Offensive humor leads to hate crimes prosecution

Offensive humor leads to hate crimes prosecution
Image: Library of Congress via LU Staff

A white student was recently arrested and charged with hate crimes for racially offensive humor in Illinois. Reason Magazine correctly notes that the arrest was improper, because the First Amendment protects racially offensive humor. The student was also given an in-school suspension. Reason agrees with the suspension, although it’s not clear to me that it was appropriate, because the offensive humor was displayed outside of school, and schools’ ability to punish out-of-school speech is often limited by the First Amendment.

As Reason notes:

Authorities arrested a 14-year-old white male student at Naperville High School in Naperville, Illinois, and charged him with committing a hate crime.

What the teen did was genuinely bad: He took a picture of a black classmate and posted a “slave for sale” ad on Craigslist. … Now the police are involved, and the teen faces two felony hate crime charges as well as a misdemeanor disorderly conduct charge. … For the authorities to charge someone with a hate crime, there must be an underling crime. Simply holding or expressing hateful views is not illegal—indeed, it is protected by the First Amendment. Prosecutors can consider hate crime charges only when hate is the motivating factor in the commission of a crime, such as assault or vandalism.

Since disorderly conduct is the only other item here, the hate crime charges presumably stem from that. Disorderly conduct is often a broad category of offense, and such is certainly the case under Illinois law: “A person commits disorderly conduct when he or she knowingly does any act in such unreasonable matter as to alarm or disturb another and to provoke a breach of the peace.”

The breadth of the Illinois disorderly conduct law is no excuse for this prosecution. Disorderly-conduct laws can’t be interpreted broadly to restrict speech, or even be interpreted as broadly as their literal terms to reach speech that alarms or disturbs people because of its offensive content (such as racially offensive humor).

Alarming or disturbing people doesn’t strip speech of its protected status under the First Amendment. The Supreme Court overturned a man’s conviction for engaging in a public, antisemitic rant in Terminiello v. Chicago (1949). It ruled that bigot could not be punished for “disorderly conduct” or “breach of the peace,” even though his rant outraged and offended listeners. As the Supreme Court explained, “A function of free speech under our system of government is to invite dispute. It may indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

Disorderly conduct laws can’t suppress speech just because it offends students. The California Supreme Court made this clear in its ruling in Braxton v. Superior Court (1973). It interpreted a law against disrupting schools narrowly to avoid violating the First Amendment. As it ruled, “neither the ‘content’ of speech nor freedom of association can be restricted merely because such expression or association disrupts the tranquility of a campus or offends the tastes of school administrators or the public.” Even though a state law banned conduct that “willfully disrupted the orderly operation of” a school, the law couldn’t be interpreted as broadly as its terms suggested, because the law, if “literally applied, would succumb to constitutional attack both because of First Amendment vagueness and overbreadth.”

Disorderly-conduct laws don’t reach speech just because it is racist and thus disturbs people for that reason. For example, Vermont’s Supreme Court ruled in Vermont v. Schenk (2018) that leaving Ku Klux Klan fliers at people’s houses wasn’t a violation of the Vermont’s disorderly conduct law, even if minorities disproproportionately received them. That law bans certain conduct that has the purpose of causing “annoyance or alarm.”

Schools that minors attend — unlike colleges — do have the power to punish in-school speech that is “patently offensive” for reasons unrelated to its political content, according to the Supreme Court’s decision in Bethel School District v. Fraser (1986). But many courts say that power doesn’t apply outside of school. For example, a judge ruled a school couldn’t punish a student for making a vulgar gesture to a teacher, when the student’s insulting gesture occurred nowhere near their school. (See Klein v. Smith (1986)).

So it’s not certain that this student should have been punished by his school. And even if the school acted rightly in disciplining him, that doesn’t mean police should have arrested him, or prosecutors should have criminally charged him, for his offensive humor. The fact that an institution has the power to punish people who violate its rules doesn’t mean those rules can be turned into criminal violations. That’s because the criminal law is always subject to the full force of the First Amendment.

By contrast, the First Amendment sometimes applies with less force to internal discipline governed by the rules of public institutions. Those rules are allowed to restrict certain kinds of speech by employees, high-school students, and public officials, even when that speech can’t be criminally prosecuted. Even when a student or employee can be dismissed or suspended over such speech, it doesn’t mean they can be criminally prosecuted or incarcerated for it. That’s especially true if the speech isn’t physically threatening or defamatory.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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