The day after the terrorist attacks in San Bernardino, Attorney General Loretta Lynch attended a dinner in Washington held by the Muslim Advocates, a Muslim-rights organization. Lynch made no direct mention of the attacks but addressed the Justice Department’s responsibilities in light of what she called “a very disturbing rise in anti-Muslim rhetoric” in the United States since the terrorist massacre in Paris.
Lynch said (from C-Span’s transcript of the event) that the United States is “based on free speech.” Yet when speech “edges towards violence, when we see the potential for someone to lift . . . that mantle of anti-Muslim rhetoric . . . we will take action.” Lynch observed that since 9/11 the department has conducted “over a thousand investigations into acts of anti-Muslim hared, including rhetoric and bigoted actions, with over 45 prosecutions arising out of that.” Lynch added, “I think it’s important, however that as we again talk about the importance of free speech, we make it clear that actions predicated on violent talk are not America . . . and they will be prosecuted, so I want that message to be clear also.”
A day later Eugene Volokh, the eminent First Amendment scholar, wrote “the legal rules are pretty clear.” Three (of the four Volokh listed) are especially relevant here.
First, “anti-Muslim rhetoric, like anti-Christian rhetoric, anti-Mormon rhetoric and so on is constitutionally protected against punishment (at least outside the narrow zone of speech intended to and likely to incite imminent crime, such as a speech to an angry mob outside a mosque urging it to storm the building.”
Second, “violent attacks motivated by the target’s religion, race, and the like can be punished more severely than violent attacks that are not so motivated.”
And third, “even constitutionally protected speech might lead prosecutors to investigate whether the speaker is planning constitutionally unprotected criminal action or has already committed a crime.”
Reading the attorney general’s remarks in light of those rules, Volokh said that if the attorney general was trying to suggest that the government will generally prosecute people for speech that “edges toward violence,” or for “anti-Muslim hatred, including rhetoric,” wrote Volokh, then “that’s bad,” meaning it’s in conflict with the rules. But if she’s instead saying that the government will “sometimes investigate such people in order to see if they have more than just rhetoric on their minds,” that’s okay. “I’m inclined to read her statements as more the latter,” he said, given that she was talking extemporaneously, rather than from a prepared script.
Over the weekend Lynch evidently sensed that she had a communications problem (did she read Volokh?). And so on Monday she used a press conference announcing a civil rights investigation of the Chicago Police Department to try to clarify what she meant. “Of course,” she said, “we prosecute deeds and not words.” And: “violent action is what we would have to deal with.” Given the case law, there can be little doubt that the courts would make sure of that.
