Item B: Options to Address Hate Speech

Home Browse Search

The Oregon Court of Appeals has recognized that abusive racial slurs may support a claim of intentional infliction of emotional distress. Because it is already a recognized basis for a lawsuit, the council does not need to take any action to allow a victim of hate speech to sue for intentional infliction of emotional distress. However, plaintiffs in such cases are not currently entitled to attorney fees if they prevail in the litigation. The council could direct the City Manager to bring back an ordinance creating a variation of the tort of intentional infliction of emotional distress that entitles a successful plaintiff to collect attorney fees. The Oregon Supreme Court has declared that a person who sues another person for defamation or intentional infliction of emotional distress based on the content of that person’s speech is not entitled to collect punitive damages from the speaker – only compensatory damages. That rule would also apply to the City’s civil cause of action for hate speech. Obtaining a money judgment against a perpetrator of hate speech is one thing; enforcing it is another. Even if a victim of hate speech prevails in a civil action and is awarded attorney fees, there is no guarantee that the defendant will be able to pay the fees awarded to the plaintiff. Intimidation III The City Code already includes the offense of second degree Intimidation, in which a person threatens to inflict “serious physical harm” on another person because of the first person’s perception of the victim’s race, color, religion, national origin or sexual orientation. The offense of Intimidation in the second degree is taken directly from state law. Intimidation in the second degree applies only in instances of threats of “serious” physical harm. Although more research is necessary, the City Attorney’s office believes that the council could create another permutation of the offense of intimidation – Intimidation in the third degree – which would prohibit a perpetrator from intentionally subjecting a victim to alarm by threatening any physical harm to the victim because of the perpetrator’s perception of the victim’s race, color, religion, national origin or sexual orientation. In contrast to second degree Intimidation, the harm threatened would not need to be “serious” to qualify as Intimidation in the third degree. Intimidation in the third degree would be a Class C misdemeanor, so the council could choose to attach penalties to the offense of up to a maximum of a $1,250 fine and 30 days in jail. Penalty Enhancement As a final option to address hate speech and hate crimes, the council could increase the penalties for certain offenses that may be related to hate incidents, such as Intimidation, Criminal Mischief, Menacing and Offensive Physical Contact, but only within certain limits. Cities cannot impose a greater penalty for an offense created by City code than the penalty the state imposes for a corollary statutory offense. Intimidation, Menacing and Criminal Mischief all have corollary statutory offenses, so the council may not increase the penalties for those offenses beyond the penalties provided for in the state statutes. Offensive Physical Contact does not have a corollary state offense, but the council is limited in the penalties it can impose because the municipal court has no jurisdiction over felony prosecutions. In order to send offenders to municipal court, the council may authorize only misdemeanor penalties – not more than a $6,250 fine and not more than one year in jail.