Legal experts explain why teen cannot be prosecuted for racist rant
NEW PHILADELPHIA No criminal charge is expected over a racist rant in which a Dundee-area teen said he would shoot all Black people. The video, made in July, also referred to bringing back slavery.
An unknown individual shared the video again on social media this month with the comment, "Internet, do what you do best. Make him famous." It was reported to law enforcement on Jan. 8.
The words spoken in the 15-second video do not constitute the crimes of menacing or disorderly conduct, Tuscarawas County Prosecutor Ryan Styer wrote in a letter sent Friday to Sheriff Orvis Campbell.
Styer described the content of the video as "disgusting, abusive, and hateful."
"This rant, and any others like it, are not protected speech by virtue of the fact that it is laced with a pejorative use of the n-word, which can indeed be a fighting word in Ohio case law. The question here is not the constitutionality of the rant but, rather, whether it falls within the crime of menacing ...."
State law describes menacing as knowingly causing another to believe that the offender will cause physical harm to the person or property of the other person, the other person's unborn, or a member of the other person's immediate family.
"In this case, however, the video prompting complaints was not posted by the juvenile but, instead, it was posted five months later by an unknown person with a call-out to publicly shame the identified juvenile — an objective that seems to have been accomplished," the prosecutor wrote to the sheriff.
"(T)o prove the element that a particular person feared for his/her or his/her immediate family member’s safety, we would need to assess the circumstances of a particular witness to the original posting of the July video, not the January posting of the call-out video," Styer wrote.
The prosecutor wrote that disorderly conduct cannot be proven for the same reasons: no complaints at the time of the original posting in July, unclear circumstances, and delay leading to the posted call-out video in January.
More:Sheriff: Teen's racist rant not likely to result in charges
Whether speech can be criminally prosecuted rests on whether it poses an imminent threat, according to Martin “Marty” H. Belsky, Randolph Baxter Professor of Law at the University of Akron School of Law.
"Ordinarily, an individual has a right to make comments — racist, religious, anti-Semetic, anti-Black, anti-Catholic, anti-Protestant — and make those comments as long as it doesn't cause a clear and present danger to society," he told The Times-Reporter in a telephone interview. "We've had situations where people say, 'Go do X. Go do Y. Go do Z. And people go and do it, and it's still not considered to be enough to incite a riot."
As an example of speech that cannot be punished, Belsky cited a 1969 U.S. Supreme Court decision in a case from New York. The high court overturned the conviction of a man because the court did not believe that his remarks were so inherently inflammatory as to constitute “fighting words” that provoke the average person to retaliation.
He gave an example of a threat that could be punished: A man dresses in a white sheet, burns a cross, says "Follow me, we're going to go get them," leads the group to a place and says "Go in and do it." Even if the instigator does not enter the site himself, he can be prosecuted.
But if the same person takes the same actions and says "Go and do it," a day before or the morning before, Belsky said, "That's not specific. It has to be imminent."
Courts have also ruled in different cases about statements like "go get whitey" or "go get (Black people)," Belsky said. "The court has said that that's a generic statement. That's too general a statement. It doesn't meet imminent danger, imminent risk, imminent action and therefore it's not punishable."
More:Citizens group disappointed by sheriff's response to teen boy's racist rant
Attorney Robert Preston weighed in on the issue on Facebook. He made his remarks in response to individuals who expressed dismay that Campbell said the teen would probably not be prosecuted.
"Folks, last time I looked to be charged with a crime (an) actual crime had to be committed. In Ohio this could, arguably, be considered assault or menacing. However, both those crimes have to have an actual victim. A person, not a group or a class. The sheriff is doing his job and enforcing the law.
"He can’t, nor should he, arrest somebody because they say something upsetting or, admittedly, vile," Preston wrote. "Hopefully the school will handle this as appropriate and get this young man the counseling and redirection he needs."
Law professor Belsky said the teen could face school discipline if his comments violated school rules that were in place when he spoke.
"If you have rules in place that indicate what can and cannot be done, then disciplinary action can be taken against the student for what they say," Belsky said. "But you can't punish speech as speech unless you have a rule or regulation already in existence that gives fair notice what is allowable or not allowable."
Reach Nancy at 330-364-8402 or nancy.molnar@timesreporter.com.
On Twitter: @nmolnarTR