Kiah Morris case: How far do free speech protections go in the US?
18 January 2019
Absolutely central to the US Constitution is the right to free speech. But how far can it be extended, in comparison with the UK? Kiah Morris was the only black woman in the Vermont legislature - until she quit in September after two years of abuse. This week, the state's attorney general agreed that the former Democratic representative had been subjected to racial and gender harassment, but he ruled against criminal charges, citing free speech. During the following news conference, just as Ms Morris took to the microphone, the accused white supremacist was seen entering the room. "This is not safe," someone in the crowd shouted out as Max Misch stood at the back of the church, wearing a Pepe the Frog T-shirt - a renowned hate symbol. "Why is this allowed?" asked another. "This is America," replied someone else. The First Amendment of the US Constitution protects free speech, even racist speech. But is it applicable to threats and harassment? And how would a similar case have unfolded in the UK - where there are more applicable hate speech laws? Attorney General TJ Donovan presented  a 10-page report of his investigation at Monday's news conference. "The online communications that were sent to Ms Morris by Max Misch and others were clearly racist and extremely offensive," it concluded. "However, the First Amendment does not make speech sanctionable merely because its content is objectionable." Aside from the online messages, the representative reported swastikas appearing on trees near her home. She said her car and house were broken into. She said she had seen suspicious cars outside her home. However, the police said they did not have enough evidence relating to these allegations, so they were unable to proceed with the case. Ms Morris quit her bid for re-election midway through her campaign last year, saying the abuse widened and reached an intolerable level after she backed a gun-control bill. On Monday, she said the constant harassment felt like "death by a thousand paper cuts". "For prosecution [relating to speech], there has to be what is considered a true threat," explains Lata Nott, executive director of the First Amendment Center in Washington DC. Prowling in someone's home certainly crosses the line, but the state authorities could not prove who entered Ms Morris's house. The former lawmaker said her allegations should have been better investigated at the time, but the police insist they followed their usual procedures. Many of the racist messages, however, were traceable and some could be linked to their senders. This is where the aforementioned "true threat" counts, legally speaking. Vermont lawyer Matthew Byrne, from Gravel & Shea law practice, explains: "The first amendment protects a broad range of speech in the US, and that protected speech is particularly broad when it dealing with political speech. "That protection starts to wane when there is an imminent threat of bodily harm, and the attorney general must have concluded there is no such imminent threat." Mr Donovan's report said intent could not be determined. Many of the messages were linked to her role as an elected official, which "raised the issue of whether they were intended to express political opposition through the use of hyperbole and insult", he said. While the first amendment is sacrosanct in the US, there is some dispute over defining and judging threats. "Various court circuits disagree on this," says Ms Nott. The issue, she explains, is whether they should be judged on the perpetrator's intent or whether a reasonable person would feel threatened by the behaviour. A 2003 Supreme Court case - known as Virginia v Black - is seen as a landmark ruling. In Virginia - and various other states - it is illegal to a burn a cross, as this is the calling card of Ku Klux Klan white supremacists. When three men who had been convicted for cross-burning tried to get their cases overturned on free expression grounds, the Virginia Supreme Court sided with them. However, when it was raised to the US Supreme Court, they looked at various cases and concluded that the First Amendment could not always be a permissible defence. "Burning a cross on your own property might be protected by the First Amendment, but burning it on a black family's lawn is seen as a threat of violence," says Ms Nott. The Vermont attorney general referenced this historic case in his report on Ms Morris. "In the UK, hate and harassment have a lesser protection in discourse," explains lawyer Mark Stephens, from Howard Kennedy in London. "Whilst protected speech must be robust, it cannot be used to cause harassment - a criminal offence." Expressions of hatred related to a victim's race, religion, disability, sexual orientation or transgender identity is illegal. Two or more messages - which are unwanted communication - can be seen as harassment, which can lead to criminal and civil proceedings. In the UK, it is now common to see people calling for messages on social media to be reported to the police; this is rare in the US as it is not considered a police issue. A key point in the Vermont case, says Mr Stephens, is that Mr Misch professes to enjoying "trolling people". He called it fun, according to the Burlington Free Press, a local news site. "That is where it is crosses the line under UK laws. He makes it clear his purpose is to cause harassment, alarm and distress," says Mr Stephens. This is not just a question of politeness, he adds. "You are not criminalising the speech, you are criminalising the behaviour. And that is a differentiation that is not seen in the US." Racism is punished in other ways in the US. Discrimination laws exist in various forms. Action can be taken against employers; an employer can fire a person for being racist if it is seen to affect their job; social networks can also choose to ban someone for racism or harassment. Some consider being banned for Twitter or Facebook as a First Amendment issue, but US lawyers say it does not apply in the same way to private companies. The First Amendment is considered as a protection against the government infringing on your speech rights. Consequently as a politician, you are expected to put up with more. The high threshold becomes even higher. Conversely in the UK, Prime Minister Theresa May called for consultation on a new law against intimidating political candidates last year. Diane Abbott -  an MP who has received a huge amounts of racist and misogynistic abuse online - did not support the proposal, saying special treatment for politicians was not appropriate. "There are already laws against violence, threats, intimidation, harassment and stalking,"  she wrote in a piece for The Guardian. She said they just needed to be implemented more readily. "Too often it is only when the situation has escalated beyond control that there is effective police intervention." A pensioner who sent a racially abusive letter to Mrs Abbott was given a 12-month community order last May. Ms Morris's case has never been heard in court. She could take civil action against the accused. She could also apply to reinstate the restraining order against Mr Misch. However, when talking to the BBC last year, she said too much onus is placed on the victim to force change. "The systems need to change to support individuals in office so that they do not have to live in fear and terror," she said. "These are incredibly violent times, and I do not feel any need to martyr myself or my family." In Vermont, the attorney general announced a new "incident bias reporting system" this week, after dealing with her case. He says it will be aimed at educating law enforcement, to help assess if harassment accusations can be dealt with under other laws, perhaps as civil or federal violations. "The system can do better," Mr Donovan told Vermont Public Radio. "It shouldn't just end with a call to the local police, who say they can't do anything."
While the first amendment is sacrosanct in the US, there is some dispute over defining and judging threats. "Various court circuits disagree on this," says Ms Nott. The issue, she explains, is whether they should be judged on the perpetrator's intent or whether a reasonable person would feel threatened by the behaviour. A 2003 Supreme Court case - known as Virginia v Black - is seen as a landmark ruling. In Virginia - and various other states - it is illegal to a burn a cross, as this is the calling card of Ku Klux Klan white supremacists. When three men who had been convicted for cross-burning tried to get their cases overturned on free expression grounds, the Virginia Supreme Court sided with them. However, when it was raised to the US Supreme Court, they looked at various cases and concluded that the First Amendment could not always be a permissible defence. "Burning a cross on your own property might be protected by the First Amendment, but burning it on a black family's lawn is seen as a threat of violence," says Ms Nott. The Vermont attorney general referenced this historic case in his report on Ms Morris.
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How can you measure threats?
Ms Morris's case has never been heard in court. She could take civil action against the accused. She could also apply to reinstate the restraining order against Mr Misch. However, when talking to the BBC last year, she said too much onus is placed on the victim to force change. "The systems need to change to support individuals in office so that they do not have to live in fear and terror," she said. "These are incredibly violent times, and I do not feel any need to martyr myself or my family." In Vermont, the attorney general announced a new "incident bias reporting system" this week, after dealing with her case. He says it will be aimed at educating law enforcement, to help assess if harassment accusations can be dealt with under other laws, perhaps as civil or federal violations. "The system can do better," Mr Donovan told Vermont Public Radio. "It shouldn't just end with a call to the local police, who say they can't do anything."
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Could Ms Morris take this further?