No hate crime charges for slurs at Utah women

COEUR D'ALENE, Idaho -- A northern Idaho prosecutor won't bring hate crime charges against an 18-year-old accused of shouting a racist slur at members of the Utah women's basketball team during the NCAA tournament.

The deputy attorney for the city of Coeur d'Alene made the announcement Monday, writing in a charging decision document that although the use of the slur was "detestable" and "incredibly offensive," there wasn't evidence suggesting that the man was threatening physical harm to the women or to their property. That means the conduct is protected by the First Amendment and can't be charged under Idaho's malicious harassment law, Ryan Hunter wrote.

The members of the University of Utah basketball team were staying at a Coeur d'Alene hotel in March as they competed at the NCAA tournament in nearby Spokane, Washington. Team members were walking from a hotel to a restaurant when they said a truck drove up and the driver yelled a racist slur at the group. After the team left the restaurant, the same driver returned and was "reinforced by others." They were revving their engines and yelling again at the players, said Tony Stewart, an official with the Kootenai County Task Force on Human Relations, during a news conference shortly after the event.

The encounters were so disturbing that they left the group concerned about its safety, Utah coach Lynne Roberts said a few days later.

Far-right extremists have maintained a presence in the region for years. In 2018, at least nine hate groups operated in the region of Spokane and northern Idaho, according to the Southern Poverty Law Center.

"We had several instances of some kind of racial hate crimes toward our program and [it was] incredibly upsetting for all of us," Roberts said. "In our world, in athletics and in university settings, it's shocking. There's so much diversity on a college campus and so you're just not exposed to that very often."

University of Utah officials declined to comment about the prosecutor's decision.

In the document detailing the decision, Hunter said police interviewed nearly two dozen witnesses and pored over hours of surveillance video. Several credible witnesses described a racist slur being hurled at the group as it walked to dinner, but descriptions of the vehicle and the person who shouted the slur varied, and police weren't able to hear any audio of the yelling on the surveillance tapes.

There also wasn't any evidence to connect the encounter before the team arrived at the restaurant with what happened as it left, Hunter wrote. Still, police were able to identify the occupants of a silver passenger vehicle involved in the second encounter, and one of them -- an 18-year-old high school student -- reportedly confessed to shouting a slur and an obscene statement at the group, Hunter said.

Prosecutors considered whether to bring three possible charges against the man -- malicious harassment, disorderly conduct or disturbing the peace -- but decided they didn't have enough evidence to support any of the three charges.

That's because Idaho's hate crime law makes racial harassment a crime only if it is done with the intent to either threaten or cause physical harm to a person or to their property. The man who shouted the slur told police he did it because he thought it would be funny, Hunter wrote.

"Setting aside the rank absurdity of that claim and the abjectly disgusting thought process required to believe it would be humorous to say something that abhorrent," it undermines the premise that the man had the specific intent to intimidate and harass, Hunter wrote.

The hateful speech also didn't meet the requirements of Idaho's disorderly conduct and disturbing the peace laws, which are mainly about when and where noise or unruly behavior occurs. The slurs were shouted on a busy thoroughfare during the early evening hours, and so the noise level wasn't unusual for that time and place.

Hunter wrote that his office shares in the outrage sparked by the man's "abhorrently racist and misogynistic statement, and we join in unequivocally condemning that statement and the use of a racial slur in this case, or in any circumstance. However that cannot, under current law, form the basis for criminal prosecution in this case."

The First Amendment protects even hateful or offensive speech, said Aaron Terr, the public advocacy director of the Foundation for Individual Rights and Expression, which advocates for freedom of speech and thought.

"While that means we sometimes have to hear speech we loathe, it's an important principle because the only alternative is for the government to decide when speech is too offensive. That's a subjective judgment, and it would open the door to the government arbitrarily suppressing views it doesn't like," Terr said.

There are a few exceptions to the First Amendment, Terr said, but they are narrow and well-defined.

"For example the First Amendment doesn't protect true threats, which are statements expressing a serious intent to cause physical harm to an individual or to place them in fear of physical harm," Terr said. "Incitement is also unprotected, but to qualify as incitement, the speech must be intended to and likely to cause immediate unlawful action."