Editor’s note: This commentary is by Patrick Low, a senior political science and Asian studies major at the University of Vermont. He is from Washington, D.C.
[W]esley Richter is a student at the University of Vermont. He is charged with disorderly conduct based on a third party overhearing part of a phone conversation in which Mr. Richter “allegedly used explicitly racist and threatening language directed toward African Americans and general diversity initiatives on campus” (email to the UVM community from UVM Police Services Chief Lianne Tuomey, Oct. 5, 2017). UVM police investigated the matter then informed all students of the incident and the charge Mr. Richter faced. In my view, this charge is a grave violation of Mr. Richter’s rights under the First Amendment to the U.S. Constitution and Chapter 1, Article 13, of the Vermont Constitution, and should be dismissed. Furthermore, his censorship and “doxing” by UVM police sets a chilling precedent for free speech on campus.
First, pursuant to the First Amendment and State v. Tracy, “As a general matter, government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Furthermore, “The Constitution protects expression without regard to the truth, popularity, or social utility of the ideas and beliefs which are offered.” It does not matter if whatever Mr. Richter said over the phone was untrue, unpopular or valueless; statements of that nature are equally protected.
Second, State v. Tracy states: “New categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” So-called “hate speech,” while perhaps not morally defensible, is not a crime, nor could the U.S. Congress or the Vermont Legislature criminalize it under existing law. The question that matters is whether Mr. Richter’s overheard phone conversation constituted “true threats” or “fighting words,” two existing areas of unprotected speech. “‘True 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.” “‘Fighting words’ are words that are likely to so provoke the average listener that an affray will ensue.”
Third, pursuant to Chapter 1, Article 13 of the Vermont Constitution and State v. Albarelli, the “Disorderly conduct statute, prohibiting one from engaging ‘in fighting or in violent, tumultuous or threatening behavior,’ proscribes conduct, not speech, and therefore does not penalize speech.” To repeat, according to the Vermont Supreme Court, the disorderly conduct statute does not penalize speech.
Fourth, “In determining whether a defendant’s behavior, including speech, is sufficiently threatening to support finding that he engaged in disorderly conduct, the fact finder may not consider the subjective effect based on reaction of particular persons, but instead, must evaluate effect under an objective standard based on how a reasonable person would view the defendant’s behavior” (State v. Albarelli). It does not matter how distressed the third party might have been when he/she overheard Mr. Richter’s phone conversation; neither does it matter how distressed African-American students might be had they learned of Mr. Richter’s words. The only metric that matters is how a reasonable person of no particular color would view Mr. Richter’s remarks.
Fifth, to be charged with a crime in the state of Vermont requires a finding by a Superior Court judge of probable cause, which means a fair probability that a crime was committed and that the defendant committed it. It is my understanding that Mr. Richter has not yet been arraigned, as he invoked the 24-hour rule and Superior Court Judge Pearson gave his defense team two weeks to submit a legal memorandum challenging probable cause. Therefore, currently, there has been no judicial finding of probable cause.
Sixth, “In determining whether the State presented sufficient evidence to meet the standard of threatening behavior, as required to support conviction for disorderly conduct, the Supreme Court reviews the evidence presented by the State viewing it in the light most favorable to the prosecution and excluding any modifying evidence, and determines whether that evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt” (State v. Albarelli). Only if a jury of 12 of his peers determines the State has met its burden of proof on all elements of the offense beyond a reasonable doubt can Mr. Richter be convicted of the crime of disorderly conduct.
In sum, to determine whether Mr. Richter is guilty of disorderly conduct, a jury of Vermonters must decide whether Mr. Richter’s words fall within the abusive-language prong of the disorderly conduct statute. To do this, the jury must first decide whether Mr. Richter’s words constitute “true threats” and/or “fighting words,” or whether they are protected speech.
Although the facts are not fully known, it appears that Mr. Richter’s comments were not “true threats” or “fighting words.” Consider these facts: “UVM Police Services has conducted a thorough investigation and threat assessment. They found no information of an imminent threat to public safety” (police chief email, Oct. 5). As such, Mr. Richter’s words cannot have fallen under the category of “true threats.” Furthermore, the speech at issue prompted only a complaint to UVM police; it did not “so provoke the average listener that an affray [ensued].” (State v. Tracy). As no violence stemmed from Mr. Richter’s words, it is unlikely they would fall under the category of “fighting words.”
Finally, the standard of evidence necessary to find Mr. Richter guilty of disorderly conduct is proof “beyond a reasonable doubt” (State v. Albarelli). Since the disorderly conduct charge appears to be based purely on hearsay, specifically a third party overhearing at most one half of a phone conversation, the requisite high standard of evidence is unlikely to be met. As such, the criminal charge is likely to be dismissed.
Unfortunately, even if his criminal charge is dismissed, Mr. Richter will always be known as espousing hateful ideas. I understand that UVM has an obligation to protect its students from harm; however, releasing the name of a student who arguably espoused unpopular speech put the UVM administration in a position of power and potential censorship that is antithetical to free speech and the university’s mission of diffusing ideas, education and knowledge.
