Hate speech isn't a crime — on Facebook or anywhere else

In 2016 Mark Feigin posted five anti-Muslim statements on the Facebook page of the Islamic Center of Southern California. They included the Trumpian sentiment, "The more Muslims we allow into America, the more terror we will see," and the claim that "practicing Islam can slow or even reverse the process of human evolution."

Feigin was engaging in disgusting bigotry, which is why the center understandably blocked him from making further comments on its page. But was he also committing a crime?

Not if the 1st Amendment means anything. As the Supreme Court has stated repeatedly, "the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Yet the California attorney general's office charged Feigin with violating a state law against making repeated contact electronically "with intent to annoy or harass." (In addition to this misdemeanor charge, Feigin is also charged with the felony of making a threatening phone call to the center, an accusation he denies. Threats aren't protected by the 1st Amendment, no matter how they're delivered.) Feigin's prosecutors focus on the opinions he uttered on Facebook, arguing that the "mere content and nature of the posts" establish that they "are meant to annoy and harass."

But speech is often viewed as annoying or harassing by those who disagree with it. Eugene Volokh, a 1st Amendment expert at UCLA Law School, has suggested that the attorney general's theory in this case is so broad that it could be used to criminalize critical comments posted on the Facebook pages of the National Rifle Assn. or a group supporting President Trump.

It's hard to imagine a more obnoxious group than the Westboro Baptist Church, the sect that holds demonstrations outside the funerals of U.S. service members who, in the church's demented worldview, have been punished by God for America's tolerance of homosexuality. Yet in setting aside a civil judgment against the church in 2011, the Supreme Court held that the protests were protected by the 1st Amendment because the church was expressing opinions on matters of "public concern." So, in his undeniably bigoted way, was Mark Feigin.

On Wednesday a judge is expected to decide whether to dismiss the charge arising from Feigin's Facebook posts. Those comments were hateful and repellent, but they were also protected by the 1st Amendment.

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