Looking toward the memorials for the three people killed in a racist shooting at a new Town Dollar General last year, local City Council members introduced legislation with the goal of deterring hateful actions.
Five months later, that bill has stalled as the City Council bats First Amendment and efficacy questions, and the number of committee votes against the bill will likely carry to a rejection in the City Council meeting next week.
“Today, we had a hateful act, and over the past month, we had a hateful act,” Peluso said after the meeting, referencing vandalism on a Town Center Starbucks Wednesday. “And a year ago, almost to the day, a hateful act took the lives of three individuals. There’s actions being done in the city that could be either prevented or at the very least addressed in such a way where we make it known that as a city and as a community, that we will not stand by while people are doing things that they think they are allowed to do.”
Background: Hate crime fines, jail time could triple under new City Council bill
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Banning light projections: Antisemitic messages beamed on buildings spur proposed Jacksonville law with jail time
The bill would enhance penalties for already established infractions, including littering, noise pollution and light projections, if their primary purpose was “expressing animosity, hostility or malice” toward individuals based on their race, religion, sex, sexual orientation, gender identity, marital status, national origin, age or disability.
Code enforcement and Jacksonville police officers would not be responsible for deciding whether the action warranted an enhanced penalty, officials said. A county judge would make the assessment based on evidence collected.
Community activists have applauded the bill for taking penalty enhancements usually reserved for violent crime into a new sphere, especially by adding to the protected classes not currently covered by state ordinances. Some have said the bill does not go far enough.
Opponents question if the bill will impact their ability to preach parts of the Bible that groups consider offensive or hurtful.
One City Council member, Terrance Freeman, called it “cheap political pandering” and “insulting” in a press release in May. On Wednesday, Freeman, along with other members of council, found the bill duplicative of existing state law and ineffective at deterring hate crimes.
The bill has gone through rounds of changes, including an increase to the enhanced penalties of up to $10,000 or one year in jail. Council members also voted to change language in the bill to provide more clarity that the intent is not to stop offensive language, but threatening language.
“In America, we have the right to offend people,” Peluso said. “We do. Freedom of speech is sacrosanct in this country.”
The changes do not appear to be enough for a majority vote on the City Council after a denial vote in the Land Use and Zoning, denial in the Rules committee and a tie vote in Neighborhoods.
First Amendment allows hate speech, not threats of imminent violence
Penalty enhancements are generally allowed by courts, Courtney Barclay, associate dean at the Jacksonville University law school with expertise in First Amendment law, told the Times-Union.
Most hate speech is protected by the First Amendment, but threats of imminent violence are not.
Barclay said enhancements are primarily associated with more personalized violent crimes, but there are exceptions. She gave the example of a case in Virginia where a person trespassed onto someone else’s property and burned a cross as a threat to that individual.
Burning a cross is a protected form of speech, but trespassing on someone else’s property is not.
“So there are enhanced penalties for things like that where just a trespass action doesn’t seem like enough to punish that kind of trespass,” Barclay said.
Jacksonville has seen an uptick in recent years in hate related incidents, including antisemitic flyers left in neighborhoods and swastikas projected on buildings downtown. After the New Town shooting last year, Peluso wanted to make some type of statement that the city will not accept hateful crimes of any nature.
“We need to do everything in our power, everything in our power, to make sure that we as a body are saying enough is enough,” Peluso said.
The ideas driving penalty enhancements or prohibition of speech normally come from good intentions, Barclay said, but they have to be very defined in order to pass constitutional muster.
Changing the bill’s language to specify that the actions have to be in pursuit of “endangering” another person or their property is more consistent with free speech protections, she said. The focus should not be on expression of ideas, but on the motive.
“It’s a frustrating distinction that we make, but we are looking to see if there’s imminent action and if there’s a credible threat,” Barclay said.
Council members cannot ‘stop the hate in someone’s heart’
While debate over the bill began months ago primarily over freedom of speech concerns, talk in committee following the amendments placed turned to if the bill could be effective or if there were other options to accomplish the same goal.
State and federal law include some of the enhanced penalties for the actions covered by the bill, but not all of them, city attorney Jason Teal said.
Freeman, along with council members Nick Howland and Chris Miller, rejected the idea that enhancing the penalties associated with the affected crimes locally would deter them.
“I agree with Mr. Freeman, hate in the heart is cured by family and friendship and church and community and education,” Howland said. “It’s not cured by enhanced civic penalties.”
Miller suggested the council offer some form of resolution condemning recent hate crimes or finding a way to get to the root of the issue.
Peluso and council members supporting the bill said that would not provide any comfort to the individuals being threatened.
“A resolution won’t do nothing, but enforcement does,” Matt Carlucci said. “It triples the enforcement for a crime that would have never happened but for the hatred that somebody has. Sometimes that needs to be pricked with a little bit of enforcement.”
Whether the bill will come before the full council on Tuesday will depend on council President Randy White. Because the vote reached a tie in one committee, he has to decide whether to pull it from that committee and have it taken up at the end of the full meeting or defer it for another cycle.
This article originally appeared on Florida Times-Union: Jacksonville City Council undetermined on anti hate crime bill
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