California city’s police begin documenting hate speech

Thursday, February 10, 2000

When William Petrasich went to the Laguna Beach, Calif., Police Department to report what he considered to be a hate incident — people yelling anti-gay remarks at him from a passing car — the police turned him away.

Speech, no matter how hateful, is protected under the First Amendment, they told him. No crime was committed, so there was nothing they could do.

Dissatisfied, Petrasich took his case public in a letter-writing campaign.

The result is a new police policy of documenting hate speech in Laguna Beach — even when no crime is committed.

This policy has sparked a debate about free speech.

Peter Eliasberg of the American Civil Liberties Union of Southern California says the policy is unconstitutional.

“I see no reason for the government to be keeping track of what you’re saying if what you’re saying is protected,” he said.

But Police Chief James Spreine says the policy is not an attempt to violate people’s free-speech rights.

“My intention never has been and never will be to inhibit people’s speech under the First Amendment,” he said.

Under the policy, officers will use “information reports” to document complaints of bias-motivated incidents that are not crimes. Spreine says information reports are used routinely to record tips and bits of information received from citizens on situations that are suspicious, but aren’t crimes, such as a strange vehicle hanging around a local school.

Spreine says reports on hate speech will be filed with other information reports, not in a special “hate-speech file.” These reports are usually purged in two years, he says.

Spreine says he decided to institute the policy because “there is always the potential that someone making these kinds of comments would commit a crime.” Documenting incidents of hate speech is important because the reports could be used to prove a history of bias-motivated incidents if someone does commit a crime later, he says.

The reports might also prove useful in solving a crime, Spreine says.

“Oftentimes it’s just a little tiny bit of information that leads us to the next bit of information that ultimately leads us to solve a crime,” he said. “If we can solve a crime based on the information we get from someone’s complaint, I think [the policy] has merit.”

Laguna Beach’s policy is not unique. Other police departments across the country routinely document hate speech.

Police in Phoenix’s Bias Crime Detail use “information cards” to document hate-speech incidents and other hate-motivated situations that aren’t crimes. Sgt. Jerry Hill says it’s important to document such incidents because hate speech may be a precursor to a hate crime. Also, by keeping a record of incidents police can prove a pattern of harassment if someone repeatedly targets another person with offensive comments. While making offensive remarks is not a crime, harassment is, Hill says.

Recording incidents of hate speech may also help prevent or solve a crime, Hill says.

“By calling the first time (you witness or are a victim of hate speech), you may give some information, a little detail that actually ends up solving the crime that happens an hour or two later,” he said.

In New York City, the police department’s Bias Incident Investigation Unit investigates and documents bias-related crimes and incidents, including those involving offensive comments. Detective Walter Burnes says the unit does not ordinarily investigate incidents of hate speech because speech is protected under the First Amendment. But speech that is threatening or directed at an individual is not protected and, therefore, would be investigated. According to Burnes, such speech includes racial slurs.

But UCLA law professor Eugene Volokh says slurs don’t fall into this category.

“Certainly threats may be legally punishable under law – threats are unprotected speech,” Volokh said. But “if you’re talking about a racial slur, that’s not punishable.”

Eliasberg agrees.

“Ethnic and gender labels are protected so long as they do not pose a reasonable fear of eminent harm,” he told the Associated Press. “We may not like that kind of speech, but it’s protected.”

But Volokh disagrees with Eliasberg over whether such policies for documenting hate speech are unconstitutional. Volokh says that although some people may find the policies disturbing, they are constitutional.

“The police are entitled to record what it is that people say so long as they don’t harass them, so long as they don’t prosecute them,” he said. “They can keep track even of constitutionally protected speech.”

Volokh warns, however, that such policies may hinder people’s speech.

“It is pretty clear that any such police action does have a tendency to chill people’s speech in some measure,” he said. “Especially if the police get carried away by this, it can be a real serious deterrent to people speaking and associating. I don’t think it’s enough to make it unconstitutional, but it might be enough for people to think hard about whether and to what extent they want to have such a policy and what safeguards they might want to have on that policy.”

The Associated Press contributed to this report.