Investigating the Wave of Racist Text Messages: Protected Speech or Criminal Act?
A surge of racist and threatening text messages targeting minorities across the U.S. following the presidential election has sparked widespread outrage and ongoing investigations. While these messages are hateful, legal experts suggest they may not meet the criteria for criminal prosecution, as they may fall under First Amendment protections.
The Threats and Their Targets
The messages, potentially numbering up to 500,000, featured menacing language aimed at Black people, immigrants, and LGBTQ individuals. Phrases like “selected for slavery” and instructions to report to plantations were among the vitriolic rhetoric. However, the messages lacked specifics—such as time or place—and were often impersonal, making them resemble spam.
Despite the disturbing content, experts believe the anonymity of the messages and their broad dissemination could complicate efforts to prove they constituted true threats.
First Amendment Protections: How Far Do They Go?
The U.S. Supreme Court has consistently ruled that even offensive or hateful speech is generally protected under the First Amendment. Landmark cases such as Texas v. Johnson (1989) and Snyder v. Phelps (2010) emphasize that speech cannot be punished simply because it inflicts pain or is disagreeable to society.
However, there are exceptions. Speech that qualifies as a “true threat,” incitement to imminent lawlessness, or “fighting words” can be prosecuted. In Counterman v. Colorado (2023), the Court clarified that a “true threat” must include an intent to commit violence and recklessness regarding its perceived danger.
The recent wave of texts, though vile, may not meet this standard. Messages like “selected for slavery” lack immediacy or plausibility, as slavery has been abolished for over a century. The impersonal nature and anonymity of the messages further dilute their threat potential.
Are Any Laws Being Broken?
Law enforcement agencies, including the FBI, have pledged to investigate the incidents, yet specific charges remain unclear. Ohio Attorney General Dave Yost pointed to a 2011 state statute prohibiting telecommunications that are “threatening, intimidating, or menacing.” However, legal experts caution that applying such statutes to anonymous mass messages could blur the lines between speech and conduct.
Typically, harassment laws require a physical component, such as stalking or repeated visits, which these messages lack. Courts might need to determine whether the act of sending such texts constitutes expressive conduct beyond protected speech.
Civil Remedies and Private Action
While criminal charges may face significant hurdles, victims are not without recourse. Telecommunications companies have already intervened, blocking accounts associated with the hateful messages. Continued harassment by blocked senders could meet the legal definition of stalking, opening avenues for civil lawsuits.
A Fine Line Between Free Speech and Harm
The debate over these texts underscores the U.S.’s broad protections for free speech, even when it comes at the cost of tolerating vile expressions. As H.L. Mencken once observed:
“The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels.”
This case highlights the challenges of balancing free expression with the need to protect individuals from harm in a digital age. The investigation continues, but the legal boundaries of hate speech remain a complex and contentious issue.
