Office of the Vermont Attorney General

Attorney General Donovan’s Remarks at Press Conference in Bennington, January 14, 2019

January 15, 2019

Contact: Charity Clark, Chief of Staff, (802) 828-3171

 

I want to acknowledge that it is not always easy for us to address the issues of bias and hatred, especially where there has already been a great deal of hurt and anger.  I want to acknowledge the strong feelings in the room today. President Obama kept a plaque on his desk that read, “Hard things are hard.”  They are hard.

And yet, we are here; together. In the truest display of Vermont community and decency, we are present. Let us take this opportunity to reaffirm our commitment to our core Vermont values of freedom and unity.  Freedom to live free from fear.  Freedom from hate, bigotry, and oppression.  To achieve these basic human rights, we must be unified.  We may be divided by our birthright, our religion or our skin color yet we are united, not only by the borders of our state, but perhaps more united by our common humanity- humanity that dictates that every person deserves respect, dignity, equal protection under the law. But our history has demonstrated that this is not always true.  Racism is real. Racism has plagued our country since its founding.  Vermont has not been immune.  Our opportunity today is, in words of Abraham Lincoln, It is rather for us to be here dedicated to the great task remaining before us.”  That great task is to address the issue of racism and other forms of bias in our state.  For people in position of power in Vermont, who are white, mostly male, and from a Christian background, to acknowledge, that the lived experience of a person of color, and other backgrounds, faiths and heritages are different.  We must listen to their lived experiences, validate their experiences and learn from their experiences.  As Atticus Finch said, “You never really understand a person until you consider things from his point of view, until you climb into his skin and walk around in it.”    I want to thank you all for being a part of this long walk.

Kiah Morris was a victim of racial harassment.  What we saw in the investigative reports and heard from her family was that Kiah and her family were also victims of crime. Anyone would be afraid if their house was burglarized and their personal property was stolen or damaged. Relatively few Vermonters have had any of these experiences and very few have had any of these experiences in the context of vicious harassment.  We looked into reports of an October 2016 burglary that occurred at their home where personal property was stolen.  There is insufficient evidence to prosecute this crime because there was no physical evidence or a basis for identifying a suspect.  We also looked into reports that in October 2016 a GPS was stolen from Kiah’s car and one of her political signs was damaged. While these are crimes, there is insufficient evidence to prosecute because we cannot identify the person(s) responsible. We relied on the Bennington Police investigation to make our determination. We thank them for their cooperation.

Over a two-year period Kiah Morris was a victim of online harassment.  The harassment was often based on Kiah Morris’s race and gender. The messages were demeaning and racist.    The messages caused Kiah Morris to fear for her safety.  In July of 2018, James Lawton reported that someone hacked into his computer and changed his screen name to “dead, dead.” I decline to prosecute any of these threats for the following reasons:

First, in regard to the “dead, dead” screen name:  Subsequent investigation of the Vermont State Police revealed that Mr. Lawton’s laptop was purchased “used” from another person.  The prior owners’ 10-year-old child’s screenname for playing online video games was “dead dead,” and this screenname, which was associated with the prior owners’ cloud account, continued to be synced with the laptop after Mr. Lawton purchased it.  I want to thank for the Vermont State Police for conducting the forensic examination and witness interviews which established that this was not a threat or a case of computer hacking. I want to note that it was entirely rational for the Morris-Lawton family to view this as a threat in July given the harassment that they were receiving as well as the other events that occurred in October 2016. I don’t think anyone looking at that “dead dead” screen name would have thought anything other than it was a threat.

Second, regarding the online harassment, three potential charges were explored.  “Disturbing the Peace by Using Electronic Communications, Criminal Threatening, and Stalking.”  To demonstrate a violation of any these laws, the state would have to demonstrate that these communications were not protected by the First Amendment. As Justice Brennan recognized in New York Times v. Sullivan, 376 U.S. 254, 270 (1964), the First Amendment guarantees that “debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”  Speech on matters of public concern is protected even if it is offensive, hurtful and demeaning.  See Snyder v. Phelps, 562 U.S. 443, 458 (2011).

There are, however, limited exceptions on free speech that fall outside the protection of the First Amendment.  One exception is the when a communication contains a “true threat.”    This exception was first recognized in Watts v. United States, 394 U.S. 705 (1969), when the U.S. Supreme Court examined whether an individual expressing opposition to the Vietnam war had violated a federal statute making it a crime to threaten to kill or harm the president. The defendant was convicted for stating, at a public event in Washington, D.C., “If ever they make me carry a rifle, the first person I want to get in my sights is L.B.J. [Lyndon Baines Johnson]”. Id at 705-706.

The Supreme Court reversed the conviction on free speech grounds. The Court pointed out that “a threat must be distinguished from … constitutionally protected speech,” such as “political hyperbole,” to ensure that “debate on public issues” is “uninhibited, robust, and wide open,” which “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 707-708 (quotations and citation omitted).

The Court took up the issue once again in Virginia v. Black, 538 U.S. 343 (2003), which involved the interpretation of a state law prohibiting cross-burning. The Court found the statute unconstitutionally overbroad because it presumed any instance of cross-burning might constitute a true threat.  The Court referred to true threats as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual.” The Court explained that “[i]intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id. at 360 The Court also explained that a speaker “need not actually intend to carry out the threat.” Id.

The Vermont Supreme Court has similarly noted that “‘[t]rue threats’ are ‘those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’” State v. Tracy, 2015 VT 111, ¶ 35, 200 Vt. 216 (citing Black, 538 U.S. at 359). Whether speech constitutes a true threat or some other form of speech (e.g., hyperbole or artistic expression) is evaluated objectively, “that is ‘whether an ordinary, reasonable’ person ‘familiar with the context of the communication would interpret as a threat of injury.’” State v. Noll, 2018 VT 106, ¶ 37, __ Vt. __, (October 12, 2018) (citation omitted).

No Vermont court has specifically considered whether communications like those sent to Ms. Morris could be construed as “true threats.” However, cases from other jurisdictions are helpful in understanding the application of the true threats doctrine to communications containing offensive and even threatening language. For example, in State v. Locke, 307 P.3d 771 (Wash. 2013), the court considered emails containing threats that had been made against Christine Gregoire, who at the time was governor of Washington. In one email to the governor, the defendant identified the city in which he resided as “Gregoiremustdie” and said he wanted her to witness a family member being subjected to sexual violence.  Id. at 774. In another email, sent a few minutes later, the defendant said, “You should be burned at the stake like any heretic.” Id. The court concluded that these emails did not contain “true threats.” Id. Regarding the first email, the court explained that “[a]though crude and upsetting, this is more in the nature of hyperbolic political speech, predicting threatening consequences from the State’s policies.” Id. at 777. Regarding the second email, the court noted that “the passive and impersonal phrasing of this sort of statement would at best reach only the margins of a true threat; viewed in isolation, we cannot deem it unprotected speech.” Id.

The Court tells us that where speech involves public officials or matters of public concern, the First Amendment tolerates a great deal of speech that is hateful and offensive.

I find the statements presented to us in this matter, while racist, insulting and degrading, are not subject to prosecution.  The Constitution does not permit us to prosecute racist speech because we find it offensive.  As previously noted, the First Amendment is restrictive on the powers of prosecutors where the statements involve elected officials.

The remedy for speech that we find objectionable and hateful is not for the government to suppress it.  Supreme Court Justice Louis Brandeis told us over 90 years ago that it is “hazardous to discourage thought. . . that repression breeds hate. . . and that the fitting remedy for evil counsels is good ones.”  Whitney v. California, 274 U.S. 357, 375 (1927), (Brandeis, J., concurring).

What that means today is that we meet hateful speech coming from one street corner with more speech from the next street corner.  Not with hate, but with love, compassion and solidarity.  It is to confront hate speech at the ballot box by electing people like Kiah Morris; it’s by lifting up people from all walks of life with polices and initiatives at our select boards and state legislatures that provide opportunity and strengthen our communities.  It’s about demonstrating fidelity to our rule of law.  And understanding that remedy may not just be a criminal prosecution, but perhaps a civil rights violation or perhaps working with our communities to speak out in opposition to hate and intolerance.  Whatever we do, let us heed the advice of Justice Ruth Bader Ginsburg who said, “Fight for the things you care about, but do it in a way that will lead others to join you.”

That’s why today I am announcing the bias incident reporting system with the support for our police, prosecutors, both the State’s Attorneys and the U.S. attorneys. This will be another tool in combatting hate.

I’m also announcing three planned community forums on race that will occur in the coming weeks. These forums are important because your voices are important. We need you in order to do our best work and we need to talk to each other, even when it’s uncomfortable.  Supreme Court Justice Thurgood Marshall told us:

“We cannot play ostrich.  Democracy just cannot flourish amid fear.  Liberty cannot bloom amid hate.  Justice cannot take root amid rage.  America must get to work.  In the chill climate in which we live, we must go against the prevailing wind.  We must dissent from indifference.  We must dissent from apathy.  We must dissent from the fear, the hatred, and the mistrust.”

I know Kiah Morris is not the first, nor will she be the last, person to experience racism.  Perhaps because of her status as an elected official, her experience received the most attention.  I thank Kiah for her strength, wisdom and integrity during this difficult time.  But I know many people of color, who do not have the profile of an elected official, suffer from all different forms of racism in this state. We acknowledge this.

As we seek address to this issue and attempt to heal as a state, let us remember the words of Martin Luther King:

“True peace is not merely the absence of tension; it is the presence of justice.”

Let us seek justice.

 

Morris Investigation and Legal Findings

PD Protocol Bias Incident Reporting System

SAO or PD Memo Bias Incident Reporting System

SAO Protocol Bias Incident Reporting System

Last modified: January 16, 2019