People can say ugly things to your face. They can even threaten bodily harm.
But if the person makes no aggressive action to follow through on the threat, then it’s probably protected speech under the 1st Amendment of the U.S. Constitution, Berrien County Prosecutor Michael Sepic said during a recent forum about how to address hate crimes sponsored by Southwest Michigan ALPACT (Advocates and Leaders for Police and Community Trust).
“Unfortunately, not every wrong results in a criminal law violation,” he said. “There’s a lot of wrong that goes on, but not everything results in meeting the elements and definition of a crime.”
Now, if the person threatens bodily harm in a social media post, that’s another matter. Sepic said.
“This is an interesting difference,” he said. “I can stand right here and say, ‘I’m going to punch you in the nose.’ But unless I do an act, … if there’s no act coupled with that, then it’s not a crime. But if I communicate that through an electronic communication, that’s different and that can be a crime.”
He said he thinks the difference is because when someone threatens to punch a person in person, that person can assess through body language and other cues if it’s really going to happen. But if you text it to a person, that’s a different fear.
He said a person could be found guilty of a misdemeanor under the electronic communications law if the person uses a telecommunications service provider to:
• terrorize, frighten, intimidate, threaten, harass, molest or annoy another person.
• threatens physical harm or damage to a person or property.
Sepic said an example of when a social media post is probably not a crime is if someone posts that they hate African Americans. He said it’s probably not be a crime since it’s not directed at a particular person and doesn’t state that the poster will do a violent act against African Americans.
Sepic said freedom of speech under the 1st Amendment is not an absolute right.
“There are some exceptions, just like there are with all constitutional rights, when it affects the liberties of other people,” he said.
Although hate speech is not one of the exceptions, he said there are several laws that can be used.
Besides the electronic communications law, he said other laws include ethnic intimidation, terrorism, stalking, posting messages through electronic medium and inciting to riot.
He said terrorism is the law most often used by his office. This law makes it a felony to threaten to do a violent act that is intended to intimidate a civilian population.
An example of terrorism is when someone calls a school, saying there’s a bomb in the womens’ bathroom.
He said this is a crime even if there is no bomb because of the disruption it causes.
“In this statute, it’s either threatening to do an act or making a false report of an act,” he said.
The problem is that being found guilty of terrorism is a 20-year felony. And if it’s a student who made the bomb threat, it’s hard to send that student to prison for 20 years.
He said some legislators are looking at changing the law so there are more options.
Sepic said he can only prosecute crimes as defined by laws passed by state and federal legislatures.