Words Alone Can’t Harm You

Haters gonna hate.  But in Boulder County, Colorado, haters who say something are going to get convicted of a hate crime based on their words alone.




Zachrey Harris, 23, was convicted April 6 of ethnic intimidation, a class 1 misdemeanor, for using racial slurs and comments — like “get out of my country” — during an argument that left University of Colorado student Oluyibi Ogundipe with broken bones in his face in September. Harris was not accused of assaulting the Nigerian native, but police said he was the main person using the hateful language that fueled the fight.


Harris’ conviction on the misdemeanor charge was the first of its kind in Boulder County, and legal experts said it was a rare prosecution in the state in that Harris was accused of using words alone and not resorting to physical violence.


Sure, District Attorney Stan Garnett realizes that Harris’ “crime” was the mere hateful speech, but he doesn’t see a problem.


Garnett said he believes the state’s bias-motivated crimes statute does not infringe on anyone’s civil liberties, and his office intends to continue charging and prosecuting violators under the law as long as such behavior continues.

Up to now, the debate has centered around whether an otherwise criminal act, such as an assault, should be subject to enhanced penalties because of a connection between the hate and bias against the person assaulted.  Garnett explains:




Garnett countered that while the First Amendment protects free speech, the Supreme Court has recognized that the government can prohibit some speech that might cause a breach of the peace — like yelling fire in a theater when there isn’t one.


“You don’t have a First Amendment right to use expletives in certain situations if they might provoke violence,” he said.


Garnett said district attorneys across the state have been prosecuting harassment cases for decades, and people only tend to raise the First Amendment issue when bias-motivation is involved.


“From the legal perspective, it’s not different from any other harassment,” he said. “You can think what you want to think, or say what you want to say, but you can’t harm another person or harass and intimidate another person for any purpose.”


There are an awful lot of tricky interrelated arguments in Garnett’s statement, but you wouldn’t know it from his rationalization.  It’s constitutional nonsense, the sort of ravings that come from people who believe they get to take snippets of what’s believed by some to be the law and weave it into a rights (and wrongs) of their own imagination.

Calling a person a name isn’t harassment.  Garnett, no doubt, knows it, but can get this argument past most people.  Yelling fire in a movie theater, the classic example of unprotected speech that never was, may be unprotected under certain circumstances, but it’s not criminal. 

“From the legal perspective,” to borrow a phrase from Stan, it’s completely different.  But as a District Attorney, he knows that most people will accept his legal arguments at face value, knowing nothing better, and will generally agree that hate speech is a bad thing which ought to be stopped.  Indeed, nobody is out there lobbying for more hateful speech, except maybe Fred Phelps, and he’s a complete whackjob, protected though he may be.

There is someone, however, who should have realized that the prosecutor’s arguments were legally frivolous, and, as it happens, has the power to put a stop to the stupidity.  Yet the judge not only presided over the trial that criminalized mere words, but allowed the conviction.  Curiously, there’s no mention of a judge in the story.

What can’t be forgotten is the mounting tension between equality and free speech, where societal efforts to end prejudice and hatred, itself a fine goal, comes at the price of the First Amendment.  The battle is difficult enough to address on the level of violent act plus hate equals enhanced crime.  By removing the violent act and prosecuting based solely on hate speech, the battle is over and free speech has lost.


One thought on “Words Alone Can’t Harm You

  1. Rick Horowitz

    This will go a lot easier for everyone involved when you guys just admit that the Constitution is dead. Kaput. No longer of any effect in this country or any other.

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