Here are the charges Idaho prosecutor should have brought in racist attack | Opinion

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Prosecutors are not going to charge an 18-year-old Post Falls High School student who hurled racial epithets at members of the University of Utah women’s basketball team who were staying in Coeur d’Alene during the NCAA tournament in March.

Prosecutors said the suspect’s yelling of the N-word and threatening anal sex, however deplorable, falls under the First Amendment’s protection of free speech, according to The Spokesman-Review.

But is that true?

“The free speech provision of the First Amendment of the U.S. Constitution has long been interpreted to have critical parameters,” McKay Cunningham, director of on-campus experiential learning at College of Idaho and an expert on constitutional law, wrote to me in an email about the case. “Free speech is not absolute.”

Cunningham cites the example that most people are familiar with: that you can’t yell fire in a crowded theater, causing a stampede and subsequent injuries.

In this case, Cunningham thinks there could be a case under Idaho’s malicious harassment statute, 18-7902, which states: “It shall be unlawful for any person, maliciously and with the specific intent to intimidate or harass another person because of that person’s race, color, religion, ancestry, or national origin, to (a) cause physical injury to another person.”

If the allegations include credible threats of rape based on an identified statutory status, in this case “race,” as indicated by the N-word, then a criminal investigation is warranted, according to Cunningham.

But Jim Jones, former Idaho attorney general and Idaho Supreme Court chief justice, said he thinks that might not hold up.

The problem Jones sees with the malicious harassment statute is that it also includes the following language: “Threaten, by word or act, to do the acts prohibited if there is reasonable cause to believe that any of the acts described in subsections (a) and (b) of this section will occur.”

In other words, it has to be clear that the threat of rape was real, that it’s reasonable to believe the suspect was going to try to commit rape.

If the statute did not have that language, Jones said, he would agree that the city attorney could have had a reasonable basis for making a malicious harassment charge. But it does not appear from what has been reported that the suspect was going to cause physical injury or property damage.

Chief Deputy City Attorney Ryan Hunter wrote that he considered charging the suspect with disturbing the peace, disorderly conduct or malicious harassment, but ultimately found “insufficient evidence” that the man “acted with a specific intent to intimidate or harass any specific person.”

“(O)n the contrary, the sum of the evidence supports that (his) intent was to be funny,” Hunter wrote, according to the Salt Lake Tribune.

Jones said he didn’t think the prosecutor should have accepted at face value the perpetrator’s self-serving statement that he was just trying to be funny.

“Nothing he did was humorous,” Jones said. “It was not received as such by the victims. Vicious humor does not excuse unlawful action. A jury should have been allowed to determine the suspect’s intention.”

Disturbing the peace

Jones said the conduct could have been prosecuted as a violation of the state’s disturbing the peace statute or the city’s disorderly conduct ordinance.

Idaho’s disturbing the peace statute, 18-6409, states, “Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood, family or person, by loud or unusual noise, or by tumultuous or offensive conduct, or by threatening, traducing, quarreling, challenging to fight or fighting, or fires any gun or pistol, or uses any vulgar, profane or indecent language within the presence or hearing of children, in a loud and boisterous manner, is guilty of a misdemeanor.”

Malicious? Check. Willful? Check. Disturbs the peace or quiet of a person by loud or unusual noise? Check. Or by tumultuous or offensive conduct? Check.

The student’s conduct also would easily be considered illegal under the city’s disorderly conduct ordinance:

“(A) person is guilty of disorderly conduct when that person willfully engages in… offensive conduct…or makes noise that is unreasonable, considering the nature of the actor’s conduct, location, time of day or night, and other factors that would govern the conduct of a reasonably prudent person under the circumstances…or engages in…noisy or riotous behavior that would be frightening or offensive to a reasonable person… in the vicinity.’”

Check, check, check.

Free speech, as Cunningham pointed out, is not absolute, especially when it comes into conflict with the rights of others.

The actions of the student and the others were infringing on the rights of the basketball players and staff who were simply trying to walk to dinner and enjoy the night. The fact that the city prosecutor used his discretion and decided to err on the side of protecting the ignorant, racist student is perhaps telling.

The fact that the incident happened at all, criminal or not, is even more telling — that racism is sadly very much alive and well in Idaho.