The White House issued a statement today about the protests that are going on at
Columbia University. We're basically a bunch of student protesters. Protesters, some of
whom are students, maybe not all of them, whatever, have taken over
campus buildings and at certain campuses. I'm not sure Columbia or Yale or several
of these campuses just basically widespread violations of the law. You've got basically in
some parts in some campuses, you've got these camps being set up on the
campus where basically these pro Palestine protesters are living intents. Which again my constant
question about these pro Palestine protests is where do these kids have, Like don't
they have to study? Like when I was in college, I would not
have had the time to just live on the quad as finals week was approaching.
It's it's late April, like finals are approaching in May. Don't don't
you have to like study or something? Anyway, clearly not, it's the
answer. So the White House issued this statement, and it leads me to
want to talk a little bit about the First Amendment and this one term that
is used very often, the term is hate speech, and I feel like
that term is used a lot in politics, and it's one of these things
where when you hear that as a lawyer, which I am, sort of
you're you're sort of almost not sure what to do, how to handle it.
It's like it's one of these terms that people tend to use as if
it's a legal term of art when it isn't. Let me just read the
statement from the White House. President Biden has stood against repugnant anti Semitic smears
and violent rhetoric his entire life. He condemns the use of the term into
fada, as he has the other tragic and he condemns the use of the
term into fada as he has condemned the other tragic and dangerous hate speech displayed
in recent days. President Biden respects the right to free expression, but protests
must be peaceful and lawful. Forcibly, taking over buildings is not peaceful,
it is wrong, and hate speech and hate symbols have no place in America.
And again it's used. On the one hand, this statement from the
President is obviously trying to respect certain kinds of legal boundaries and legal principles that
we have in America. He talks about how you know, he President Biden
respects the right to free expression. Okay, So First Amendment principle of freedom
of speech that President Biden is respecting. He's he's acknowledging that there's a tenth
pole of the law here that he has to respect. But then he has
another tent pole of law that he's respecting. Protests must be peaceful and lawful.
Okay, So you can have protest demonstrations, but don't break otherwise applicable
laws geared towards public safety or order. All right. You can be on
the sidewalk, you know, holding a sign upholding what you believe, but
don't obstruct the sidewalk. You know. You can have a parade, but
go through the city process for having a parade. Don't just block traffic,
et cetera. Right, these are sort of tent poles of American First Amendment
law that yes, you have the right to freedom of expression, but you
have to comply with otherwise applicable laws. Yes, you can protest in favor
of, you know, I don't know, protests against environmental regulation. But
don't throw a rock through the window of the EPA's offices in Washington, d
C. Okay, throwing the rock through the window is breaking other laws,
otherwise applicable laws, and that's when you get out of the realm of what
is core protected First Amendment speech. So this statement by the President is fine
for what it is. I mean, it's it's not bad, and it's
clearly respecting these basic legal principles around the idea of American First Amendment law and
free speech. But then it goes in to this rhetoric about dangerous hate speech.
President Biden con condemns the use of the term intofada, as he has
the other tragic and dangerous hate speech displayed in recent days, forcibly, taking
over buildings is not peaceful, it is wrong, and hates speech and hate
symbols have no place in America. And he keeps using that phrase as if
it's a term of art. And I think a lot of people think that
that's some kind of legal term of art, that that's like a category of
speech that can be regulated a certain way, And I'm just here to tell
you it's not. Really, it's not a real term. What defines something
as hate speech, Well it frankly, it's in the eye of the beholder.
If I hold up a sign that says marriages between a man and a
woman. There are people who will look at that and say that I am
engaged in hate speech by saying that I don't think I am so. But
another person might hold up a sign that says, I hate these rosary clutching
get your rosary I hate those rosary clutching Catholics who oppose abortion. You can
literally have a sign that says I hate them, and someone might say,
well, that's not hate speech, even if it has the word hate.
Literally, hate speech is not really a category of law. Let me just
put that plainly. Hate speech is not a category of law. The fact
that speech is offensive to someone doesn't necessarily make it somehow outside the parameters of
core protected First Amendment speech. So what kinds of things are outside the parameters
of core protected First Amendment speech. Well, to understand that there's a couple
of things. First, there's certain kinds of examples that have always historically been
deemed something different from protected First Amendment speech. So one of these is called
incitement. Incitement is a kind of speech that you reasonably anticipate will directly lead
to imminent lawless action, unlawful action. If I am in front of a
ku Klux Klan rally, and it's a bunch of guys holding pitch forks and
torches and one guy with and baseball bats. And there is an African American
standing in front of this group of horrible races. And the guy at the
front, I'm gonna actually, I am not going to be in this.
I excize myself from this example. This is obviously a horrific example. Okay,
I'm taking myself out of it. Let's say there's a guy at the
front of a group of ku Klux klansmen and they all want to beat up
an African American, and the guy at the front of the group of ku
Klux klansmen yells, get him boys, and the klansmen rush forward to beat
up the black guy. Well, the guy at the front who yelled get
him boys his words, get him boys. He can't go in front of
the judge and say, your honor, I was engaged and I was speaking.
Therefore I'm protected by the First Amendment. You can't prosecute me for this
man being beaten up. Well, yes we can, because that's called incitement.
Okay. Incitement is again speech that you reasonably expect, speech that one
would reasonably expect will imminently lead to imminent unlawful activity. All right, that's
not a protected category of speech. The speech you use to conduct other kinds
of criminal affairs not protected. Okay, if you're engaged in conspiracy to engage
in wire fraud, and you and your buddy are talking through the plan,
you agree to the plan to specifically intend to commit wire fraud, you can't
go to the judge and say, well, Judge, we were talking while
we were engaged in this conspiracy fraud. No, that's not protected speech.
So incitement your plans to hatch a criminal conspiracy, you're talking, you're communicating
in the act of engaging in a criminal conspiracy, of hatching a criminal conspiracy.
Other kinds of speech that are not protected libel and slander, And libel
and slander the different levels that someone would have to prove in order to hold
you liable or convict you for libel and slander, depending on if you're talking
about a public figure versus if you're talking about a private individual or a non
public figure. But there are various kinds of things that are outside the parameters
of what is core protected First Amendment law, because what is really the core
of the First Amendment. What were the framers of the Constitution doing by including
this protection within the Bill of Rights within the first ten amendments to the Constitution.
Well, let's recall that America was composed of a group of religious and
political odd balls. Basically, England sent all their undesirables, several groups of
their undesirables over to the New World. Religious oddballs like the Catholics who first
settled in Maryland, the Quakers who settled Pennsylvania, this group, that group,
et cetera, and also as a bunch of people who objected to various
kinds of political problems that were wrong in England. And these were also people
very much influenced by Enlightenment ideals about freedom of conscience, etc. So the
idea was, we weren't necessarily concerned about everyone being able to have, you
know, total leeway to express themselves about anything. That the thing we were
most concerned about was speech regarding core questions surrounding politics, law, culture,
religion, things like that. That's the core of the First Amendment. Those
are the sort of, if you want to use fancier language, the normative
values that are enshrined within the First Amendment. We want people to speak freely
about these core concepts. So even in the way that First Amendment law has
sort of developed over the course of the centuries in America, there are different
levels of protection for say advertising commercial advertising, then there are for me going
on the microphone and talking about politics or law. Right, we can have
laws banning people from engaging in certain kinds of false or misleading advertising in the
context of selling commercial products. If I come on here and I'm making an
argument that the government disagrees with about Joe Biden. If I think if I
come on here and I say Joe Biden is senile and doesn't know what he's
doing, well, I mean the government basically the government can't prosecute me for
that, all right, Well, John Girardi's maybe, and maybe I would
be maybe I come on here and I'm telling a lie or something, but
it's on a disputed political point. Maybe I come on here and I'm saying
something that's a lie or arguably true or arguably not true. If it's about
politics, law, or religion, et cetera, there's I'm going to have
a much better constitutional defense then if I'm lying to you while trying to sell
you know, breakfast cereal or something like that. Okay, why because politics,
law, religion, culture, these are the things that are at the
core of the First Amendment. And notice how I've described all this, and
I've never once used the term hate speech because it's just not part of the
body of First Amendment law. I had a whole class about the First Amendment.
We never said the words hate speech because it's not really a thing.
It's only a thing in the minds of politicians, and people have repeated it
enough that there are people who think, well, well, those liberals they
pass those laws banning hate speech. No they didn't. There are no laws
on the books banning hate speech. You could not do it. It's not
really a definable thing, and its parameters are seemingly outside the bounds of what
can and can't be regulated. When we return, I want to talk about
the kinds of things in the context of these student protests quote hateful activity that
I think can be regulated, prosecuted the subject of lawsuits, and I think
might be and I think some of these universities might be looking at some hefty
lawsuits. That's next on the John Guardi Show. President Biden issued a statement
saying he was denouncing the hate speech that was happening at Columbia and other elite
universities surrounding protests in favor of Palestine and against the state of Israel. And
he keeps using this term hate speech as if it's a thing, And I'm
just making the point on this half of the show that it's not really a
thing. In First Amendment law, people use that phrase hate speech as if
it's some kind of legal category or a term of art that actually means something.
For those of you gun owners, it's kind of analogous to assault weapon.
How Like non gun people will say assault weapon as if it's like a
meaningful, discrete category of thing. And you, as a gun owner like
that, as you as someone who has expertise in guns. But what is
an I don't know what. If I don't know what an assault weapon is,
you certainly don't know what what is an assault weapon? I feel that
way as a lawyer. But when people say the term hate speech, it's
not a thing. What is hate speech? Is it just speech that you
think is hateful, because it's certainly not like a legal category that is that
First Amendment law has hashed out over the last two hundred whatever years to categorize
as like something that can be regulated the way like you know, false advertising,
giving or libel or slander or incitement, all these other kinds of categories
of speech that are subject to various kinds of criminal regulation or civil penalties,
or you could be liable for a lawsuit for some different kinds of speech that
we deem to be outside the core protections of the First Amendment. Hate speech
is not that there's some kinds of hate speech that are very much as we've
interpreted the First Amendment over the last two hundred whatever years, there are certain
kinds of speech that are quite hateful that are within the bounds of the First
Amendment. You know, if you come on a radio show, you probably
won't have your radio show for very long. But if you come on to
a radio show and say, you know what, they all filler and those
Nazis were pretty good guys, and ah, you know, Holocaust was that
real? You can come on a radio show and say that it's very hateful,
it's horrible, it's terrible, it's hate. You can if you want
to say that's hate speech, I guess I won't argue with you too much.
It's protected under the First Amendment. It's a core protected thing under the
First Amendment, undoubtedly. But there are certain kinds of hateful conduct that people
sort of interpret as speech or as expressive that can be regulated that I think
is happening on these campuses. Let me just kind of explain what it is.
So, universities are largely governed by Title six, which is part of
one of the Federals Civil Rights Acts, And basically what it says is,
hey, universities, if you're getting federal money, you can't allow discrimination basically
in any aspect of the university on the basis of and then we list out
our protected categories race, ethnicity, national origin, this, that and the
other. All right, So colleges and universities can't have like various kinds of
race based discrimination. Okay, if you're a college of university and you're like,
hey, we're only going to hire wide administrators, that's not gonna fly.
Your federal funding is going to be gone, all right. Your ability
to take students who are receiving federal loans, which is a huge source of
income for university gone, all right. So universities have to toe the line
and We've had this big debate over whether admissions policies universities that try to you
know, some universities tried to do affirmative action about whether or not that violates
those strips. Okay, but for the most part, the generally acceptable,
Prince accepted principle is universities can't discriminate on the basis of race. Now,
I think a big one aspect of some of these federal laws requiring universities not
to engage in discrimination is that students cannot be deprived of the exercise of other
rights. It's another sort of ten pole principle in some of this first in
some of this federal non discrimination law. And I think where these universities are
having problems is you have these people setting up pro Palestine camps on campus,
where the rhetoric against perceived Jewish, perceived Zionist, whatever, students is so
aggressive that it is intimidating, reasonably intimidating to these Jewish students to the point
where they feel like they can't walk to class normally. They feel like they
are hindered from the normal exercise of their life as students at a university.
There are reports of Jewish students from Columbia's parents were picking them up to get
them out of there. Right. We saw stuff early on after October seventh.
I think it was at some University of New York where like Jewish students
were being barricaded in the library with pro Palestinian protesters yelling and screaming to beat
them up. Like, so, here's the thing. It's one thing.
If you go out to a section of the quad, you have your pro
Palestine protest, you go home, you go back to your dorm. All
right, that's fine. You're not intimidating. You know, maybe you're holding
signs that have things that the Jewish students don't agree with, maybe that are
somewhat offensive to the Jewish students, Okay, but that's different from inhibiting the
Jewish students from their ability just to get from class to class, walk around,
just exercise their normal right to just be a college kid. In fact,
it might be violating federal law. And the problem for the university is
are you tolerating that? Are you saying that's okay. That's where some of
these universities I think could be facing some real legal jeopardy is because it doesn't
seem like in many cases they're actually doing enough to effectively stop it, because
it's not just a question of these pro Palestinian protesters are saying things that are
awful. Okay, I think the phrase on the river to the sea Palestine
shall be free. There's some people are saying, well, no, there's
nonviolent way to interpret that. They just mean they don't think that there should
be a state of Israel. Okay, Well, do you want all the
Jews dead? You want them all driven out? I think there's a very
easily horrible way of interpreting that. Some people say that there's a non horrible
way to interpret that. Some people say there's a horrible way to interpret I
don't know. Given the posture of Hamas, they seem to want the horrible
way regardless. It's not even so much the saying of horrible things. It's
the intimidation and inhibition, the inhibiting of Jewish students from the normal ability to
live out their lives as college kids. That's what's really I think for these
schools running a foul of federal law. They're going to put these schools in
jeopardy if they don't effectively take the steps to stop it. When we return
speaking of hate speed, we're going to talk about hate crimes and an incident
of a hate crime that occurred in Fresno recently. That's next on the John
Girardi Show. With all this discussion about hate speech, it then leads my
attention to, well, what about hate crimes? Now? Hate crimes,
unlike hate speech, hate crimes are a thing an American law. I thought
that was a good analogy to these the way that gun owners feel when politicians
use the word assault weapon, which is not really like a term of art
among gun owners, but people in media will use the phrases if it's a
real term of art. I feel the same way about the term hate speech,
where people will say hate speech has no place here, even though what
is hate speech? It's not actually a term of art that's really used in
First Amendment law. Well, hate crimes are kind of are a thing,
okay. Various states have an active, various different kinds of hate crime legislation,
and it's really kind of what it is. It's more of a sentencing
enhancement than anything else. It's basically, you have some otherwise bad crime and
if you can prove on top of it that the person was motivated by specific
animus against someone on the basis of and depending on your state's hate crime legislation,
what categories are protected here, on the basis of a person's race or
sexual orientation or ethnic origin, and blah blah blah blah blah blah blah.
Okay, so you can get a hate crime charge, but it's usually something
that's on top of some other criminal activity, and sometimes it's not always easy
to prove. If you're a guy wearing a NASCAR T shirt and you punch
a black guy in the face, if you're a white guy wearing a NASCAR
T shirt and you punch a black guy in the face, well you can't
just sort of assume, oh, look at this, he punched a black
person. That's also a hate crime. It's not really like that. You
have to have further evidence on top of that. If the guy yelled out
before he started punching the black guy, I hate all black people and I'm
going to beat you up because of my hatred for all black people, and
then proceeded to beat him up, well that might be enough evidence to charge
him with normal battery, but also a hate crime on top of it.
So it's hard to it's not always easy to tack on a hate crime charge
on top of a normal charge. You need like some pretty specific evidence to
show it. And it's also a thing of Some people have made this point
of racial bigotry is bad bigotry, you know, the unreasonable bigotry on the
basis of sex, unreasonable bigotry on the basis of sexual orientation. Okay,
I agree that various kinds of bigotry in those ways are bad. Committing violent
acts against those people for those reasons are very very That is all bad,
all right, I John Giraradi am not disputing that at all. I guess
what I don't get though, is why we sort of feel that it's the
reason why someone beats somebody up is really all that important at the end of
the day, At the end of the day, you're beaten up, And
does it really matter all that much if it was for some racially motivated reason
or not. Now, maybe in some contexts, maybe in some context it
does matter, maybe race based, whether it's lynchings or assaults or things like
that. You need a stiffer criminal punishment to disincentivize such conduct in the future,
to deter such conduct going forward. Okay, maybe that's reasonable, maybe
you're not going to get sufficient. But then it's also the thing of,
well, shouldn't our criminal punishment be sufficient to deter someone from engaging in that
conduct, regardless of whether it's a racially based motivation versus just a I want
to beat someone up motivation, or maybe the thought is that, well,
someone animated by racial animus is more willing to take on punishment, So we
got to make the punishment even more aggressive to make up for the fact that,
you know, they're out here doing something crazy on you know, some
white supremacist lunatic who gets some idea in his head that he needs to protect
the white race by getting in a drunken brawl with someone. Maybe we got
to make him think twice about that, even more so than whatever the criminal
punishment is for normal battery. All Right, maybe I can see those arguments,
But at the end of like I thought, though, one of the
examples that sort of made it seem silly. I remember this. This was
during the two thousand election and Al Gore and George W. Bush were debating
each other, and al Gore was mad at George W. For Texas in
his view, Texas, in his view, wasn't doing enough to combat hate
crimes, and he pointed to some example of this horrible example in Texas of
I believe it was an African American who was murdered by guys acting out of
racial racist animus, and George W. Bush made the rejoinder to al Gore
that those men were just convicted and found guilty of murder and executed. So
in that context, a hate an extra hate crime charge on top of the
normal murder charge wouldn't have done anything. The guys were already executed. That
there is no greater punishment you could give someone then ex by definition, there's
nothing more you can do beyond executing someone. All right. So anyway,
that's how hate crime legislation works. It's basically it sort of functions as a
sentencing enhancer for otherwise existing crimes. It's not enough to just say this person
is committing a hate crime of not liking African Americans, this person's committing a
hate crime of not liking white people, this person is committing a hate crime
of not liking the Vietnamese. Just not liking someone doesn't qualify you for a
hate crime. You have to commit some otherwise existing crime with a racial or
ethnic or whatever animus, and they have to show enough evidence beyond a reasonable
doubt that you had that animus. So this leads me to a story from
the Bee from yesterday. A man accused of a hate crime related to the
conflict in the Gaza Strip was arrested during a weekend concert in Fresno's Tower District.
Police said on Monday, multiple women working in a booth near Echo and
Hedges Avenue around four pm Saturday during Tower Porch Fest were confronted by a man
who they said was drunk and arguing with them about Palestine before the confrontation became
physical. The man, identified as Francisco Salmonego forty nine, fled on foot
after the scuffle with multiple women. Police said. Video going around social media
during the weekend showed samon Diego holding a woman at arm's length while throwing punches
at her. Two other women also got involved as all parties appeared to throw
punches before two others stepped in to pull the man away. Police set officers
found some di Diego a short distance away before he was arrested on suspicion of
felony robbery and three misdemeanors battery, a hate crime, and vandalism. He
was booked into Fresno County Jail, according to police, but was not in
custody on Monday. Jail records show none of the women required serious medical attention
immediately, police said. Organizers of the musical event that sets up small performances
on the front porches and lawns of homes in the Tower district commented Sunday on
their Facebook page about the incident. This type of hateful violence is completely unacceptable
and has no place at Tower Porch Fest or in our community. The post
said, we commend the porch host for promptly calling the police who arrested the
perpetrator. Hate crimes like this strike at the heart of the diversity, inclusivity,
and respect that Tower Porch Fests celebrates through the sharing of music and culture
from all backgrounds. Now, and I guess this is the thing where I'm
I'm not sure you know is a hate crime. This is to be a
misdemeanor hate crime. So what that means is so just you guys understand the
terminology. I think we hear the words, you know, felony and misdemeanor
all the time. The difference between a felony and misdemeanor is a felony is
a crime that is punishable by a year or more in jail. A misdemeanor
is a crime that is punishable by less than a year in jail. So
that's the difference. So we're gonna have a misdemeanor hate crime again. I
guess, I just don't know how useful that. I mean, if this
guy again, this guy was arrested for let me, let me just read
his list of charges again, felony, robbery, misdemeanor, battery, misdemeanor,
vandalism. I mean, if he was doing this while saying that he
loved the people of Palestine and but you're ugly and was beating these women up,
like like, does that make his conduct better? I don't. I
mean it is this, I guess. I'm not sure. You know,
we talked earlier in the segment that I think one of the justifications for hate
crime legislation that I think is legitimate would be deterrence that maybe someone motivated by
racial animus is more willing to engage in violent conduct than someone who isn't,
and therefore to have an extra the deterrent factor of that extra sentencing, maybe
that is something that would deter someone from engaging in that activity at a certain
point. Though, it's just sort of a thing of do you really need
that kind of education first before you decide not to you know, throw punch?
Is that a woman? It reminds me of in college, where there
are all these like posters about I'm taking the pledge to stand up to sexual
assault. You know, I'm taking the pledge against sexual violence, and I
was like, yeah, sexual violence is bad. I think taking I don't.
I think taking a pledge? What does that do. It's not like
anyone who engages in sexual assault goes into a thinking oh I thought sexual assault
was fine. Oh okay, now that I've been educated about this by people
taking the pledge, what does it matter that someone's committing sexual assault. I
think he's willing to break a pledge. Also, like, it's not like
I don't know, It's like some kinds of conduct are so obviously bad.
It's not like you need proper education or proper representation in the community showing that
the community is taking a stand against it. Like, no one takes a
pledge against murder because everyone realizes how ridiculous that is. Murderers are going to
murder regardless of clearly there's enough of a social stigma against murder. Murderer is
gonna murder regardless of the social stigma. Showing that pillars of the community take
the pledge against murder isn't gonna stop the guy showing that there's a sentencing enhancement
against you know, hate crimes. Is that gonna stop a guy doing something
like this? I don't know, I don't know. Maybe I'm wrong.
I'm willing to be I'm not. I'm not like dead set against this.
I'm willing to be convinced I'm wrong. But I guess I just wonder,
like the dynamics of like is how effective really is this? Does it just
kind of make us make the politicians who pass the hand hate crime legislation,
does that just make them feel better? And can they say I took a
stand against hate crimes, I took a stand against racial Okay, that's great.
But battery was already against law, Vandalism was already against the law,
robbery was already against law. He's already getting charged with all this stuff.
What do you do you're gonna add six months to his sentence by saying it
was also racially motivated. Okay, I mean, yeah, that's six months
of his life. He's not gonna get back. I mean, I guess
that's you know, that's significant. But I don't know. I guess I
just don't know that it's really having the kind of deterrent factor that you would
need to stop someone in the future from engaging in this kind of violence.
When we return, Donald Trump and Ronda Santis patch things up next on the
John Girardi Show. So it sounds like Donald Trump and Ronda Santis have buried
the hatchet a bit. They met in Miami a couple of days ago,
kind of a clandestine sort of meeting. I was joking on Twitter that the
meeting was Donald Trump asking Ronda Santis if he's ever shot a dog, because
you're not going to be Donald Trump's vice president if you're shooting dogs like Christy
Nome. So it appears they've patched things up. Trump issues a very you
know, positive laudatory tweet about Ronda Santis. Now the great the future of
Florida looks all right, very nice. Seems like we're kind of in the
hatchet, and I'm wondering, is this a prelude to Dysantis for a vice
president pick. I don't know. I think it would make sense. Frankly,
as much as Trump was constantly criticizing DeSantis about everything, Listen, people
who were rivals in Republican primaries have said worse things about each other than DeSantis
and Trump did. People who opposed each other more have become allies. You
know, Reagan and Bush ran against each other in the nineteen eighty primary,
and Reagan made Bush's VP. I don't think it would be crazy. And
I think DeSantis is kind of the naturally, you know, unless Trump picks
someone else for VP, you know, excluding whoever Trump might pick his VP,
DeSantis is kind of the natural Republican choice for twenty twenty eight, So
why not just usher that in. If he's the vice presidential pick, then
he's even more so the natural choice for twenty twenty eight. I don't know.
I just think it would be smart. I don't think the two guys
actually disagree with each other that fundamentally about that many things at all, So
I don't know. I'm hoping it's either jd. Vance or Rhonda Santis.
That'll do it for John Gardy Show, See next time on Power Talk