The Volokh Conspiracy - Racist Criticisms of Police = Felony?

The Daily News (Longview, Wash.) reports:

Hundreds of racist fliers have been left in the streets of this town north of Vancouver, Wash., apparently the result of a flap over the firing of a police officer. . . .

The cards showed a racial caricature [apparently depicting a chimpanzee wearing a police officer's hat -EV] and expressed support for the town manager, George Fox, who was suspended last week pending an investigation into the firing of a black police officer, Carl Mealing. . . .

"George Fox speaks for the silent majority," the cards read. "Make sure Ridgefield stays the way it should be. Washington state needs more officials like Mr. Fox." . . .

The police, the newspaper reports, say that this "is being investigated as a potential case of malicious harassment, punishable by up to five years in prison and a $10,000 fine." That strikes me as quite troublesome. The flier's distributor can surely be charged with littering, if the city would normally charge such people with littering regardless of the content of the material being strewn. But the content of the speech is fully protected, and doesn't fit within any First Amendment exception. (It would have been otherwise if the speech contained, say, death threats, but no such threats seem to have been made, unless the story is omitting the most troublesome part of the leaflets.)

The fliers are appalling, and should be loudly condemned. But they surely may not be legally suppressed.

	[Eugene Volokh, December 15, 2005 at 5:16pm] Trackbacks Racist Criticisms of Police = Felony? The Daily News (Longview, Wash.) reports: Hundreds of racist fliers have been left in the streets of this town north of Vancouver, Wash., apparently the result of a flap over the firing of a police officer. . . . The cards showed a racial caricature [apparently depicting a chimpanzee wearing a police officer's hat -EV] and expressed support for the town manager, George Fox, who was suspended last week pending an investigation into the firing of a black police officer, Carl Mealing. . . . "George Fox speaks for the silent majority," the cards read. "Make sure Ridgefield stays the way it should be. Washington state needs more officials like Mr. Fox." . . . The police, the newspaper reports, say that this "is being investigated as a potential case of malicious harassment, punishable by up to five years in prison and a $10,000 fine." That strikes me as quite troublesome. The flier's distributor can surely be charged with littering, if the city would normally charge such people with littering regardless of the content of the material being strewn. But the content of the speech is fully protected, and doesn't fit within any First Amendment exception. (It would have been otherwise if the speech contained, say, death threats, but no such threats seem to have been made, unless the story is omitting the most troublesome part of the leaflets.) The fliers are appalling, and should be loudly condemned. But they surely may not be legally suppressed.