Police: Protected speech is offensive but can’t be investigated as hate crime

BRATTLEBORO — First, let me state that we, as members of the Brattleboro Police Department, both personally and professionally find the offensive and threatening anti-Semitic statements that were written to be heinous and unacceptable. They espouse a type of hatred and intolerance that has no place in our community.

The Brattleboro Police are investigating this incident in order to make contact with the perpetrator so that we can conduct a threat assessment and determine the risk of violence posed by this person.

Arlene Distler and Steve Minkin are correct that police are not investigating this incident as a criminal offense. It is inaccurate, however, to assert that the police made this decision.

In State v. Schenk, the Vermont Supreme Court explicitly stated that speech (including writings) must meet a certain threshold in order to be considered a threat. In that case, a person distributed flyers from the Ku Klux Klan, a hate group factually known to have murdered minorities, to African Americans in Burlington. The suspect was charged with hate-motivated disorderly conduct.

The Supreme Court, in dismissing that case, stated that speech or conduct must represent a “physical and imminent” threat of harm in order to be illegal.

In light of that ruling, our department consulted with the Windham County State's Attorney, who advised that standing alone, the threatening writing in this case could not be prosecuted as a criminal offense.

The Brattleboro community should know that the Brattleboro Police Department is equally offended by the inherently violent nature of the words written in this case.

That said, we work in a nation of laws and, as police officers, we respect the system and the courts that interpret those laws and our Constitution.

We will continue to do our best to reduce the spread of hateful thoughts and actions in our community while respecting decisions of the court.

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