Threatening texts targeting minorities after election were vile − but they might not be illegal

The FBI and police in several states are investigating a wave of hateful texts and emails apparently targeting minorities across the United States following the presidential election. The anonymously sent messages, which may have numbered up to 500,000, varied in their specific language but had similarly menacing themes. Some referred to recipients as “selected for slavery” and ordered them to a plantation to pick cotton. Others said they’d be picked up for deportation or sent to a reeducation camp. The threats lacked details on timing, location and the like. Some addressed recipients by name, while others contained no greeting or personal identifier. They seemed to be targeting Black people, immigrants and LGBTQ people but may have been dispatched indiscriminately to a wide swath of Americans. Information technology experts have expressed confidence that the perpetrators will be identified. Yet it’s not clear to me as a professor of constitutional and criminal law that they can be prosecuted. The First Amendment generally protects free speech, even when it’s heinous. Several Supreme Court decisions have established that speech may not be punished just because it is offensive or hateful. “If there is a bedrock principle underlying the First Amendment, it is that the...