision as Trump. It passed the 1989 Flag Protection Act to make it a federal crime to desecrate the flag. That law was struck down in United States v. Eichman, 496 U.S. 310 (1990). The Court ruled that “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
In an interview, the late Associate Justice Antonin Scalia explained why flag burning is protected speech:
“If I were king, I would not allow people to go around burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged — and it is addressed in particular to speech critical of the government,” Scalia said. “That was the main kind of speech that tyrants would seek to suppress.”
If the American flag can be burned as protected speech, the same is true with “stomping on a ‘Back the Blue’ flag.”
Police are asked to perform a public safety role that many would find impossible. They are asked not only to put their lives in jeopardy every day but must also cope with citizens who heap scorn and insults on them. They are symbols of the state and some view them as personifications of systemic racism and violence. As such, they are often the subject of protests. It takes a great deal of training and discipline to ignore such insults and verbal attacks, but officers do so on a daily basis.
None of this makes the burning or desecration of flags any the less objectionable. Indeed, this week, many of us were appalled by a video of a young boy pulling a flag out of the ground in front of a house and tossing it to the ground — as a woman watched without apparent objection. It is incredibly sad to see a child warped by such hatred. However, this was not a hate crime. It was the destruction of private property, but the penalty cannot be constitutionally enhanced due to the attack on a flag.
Some insults are protected. There are even insults from city governments. For example, in Palo Alto, California, five police officers have filed a lawsuit against the city in Silicon Valley over a Black Lives Matter mural featuring a cop killer. The objection is to the depiction of Assata Shakur, also known as Joanne Chesimard, was convicted in the 1973 killing of a New Jersey state trooper. She subsequently escaped prison, fled to Cuba. The lawsuit states “Law enforcement officers, including Plaintiffs, were forced to physically pass and confront the Mural and its offensive, discriminatory, and harassing iconography every time they entered the Palo Alto Police Department.” National Police Association has petitioned for its removal.
The petition is obviously lawful and itself a form of protected speech. However, while the officers have every reason to be insulted by the mural, they have no legal basis in my view to seek its removal. The city is allowed to speak in ways that are offensive or ill-informed. It is also allowed to create forums for others to engage in such speech. The remedy in such cases is found in the court of public opinion.
It is long past time for the court to rule categorically against the “hate crime” concept. That is the real step beyond the line as the government can NEVER know what an individual’s motivations are and must never try to dictate or prohibit individual thinking.
Hate crime laws are stupid and illogical. No prosecutor or jury is able to read the mind of any perpetrator unless they testify under oath that they committed a crime because they hated the victim.
I personally disagree with the whole “hate crime” scheme. A black man mugging a white man is a crime, a white man mugging a black man is no more abhorrent and should be penalized the same.
It’s good to know that the Supreme Court can read the Constitution.
The Supreme Court should read Article 1, Section 8, wherein Congress is severely limited and restricted to taxing for only “…general Welfare…,” and to regulating only money, commerce and land and naval Forces, while it has no power to interfere with the possession or disposition of private property, or to “claim or exercise dominion” over the private property of individuals, per the 5th Amendment.
Why does it?
Why do actual Americans allow it to.
Prejudice and bigotry have become normalized. The Left defends discrimination against Asians in college admissions. Antifa thinks capitalism is fascist, and that destroying businesses, and their jobs, is fighting the good fight. Antisemitism is surging in the normalization of BDS, whose goal is the destruction of Israel, and pro-Palestinian rhetoric. Many take the position that the Iron Dome is unfair because it prevents terrorists from killing as many innocent Jewish men, women, and children as they would wish. It is deemed unfair for Israel to defend itself because it is stronger. It should just sit there, and take the bombings. Meanwhile, Democrat Tlaib introduced a resolution to halt the sale of weapons to Israel. 217 Democrats voted against TX-23, which would have recommitted to funding that Iron Dome. Israel was legally founded, and was an answer to the Jewish diaspora. But terrorists will never accept a non-Muslim nation in the region, let alone a Jewish one. Hamas charter stated its goal was the destruction of Israel, and Jewish genocide. Yet more and more Democrats are siding with the terrorists out there trying to restart the Holocaust.
More discrimination and prejudice that is applauded and mainstreamed:
– racism against white people
– racist slurs against black conservatives
– bias against cis-gendered people
– misandry
– prejudice against anyone who opines that biological males have an unfair advantage against biological females in women’s sports divisions, so there should be a transgender division
– prejudice against America and against anyone who identifies as patriotic
– prejudice and violence against cops
The list just goes on and on with examples and explanations of why a certain brand of bigotry is virtuous.
Perhaps we don’t need hate crime enhancements. Perhaps laws against property damage and domestic terrorism could address attacks meant to terrorize entire groups of people. There have been attacks on Jewish people sweeping the nation. Pro-Palestinian activists have chased down Jews, stabbed them, beaten them. Given enough time, we’ll become like Brussels. The Belgians probably thought it would never happen to them.
If someone spits on, destroys, or burns and American flag, it’s done out of hatred. Same with a Blue Lives Matter Flag. But we don’t need hate crime laws to address such property damage. We need to combat this hateful ideology with better reasoning, and a refusal to back down. Destruction of symbols and icons like the American Flag have been deemed free speech, and people are allowed to express hateful things.
The case was charged improperly.
How about the public gets to line up and slap that bee otch followed by charges being dropped?
All for this, raise your hand.
BDS is free speech too- put your money where your mouth is, darling.
Karen never said BDS is not free speech. It is, as she says, simple prejudice and bigotry. Your snotty remark is way off base.
Karen said, “Antisemitism is surging in the normalization of BDS, whose goal is the destruction of Israel, and pro-Palestinian rhetoric.”
BDS need not be anti-Semitic. If BDS continued AFTER Israel found an acceptable 2-State solution with the Palestinians, THEN I would agree it is anti-Semitic.
Google “Neturei Karta” if you want to learn about ACTUAL anti-Israel advocates.
Jeff, you do not know your history, nor can you defend what you say. There are stupid people in BDS that are not anti-Semitic. That is based on their stupidity of history and the facts. It is not based on their allegiance to what BDS stands behind. You are probably one of them.
Many of them are followers of leftism for the same stupid reasons. We know those people are ignorant because they cannot deal with facts or provide adequate facts of their own.
All one has to do is look at those that lead the BDS movement. That tells a reasonably intelligent person where they are coming from.
I should add, that when one peels the onion back one finds its major supporters support terrorism that extends past Isreal. Many hate America and American values. Others wish to place Sharia law ahead of the Constitution and some have called for the end of western civilization.
Jeff, you surround yourself with some pretty bad people.You need to start learning what you are talking about.
Jeff:
As I’ve told you before, Israel offered land for peace on 5 separate occasions. They were refused.
The charter for Hamas calls for the destruction of Israel and death to all the Jews.
I suggest you read this article on the roots of BDS. Just because some BDS organizers claim to not seek the destruction of Israel, doesn’t make it true. It is ironic that the road to a repeat of the Holocaust is paved with the good intentions of naive people who were duped because they didn’t do their research.
https://jcpa.org/unmasking-bds/
“BDS is more accurately described as a political-warfare campaign conducted by rejectionist Palestinian groups in cooperation with radical left-wing groups in the West. BDS leaders and organizations are also linked to the Palestinian Authority leadership, the radical Muslim Brotherhood, other radical groups, terror-supporting organizations, and in some cases even terror groups themselves such as Hamas. BDS boycott campaigns have effectively misled trade unions, academic institutions, and even leading international artists and cultural icons, with seemingly earnest calls for “justice” entailing the establishment of a Palestinian state living beside a Jewish state. These BDS supporters have been led to believe that the combined pressure of boycotts, divestment, and sanctions will force Israel to withdraw to the 1949 armistice lines, otherwise known as the 1967 Green Line, enabling a resolution of the ongoing Palestinian-Israeli conflict.6 However, as some commentators – including the New York Times’ Roger Cohen and Professor Norman Finkelstein – have pointed out, the BDS movement seeks to eliminate Israel even before addressing the Palestinian issue. As explained below, the publicized “demands” of the BDS movement state clearly that the endgame of this punitive global campaign is to cause Israel’s implosion as the nation-state of the Jewish people and enable the creation of another Arab-majority state in its place. The major challenge in understanding the BDS phenomenon is to expose its radical nature and camouflaged extremist goals. Some have begun to understand the real BDS challenge. In 2009, the European Court of Human Rights condemned the boycott of Israeli products by a French mayor as an act of incitement.7 Roger Cohen, a liberal critic of Israel, noted “the hidden agenda of BDS, its unacceptable subterfuge: beguile, disguise and suffocate.”8 In Cohen’s view, “Mellifluous talk of democracy and rights and justice masks the BDS objective that is nothing other than the end of the Jewish state.”9″