Item B: Options to Address Hate Speech

Home Browse Search

Amendment of the Harassment Ordinance On August 14, 2008, in State v. Johnson; the Oregon Supreme Court declared the state’s harassment statute unconstitutional under the Oregon Constitution. The court based its decision specifically on the “abusive language” portion of the harassment statute, which provides: A person commits the crime of harassment if the person intentionally . . . [h]arasses or annoys another person by . . . [p]ublicly insulting such other person by abusive words or gestures in a manner intended and likely to provoke a violent response[.] ORS 166.065(1)(a)(B). Eugene Code section 4.726 contains an identical provision. The Oregon Supreme Court declared that the harassment statute is unconstitutional and overbroad because it regulates protected speech. The court explained that the state may not criminalize speech, even if it is intended and likely to produce violence, unless the violence is imminent. The harassment statute does not include an imminence requirement and therefore sweeps too much protected speech within its reach. Eugene Code section 4.726 is identical to the state’s harassment statute and is unenforceable in its current form. If the council wishes to try to preserve the City’s harassment ordinance, the council could direct the City Manager to bring back an amended ordinance that includes an imminence requirement and attempts to address the constitutional flaws noted by the court. Alternatively, the council could wait to see if the legislature amends the state version of intimidation in response to State v. Johnson before amending the City Code. Civil Cause of Action Another option to address hate speech would be for the council to adopt an ordinance that authorizes victims of hate speech to sue in circuit court for damages and provides for an award of attorney fees to the prevailing party in the lawsuit. At least two civil causes of action already exist which may, in some cases, create a remedy for the victims of hate speech – defamation and intentional infliction of emotional distress. Defamation may not provide a remedy in many cases, however, because hate speech, while hurtful and despicable, usually does not assert facts that can be classified as either true or false. The tort of intentional infliction of emotional distress may provide a remedy for a victim of hate speech. The elements of the tort are: (1) that the defendant intended to cause plaintiff severe emotional distress or knew with substantial certainty that his conduct would cause such distress; (2) that the defendant engaged in outrageous conduct, i.e., conduct extraordinarily beyond the bounds of socially tolerable behavior; and (3) that the defendant’s conduct in fact caused the plaintiff severe emotional distress.