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Washington's Hate Crime Law And Its Use In Social Media Age

Paula Wissel
Tysen Campbell pleads not guilty to felony malicious harassment at his arraignment on December 11, 2015.

When does a posting on a social media site go beyond free speech to become a hate crime? That’s one of the questions that comes up when you talk about Washington’s hate crime statute.  Earlier this month, suspended Western Washington University, Tysen Campbell, was charged with felony malicious harassment, Washington's hate crime law. Two high school students in Edmonds, Washington were recently arrested for allegedly violating the same law. In both of these cases, the perpetrators allegedly posted racist threats online.Threats Allegedly Made On Yik Yak

In a Whatcom County courtroom on Dec. 11, 2015, Tysen Campbell stood silently next to his attorney as a not guilty plea was entered.

If found guilty, Campbell could spend up to five years in prison. He allegedly wrote “Let’s lynch her.” and other incendiary comments on the anonymous social media site Yik Yak about WWU Associated Students President, Belina Seare, who is African American.

Even before charges were brought, Western Washington University had already suspended Campbell and banned him from campus, an indication of how seriously schools, prosecutors and the broader society now views anything labeled a hate crime.

History Of The Law

Washington was one of the first states in the country to enact what came to be called hate crime laws.

It was in the early 1980s and lawmakers were reacting to a growing neo-Nazi movement in the Pacific Northwest. White supremacists were moving in, particularly into northern Idaho.

David Neiwert writes for the Southern Poverty Law Center blog Hatewatch and has followed the white supremacist movement since the late 1970s, when he was editor of a northern Idaho newspaper. He says, at the time, neo-Nazis were starting to organize throughout the area.

“And that organizing manifested itself in the wave of hate crimes that hit the Spokane area and we saw it over here in Western Washington as well,” Neiwert said.

Firebombings And More

Neiwert says there were firebombings, attacks on mixed race couples and instances of swastikas being painted on synagogues.

The leader of the notorious group The Order, which was based in Western Washington, got his start them. In the mid 1980s the group would commit some of the white supremacist movement’s most notorious crimes.

“They robbed 25 or 26 banks and armored cars and killed a radio talk show host in Denver [Alan Berg],” Neiwert said.

Later, the leader of The Order, Robert Matthews, was killed in a fiery shoot out with federal agents on Whidbey Island.

Alarm That Laws Didn't Have Enough Weight

In the early '80s, with the white supremacist movement starting to take hold, Neiwert says people saw a need to recognize that painting a swastika on a synagogue was different that just regular graffiti or attacking someone because of the color of their skin was more than just an assault.

“The laws on the books weren’t adequate to deal with the sort of added level of harm that these kinds of crimes caused,” said Neiwert.

Washington’s hate crime statute, on the books as felony malicious harassment, passed in 1981.

It added penalties to charges when the attack was because of the victim’s race, religion or national heritage. Later, the categories of gender, sexual orientation and disability were added.

Lack Of Universal Support

Vicky Munro is a research director at the University of Minnesota. She co-authored the book "Hate Crime in the Media: A History".  She says hate crime statutes haven’t always had universal support. She says some people say it doesn’t make sense to enhance charges for something that’s already a crime.

“You know, murder is murder, and it doesn’t really matter what the reason for it is, that this group or that group shouldn’t be privileged, you know, just because of who they are,” Munro said.

On the other hand, she says, the majority opinion, most states now have hate crime laws, is that there is a need for them.

”It’s sort of like terrorism, when you categorize a whole group at the mercy of your rage or hatred it becomes more of an overwhelming problem,” she said.

Physical Assaults Draw Attention, But So Do Social Media Postings

Since the early days of Washington’s hate crime law, there have been prosecutions for physical attacks.

In Seattle this year, a man was charged with a hate crime for beating up a Somali immigrant cab driver and calling him a terrorist.

Lately, though, there seem to be more high profile hate crime charges for what people say, rather than what they do.

And that raises the question, “What about someone’s right to freely express themselves, no matter how disgusting what they say may be?”

There Are Things You Can't Say

Robert Gomulkiewicz teaches constitutional law at the University of Washington School of Law. He says there are often heated debates about individual rights vs. free speech rights.

“Even though the First Amendment, when you just look at the words of the First Amendment seems like the government can’t regulate speech in any way, that’s not really the case,” he said.

Gomulkiewicz says there are exceptions.

“The clearest cases where governments can regulate speech is in the case of a threat,” he said.

He says Washington state lawmakers, who crafted the hate crime statute, tried to define what constituted a threat.

“When you get down to whether words are a threat, it just gets down to this test of whether there's a reasonable fear, you know, the person who's being targeted, do they have a reasonable fear that they're going to be harmed," he said.

Still, Gomulkiewicz says deciding what is a "true threat" or "reasonable fear" is open to interpretation. He says the context and consequences of the threat are important. 

Ultimately, in the case of Tysen Campbell and others similarly charged, it will be up to the jurors, who must review all of the evidence, not just the media reports, to decide.

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