When Does Freedom of Speech Become a Hate Crime in Idaho?

The arrest of two pro-Palestine protesters accused of malicious intimidation for allegedly A Jewish man in downtown Boise has raised questions about what exactly was said and the limits of free speech.

The two women were arrested on July 4 after a confrontation with a man wearing a yarmulke who was sitting with his wife on a restaurant patio. Ada County prosecutors have charged the women under Idaho’s hate crimes law.

But Boise police have pointed out nuances in the state’s law. A flyer sent by spokesperson Haley Williams on July 11 in response to questions from the Statesman shows how to report hate crimes. In it, the police department defines hate crimes and says that free speech is the right to express ideas without government censorship.

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The flyer included examples of offensive language that generally do not constitute a crime. Examples include using racial slurs, accusing someone of trespassing because of their race, or urging someone to go back to their country.

If someone spray-paints a swastika on a house to intimidate someone from a protected class, that could be malicious harassment. But if it is random or not specifically targeted at anyone, it would be investigated as general property damage, the flyer said.

“Our law does not criminalize the mere speech. … The speech must also be accompanied by an act,” Jodi Nafzger, an education attorney at The College of Idaho who has taught both criminal law and criminal procedure, told the Idaho Statesman. “… Tough decisions have to be made on the spot by the officers making the arrests.”

Protesters charged under Idaho hate crimes law

Idaho’s malicious harassment laws prohibit targeting someone based on their race, color, religion, ancestry or national origin by injuring them, damaging their property or threatening them. The women were charged with threatening the man to injure them, according to their criminal complaints.

A preliminary hearing in the case is scheduled for August 2.

The prosecution and defense gave conflicting accounts of what happened during the confrontation. Prosecutors and police said in a subpoena and a press release that the women targeted the man, provoked a fight, and accused him of “killing babies” and being “okay with a massacre” by Israeli forces in Palestine. In video messages on social media, the man’s wife said that one of the protesters’ phones hit him in the face during the fight.

Defense attorney Mike French said the two women were demonstrating for an end to U.S. funding of Israel when the man “came up to them,” yelled at them and hit one of their phones. The two women were exercising their First Amendment rights by protesting, French said. The protest group Boise to Palestine said the two were wrongly arrested for exercising their right to free speech.

Boise Police Chief Ron Winegar called the women’s actions “hateful” behavior. Boise police officers receive training in human and civil rights, Haley Williams said, and are taught to recognize and investigate bias-related crimes.

Law enforcement agencies across the country have shut down pro-Palestinian protests and arrested protesters this year, and have taken into account questions about whether certain expressions should be considered anti-Semitic. The confrontation and arrests in Boise further illustrated the tension over violence and war in the Middle East, which escalated after Hamas militants attacked Israel on Oct. 7, with reports putting the total at more than 1,200 dead and hundreds taken hostage.

Israel responded with a massive military force. Palestinian health authorities said Israel’s military campaign had since killed more than 38,000 Gazans, Reuters reported.

Free speech or hate speech?

The question of Idaho’s limitations on First Amendment rights and whether its hate crimes law applies played out earlier this year. In May, attorneys for the city of Coeur d’Alene decided not to charge a suspect accused of racially harassing the University of Utah women’s basketball team while players and people associated with the program were in Coeur d’Alene for NCAA tournament games in Spokane. The decision cited the suspect’s freedom of speech, according to previous reporting in the Statesman.

Dan Berger, founder of the Idaho Israel Alliance, recently noted in a Statesman op-ed that what the two women said was protected speech. However, he said the situation escalated because of the alleged phone attack.

“The larger problem is that the cycle of hate speech, provocation and violence in our city is allowed to fester on state property,” Berger wrote, referring to the pro-Palestine protest downtown at the Capitol Annex. The state sued protesters over the May demonstration, alleging that demonstrators, among other things, camped out, damaged grass and marked and blocked sidewalks in violation of Idaho law.

Aaron Terr, director of public advocacy for the Foundation for Individual Rights and Expression, told the Statesman that it doesn’t matter who is targeted by someone’s hateful views because the government should be neutral in the “marketplace of ideas.” Since the Oct. 7 attacks, many people have faced punishment and censorship amid “inflamed” debate, Terr said.

“We’ve really seen how often people have strong disagreements about the meaning of certain language — for example, whether it’s anti-Semitic or just critical of the Israeli government,” Terr said. “It’s up to people to talk and work out those disagreements among themselves.”