There is an interesting case out of Chico State University in California on the criminalization of violent speech. Custodian Kerry Thao pleaded “no contest” last week to hate crimes after he advocated Asians “kill whites and blacks.” What was striking was the reports that the police fully investigated his past contacts and actions and found “no evidence that showed there could be any further threat to the public.” The question is why Thao pleaded guilty if that was the case since his views, while hateful and disturbing, would be arguably protected by the First Amendment. Indeed, professors have been making analogous statements for years without investigation, let alone criminal charges.
Google reportedly alerted the FBI about Thao’s comments. Officials then moved under “Red Flag” laws to seize four rifles and three handguns. Thao voluntarily surrendered the weapons and fully cooperated in the investigation, including sharing all of his social media postings.
Butte County District Attorney Mike Ramsey focused on his statement that “Chinese need to commit mass shootings against America for xenophobia and betrayal. Come on my Chinese folks, white graduating is open season for y’all.”
That is legitimately concerning and chilling language. However, after being held without bail, police reportedly found nothing beyond his violent speech.
In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”
The comments of Thao do not appear to reference to any particular day or event or target. It is hard to see how it would meet the Brandenburg standard. Yet, he pleaded guilty to a hate crime. That would seem to convert the hate crime law into a hate speech law. While there may be additional information, the coverage suggests that there was no separate offense or violation beyond the violent speech itself.
Under Penal Code 422.55 PC, a hate crime as a criminal act committed in whole or in part because of the victim’s actual or perceived disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics. What is not clear is the crime distinct from the speech. Otherwise, the prosecution would cross the Rubicon in charging speech as a hate crime.
Obviously, this is not about defending Thao’s views. I have defended faculty who have made an array of disturbing comments about “detonating white people,” denouncing police, calling for Republicans to suffer, strangling police officers, celebrating the death of conservatives, calling for the killing of Trump supporters, supporting the murder of conservative protesters and other outrageous statements. I also supported the free speech rights of University of Rhode Island professor Erik Loomis, who defended the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence. At the University of California campus, professors actually rallied around a professor who physically assaulted pro-life advocates and tore down their display.
Thao could have challenged his arrest under the First Amendment as well as the broad interpretation of the underlying state law. However, with a plea to time served, he may have simply wanted this case behind him and to avoid further delays and costs.