Oregon’s Stand-Against-Hate Initiative: DOJ compelled to document extralegal speech under amended intimidation statute.

First Amendment, Hate Crimes, Legislation

By: Ross Sempek

I realize I’m entering some dangerous waters here. But it is my conviction that a treacherous seascape shouldn’t stop me from sailing head-on into my doubts. Let me also say that I have enough self-awareness to know that my critique of reporting these so-called “hate and bias incidents” may fall on deaf ears due to the color of my skin and a resulting lack of experience with the wretchedness of racism. So I will make this clear: I’m not arguing that racism isn’t a problem. I’m not saying that it isn’t bad, or that it doesn’t make an indelible and negative impact on one’s psyche, and physical well-being. I’m not saying that life isn’t harder for those whose skin tone falls outside the spectrum of whiteness. These are all heart-rending truths of life in America for people of color.

Here’s what I am arguing: Racism shouldn’t be illegal, and I fear that we are getting closer to that being a reality. I say this because racism, or dehumanizing people different from “us,” is a human problem, and I’m convinced that it will be eradicated only when humans cease to exist. Murder is a similarly unending human problem that will continue to be a scourge regardless of the many unthinkable disincentives we invent. I once heard California Governor, Jerry Brown, say that not all human problems need legal solutions. This is what I mean when I say that racism shouldn’t be illegal. However, like with murder, that’s no reason not to regulate it – I just think that such regulation should come from us, not the biggest middle-man imaginable. But, the new stand-against-hate initiative, spurred by changes to verbiage in the Oregon intimidation statute, promises to inject the government into the vitriolic, yet, extralegal affairs of its citizens by amassing data on hate and bias incidents.

What exactly is a hate and bias incident? Here’s a definition from the stand-against-hate initiative:

  • Name calling; using a racial, ethnic or other slur to identify someone; or using degrading language.
  • Creating racist or derogatory graffiti or images/drawings
  • Imitating someone with a disability, or imitating someone’s cultural norm or practice.

Hate and bias incidents are also spelled out in SB577, the bill that amended preexisting language in the Oregon intimidation statute, 166.155.

“Bias  incident” means a person’s hostile expression of animus toward another person, relating  to the other person’s  perceived race, color, religion, gender identity, sexual orientation, disability or national origin, of which criminal investigation or prosecution is impossible or inappropriate. “Bias incident” does not include any incident in which probable cause of the commission of a crime is established by the investigating law enforcement officer.” (emphasis mine)

The impossibility of investigation is also made clear on the DOJ website: “This is a reporting and referral service. Reports submitted here may not receive an immediate response, and will not result in an investigation” So it’s nice to know that the crime of intimidation got separated from bias incidents in the official language, but for me it begs the question: If “criminal investigation…is impossible or inappropriate,” then why is it collecting data about these unverifiable extralegal incidents compulsory? Again, from SB577:

“Section 6 – (5)(a)  The  Department of Justice  shall:(A) In coordination with the  Oregon  Criminal  Justice  Commission, develop a standardized intake process for all reports  of bias crimes and bias incidents made to the department.”

My question is mostly rhetorical but it begs another question: What becomes possible now that monitoring of extralegal affairs (at the people’s behest, mind you) is etched into law? I don’t know this either, but I’m nonetheless concerned with the direction this is leading us.

The human problems of murder and racism culminated to etch a dark chapter in the annals of the pacific northwest, and I feel that a great deal of this stand-against-hate initiative stems from the unconscionable MAX train stabbings that threw a pall over Portland, Oregon in 2017. While riding on the MAX light-rail system Jeremy Christian approached two young women wearing hijabs. He then subjected the captive transit riders to a bigoted and xenophobic tirade. Three good samaritans intervened and tried to stop Mr. Christian, or at least calm him down and get him away from the women. But Christian snapped and stabbed all three of the men in the neck. Two died and one survived life-threatening injuries. Christian was found guilty in February of this year, and had his sentence delivered on March 27th. He could spend 67.5 years in jail before he’s eligible for parole. This horrendous, abject display of human nature will not be cured with laws, and even though the event ended in calamity due to Mr. Christian’s tenuous grip on reality, the intervention of fellow citizens is the model I believe in; one that will rarely lead to murder.

But if the stand-against-hate initiative was indeed informed by this incident, the language changes in SB577 aren’t a posthumous legal rebuke of Christian’s actions. What Christian did (before he stabbed 3 people) was actually illegal. He violated the Oregon intimidation statute 166.155 – intimidation in the second degree, specifically subsection (c). It was (and still is) a class-A misdemeanor, with first degree intimidation being a class-C felony. There was hopeful chatter about changing the second-degree punishment from a misdemeanor to a felony, and the linked article makes it sound like that happened, but it didn’t. Second degree intimidation is still a misdemeanor, and it was always a felony if two or more people were the assailants. Additionally, if this is any indication of the tenor of discourse surrounding hate-speech, the author of this article laments the lack of a felony charge for his intimidation, and only mentions the murders in a perfunctorily hyphenated afterthought.

Here’s what did happen to the law. in July, 2019. The new language of the statute, enacted via SB577, changes the word intimidation to the phrase bias crime, rhetorically bridging the amended law with the new stand-against-hate initiative. This name change didn’t do anything concrete, though. The language of the previous iteration of the statute made clear that bias was key to enforcing the law. This change in nomenclature just made it front and center. Another change was the addition of gender identity to the list of protected classes.   

I feel compelled to elucidate that I realize that we’re not there yet. My concerns about the threats to free speech stem from the legal gray area created by the stand-against-hate initiative, but racism isn’t actually illegal in Oregon and thus an argument against such an idea may seem irrelevant. But I urge the reader to look at what they did with the language and you might see reason for concern. These are hate and bias incidents. The word-choice here is intentional and transformative. These aren’t incidents of hate speech, they are actions. Full stop. Speech gets removed from the naming of these issues, even though speech is central to these incidents. This is what George Fish mentioned in his book “The First,” when he was talking about the paradox of hate speech. While it is a nasty byproduct of humanity, what we call “hate speech” is not expressly illegal in our free society because of its very designation as speech, not action. But once we redefine the speech as action in order to punish it, it is no longer speech – it becomes a justiciable event.

It is a waste of the government’s energy to try to tackle what is, in my opinion, the unsolvable problem of racism. I feel that open-minded people and communities have the prerogative to do the difficult work of combating racism by taking a multi-pronged approach combined with sustained effort. And even then racism will not cease to exist; it will just be lessened. What will cause more divisiveness, and concurrently erode our rights to speech, is when we employ the government as a third party to mitigate problems that aren’t actually illegal. Such as with these hate and bias incidents. It’s an unfortunate sign that our civic life is almost null when people look to the government to stitch together fabric of a community rent by hatred. Asking the law to step in to solve the unsolvable will only frustrate community conversations and act to divide us. We won’t notice the erosion of our rights to free speech because the powers that be will begin by getting rid of the unequivocally bad stuff.

Ross Sempek

Ross Sempek is a recent MLIS graduate and a Library Assistant at the Happy Valley Public Library just outside of Portland, Oregon. He comes from a blue-collar family that values art, literature, and an even consideration for all world-views. This informs his passion for intellectual freedom, which he considers to be the bedrock for blooming to one’s fullest potential. It defines this country’s unique freedoms and allows an unfettered fulfillment of one’s purpose in life. When he is not actively championing librarianship, he loves lounging with his cat, cycling, and doing crossword puzzles – He’s even written a handful of puzzles himself.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.