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HomeMy WebLinkAboutItem B: Options to Address Hate Speech ECC UGENE ITY OUNCIL AIS GENDA TEM UMMARY Work Session: Options to Address Hate Speech Meeting Date: November 26, 2008 Agenda Item Number: B Department: City Attorney’s Office Staff Contact: Jerry Lidz www.eugene-or.gov Contact Telephone Number: 682-5080 ISSUE STATEMENT This work session has been scheduled to allow the council to consider options to address hate speech and hate crimes in the City of Eugene. BACKGROUND The council has indicated a high level of interest in taking steps to address hate-motivated incidents in the community. This work session follows previous City Council discussions and presents a chance for the council to consider legal options to deal with hate-motivated incidents in the community. Hate-motivated incidents are generally separated into two categories: hate crimes and hate speech. A hate crime is generally defined as an offense that would otherwise be punishable on its own, but was motivated by the perpetrator’s perception of the victim’s race, color, religion, national origin, or sexual orientation. The hate component is considered to be an aggravating factor, because it increases the harm to the victim. Both the United States Supreme Court and the Oregon Supreme Court have declared that hate crime ordinances which focus on prohibiting a forbidden effect (for example, intentionally subjecting another person to offensive physical contact), rather than prohibiting speech itself, are constitutional. In contrast to hate crime laws, laws that prohibit speech itself, no matter how offensive the speech may be, are unconstitutional except in very narrow circumstances. Governments generally may not punish someone solely because of what he or she says. Thus, the free speech protections in the federal and state constitutions substantially limit the City’s options for addressing hate crimes and hate speech. However, the council could pursue one or more of the following options: an amendment to the City’s harassment ordinance to address the constitutional flaws recently identified by the Oregon Supreme Court; creation of a civil cause of action for victims of hate speech; creation of a new offense of Intimidation III; and enhancement of penalties for certain offenses that may be related to hate incidents. 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. 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. As an example, Intimidation in the second degree (EC 4.726) currently carries a fine of up to $2,500 and a jail sentence of up to one year. The council cannot increase the jail time for this offense but could direct the City Manager to bring back an ordinance increasing the fine (to a maximum of $6,250). It is unclear whether an increase in the penalties for certain offenses will have a deterrent effect on the perpetrators of hate crimes and hate speech. In addition, offenses such as Menacing and Offensive Physical Contact often are totally unrelated to hate incidents. RELATED CITY POLICIES Eugene City Council Vision and Values – Safe Community: A community where people feel safe, valued and welcome. COUNCIL OPTIONS The council may: 1. Direct the City Manager to bring back an ordinance implementing one or more of the options discussed above. 2. Direct the City Manager to pursue other options to address hate speech and hate crimes. 3. Take no action. CITY MANAGER’S RECOMMENDATION The City Manager recommends Option 1, and more specifically, that the council direct the City Manager to bring to a public hearing an ordinance that (1) defines Harassment to deal with the Oregon Supreme Court's decision in State v. Johnson that declared the existing version unconstitutional, and (2) creates an offense of Intimidation in the third degree. SUGGESTED MOTION Move to direct the City Manager to bring to a public hearing an ordinance that (1) defines Harassment to deal with the Oregon Supreme Court's decision in State v. Johnson that declared the existing version unconstitutional, and (2) creates an offense of Intimidation in the third degree. ATTACHMENTS None. FOR MORE INFORMATION Staff Contact: Jerry Lidz Telephone: 682-5080 Staff E-Mail: jerome.s.lidz@harrang.com