Proposed hate speech law prompts debate in Palo Alto

Seeking to demonstrate their commitment to opposing racism, Palo Alto leaders are preparing to consider on Monday a legally dubious proposal for an ordinance that would make hate speech a local crime. 

The law, which has been championed for months by council member Greg Tanaka, would target individuals who engage in hate speech based on factors such as race, ethnicity and gender identity. At recent meetings, Tanaka pointed to recent incidents targeting Asian residents and business owners, most notably the racial-hate tirade that was directed at the owner of Fuki Sushi last year. 

The topic of hate crimes and hate incidents has also been the focus of recent meetings by the Human Relations Commission. In March, the commission recommended that the city invite a recently created unit of the FBI's San Francisco division, which focuses on hate crimes, to educate the community and the Police Department about the topic. Commissioners also recommended that the council increase the city's marketing efforts to raise public awareness on how to report hate crimes and hate incidents. 

Tanaka wants the city to go further. He suggested in September that hate incidents are "woefully underreported," particularly against members of the Asian community. Citing his conversations with participants at last year's "Stop Asian Hate" rallies, he suggested creating an ordinance that would give the city the power to issue fines against perpetrators of these acts. He noted that in the Fuki Sushi incident, the owner ended up feeling helpless after the Santa Clara County District Attorney's Office did not press charges against the man who yelled at her and called her "un-American" and told her, "Go back your country," during a dispute over a bill. 

"Even if the action is small, like a $100 fine something where it says this kind of action, this kind of behavior is not right and not acceptable in our city," Tanaka said at the Sept. 14 meeting of the council's Policy and Services Committee. 

In most recent cases, hate crimes in Palo Alto have involved vandalism, according to a new report from the Police Department. The report lists nine hate crimes that had occurred in Palo Alto in 2021, seven of which involved vandalism of city property. The other two were an assault with a deadly weapon against a Middle Eastern individual and battery causing serious bodily injury against an individual based on their sexual orientation. 

So far this year, the department has received reports of three hate crimes, all of which involved vandalism on private property. Two were directed at Black individuals while the third was based on nationality rather than race, according to the police data. 

But while city leaders routinely acknowledge that hate incidents are a major problem, not everyone agrees that a local law is the right way to go. A new report from City Manager Ed Shikada notes that hate-based criminal conduct is already punished by existing state law and suggests that the city focus its efforts on education and outreach rather than draft a new ordinance. 

"A local ordinance would have to comply with the same Constitutional limitations and would not likely be a useful tool for police or prosecutors," the report states. "Increasing awareness and promoting reporting, on the other hand, could make valuable contributions to the effort to foster healthy and safe communities where all residents can experience a strong sense of belonging without fear." 

Among the biggest challenges for the city in adopting an ordinance of the sort proposed by Tanaka is the need to ensure that it does not run afoul of free speech rights, which are protected by the U.S. Constitution. Aram James, a former public attorney who frequently advocates for social justice and criticizes police policies, said this week that he strongly opposes Tanaka's proposed ordinance. 

"The idea that we're going to potentially make stand-alone hate speech a misdemeanor ordinance flies in the face of the Constitution," James told the council on May 2. "The First Amendment was designed not to protect popular speech; popular speech doesn't need any protection." 

The Human Relations Commission has also focused on education and outreach in addressing recent hate crimes, which include a string of threats that were directed last year against First United Methodist Church's pastor, who is Black. Palo Alto officials also spoke out against hate in February, after flyers with anti-Semitic messages were dropped off at various locations in Palo Alto. 

"When you look at hate that was given to a Black clergy woman and you look at Anti-Semitic incidents it's very scary, particularly for these faith communities," the Rev. Kaloma Smith, who chairs the commission, said at the commission's March 10 meeting.

The Palo Alto Police Department already has policies in place to address both hate crimes and hate incidents. The city defines "hate crimes" as "criminal acts committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: (a) disability (b) gender (c) nationality (d) race or ethnicity (e) religion (f) sexual orientation (g) association with a person or group with one or more of these actual or perceived characteristics." The department has detailed guidelines in place for investigating these incidents and supporting victims. 

Hate incidents, by contrast, are actions that are motivated by hate or bias but are protected by the First Amendment. Examples of hate incidents include name-calling, distribution of hate material in public places, display of hate material on one's property, and insults and epithets, according to the Police Department's policy manual. Given these protections, Shikada concluded in the report that a municipal misdemeanor ordinance "could not go further than state law currently does to deter or punish hate incidents." 

The recommendation notwithstanding, the council agreed on May 2 to schedule a hearing for May 9 on a broad range of efforts pertaining to hate crimes and incidents, including a discussion of the new misdemeanor ordinance. The council will also consider a recommendation from its Policy and Services Committee that all council members receive training on microaggression by next month. According to staff, the city will hold three separate training sessions that would be conducted by the organization CircleUp Education. 

Council member Greer Stone, who chairs the Policy and Services Committee and who works as a teacher at Carlmont High School, strongly recommended in February that the council receive the training, which is designed to help participants identify instances of subtle and, at times, unintentional discrimination.

"No matter how much you do this work, it's always incredible what you learn," Stone said at the Feb. 8 meeting of the committee. "And sometimes, you're not happy to learn that you have this microaggression, so to be able to identify it and try to address it is really critical."