Hate Crime vs Hate Speech – What is Illegal in Florida?

October 19, 2022 Don Pumphrey, Jr. Criminal Defense Social Share

Acting out in a hateful way towards another person or group of people is not only considered wrong, but it can also go against the law. In Florida, if a crime has been committed in which the defendant clearly acted out against a victim based on specific characteristics, their charges can be reclassified to a more severe charge.

However, where is the line drawn when it comes to hate speech? In a country that values free speech, one may wonder what is legal and what can get them in trouble with the law. We will define hate crimes and explain Florida’s Statutes on hate crimes, as well as examples of hate speech and its dangers.

Hate Crimes in Florida  

A hate crime is considered an act attempted or committed by an individual against another person or group of people that shows an expression of hatred toward the victim(s) based on their characteristics. The defendant has selected the victim intentionally based on one of the following characteristics:

• Race
• Color
• Religion
• Ethnicity
• Ancestry
• National Origin
• Sexual Orientation
• Homeless Status
• Age
• Mental/Physical Disabilities

The Florida law that covers hate crimes is Statute section 775.085 titled “Evidencing prejudice while committing offense; reclassification.” Under the law, it reclassifies any felony or misdemeanor as a more severe charge if the commission of the crime has evidence of prejudice based on race, color, ethnicity, religion, sexual orientation, national origin, homeless status, mental or physical disability, or advanced age against the victim. The reclassification would go as following:

• A second-degree misdemeanor would be reclassified as a first-degree misdemeanor
• A first-degree misdemeanor would be reclassified as a third-degree felony
• A third-degree felony would be reclassified as a second-degree felony
• A second-degree felony would be reclassified as a first-degree felony
• A first-degree felony would be reclassified as a life felony

The Statute further provides that it is an essential element of the law that the defendant must have perceived, known, or has reasonable grounds to know or perceive that the victim fell within one of the classes listed under the statute.

There is also the Hate Crimes Reporting Act, which is codified under Statute section 877.19. Florida law states that, “The governor, through the Florida Department of Law Enforcement, shall collect and disseminate data on incidents of criminal acts that evidence prejudice based on race, religion, ethnicity, color, ancestry, sexual orientation, or national origin.” All of the State’s law enforcement agencies are required under the law to provide monthly reports to the FDLE on any offenses that are considered hate crimes.

Failed Amendment to Hate Crime Law

In 2021, Florida Legislature aimed to amend the current statutes for hate crimes. SB 308 and its matching house bill HB 111 were aimed to expand the bill’s protection and expand the grounds of reclassification to offenses involving prejudice based on physical disability, gender, and gender identity.

In the proposed bill, “gender identity” is defined as “a person’s gender-related identity, appearance, or behavior, regardless of whether such gender-related identity, appearance, or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”

The bill also aimed to amend the Hate Crimes Reporting Act, which makes it a requirement for Florida’s Governor to disseminate incidents’ data of criminal acts which have prejudice based on race, religion, ethnicity, color, ancestry, sexual orientation, gender, gender identity, disability, or national origin. The amended bill would add “gender, gender identity, and disability” to the law.

In March 2022, both SB 308 and HB 111 died in criminal justice, meaning that they were defeated in that committee and neither one was passed into law.

Underreporting Issue

In 2020, the FBI released its annual report which showed an 8% increase in reported hate crimes. There were 8,263 incidents reported from around the U.S., which is the highest amount since 2002. This increase comes despite a drop in law enforcement officers providing data on crime.

In Florida specifically, there has been a decrease in reported hate crimes from 2017-2020. The number of hate crimes went from 145 in 2017 down to 109 in 2020, but experts are saying it’s due to the ongoing issue of underreporting.

Without SB 308 and HB 111 getting passed, there is no amendment to the current State’s hate crime statute. That means physical disability, gender, gender identity, as well as “association with” or “mixed motive” hate crimes are not protected under the law. This is most likely playing a part in the State’s underreporting.

Hate Speech – Need for New Laws?

Under the First Amendment of the U.S. Constitution, American citizens have the right to freedom of speech. This can get complicated when differentiating hate speech from a hate crime. As of now, Florida’s hate crime laws do not punish anyone for hateful thoughts or speech.

Hate crime laws require an underlying criminal act and a biased motive to pursue a criminal charge. However, some may wonder where exactly the line is drawn. With the use of social media and the internet, hateful speech is becoming more common.

In the summer of 2022, Andrew Tate, 35, gained internet fame through videos posted on TikTok. Tate became somewhat of an icon and “life coach” for men across the globe, discussing his thoughts on fast cars, guns, and women. However, his fame turned controversial the more he voiced his opinion about women—specifically talking about violent acts against women.

Tate’s views have been criticized for being extremely misogynistic, and borderline abusive. In one video, he said he believed women who were the victims of rape must, “bear responsibility” for the attacks against them. Another video talks about hitting and choking women to stop them from going out.

“It’s bang out the machete, boom in her face and grip her by the neck. Shut up bitch,” Tate said would be his response to a woman who accuses him of cheating. While some argue that Tate is using his freedom of speech, others worry about the influence Tate has had globally. The British-American ex-boxer gained a massive following online, with some videos getting up to 11.6 billion views.

Critics raised their concerns regarding potential radicalism and online misogyny. Hannah Ruschen, a policy officer for the National Society for the Prevention of Cruelty to Children (NSPCC), commented, “viewing such material at a young age can shape a child’s experiences and attitudes, resulting in further harm to women and girls in and out of school and online.”

While the First Amendment protects Tate from any criminal charges for his posts, the director of End Violence Against Women coalition, Andrea Simon, argued that Tate was in direct violation of TikTok’s terms. The app’s guidelines state that it bans content that “praises, promotes, glorifies, or supports any hateful ideology.”

As of August 2022, a spokesperson for Meta—the owner of Instagram and Facebook—reported that Tate was permanently banned from using the app. Tate has been banned from YouTube and Twitter as well. After an investigation by TikTok’s team, Tate’s account had also been permanently banned. TikTok announced it would remove any of the videos of Tate, including videos that were re-uploaded.

“Misogyny is a hateful ideology that is not tolerated on TikTok,” the spokesperson said. “Our investigation into this content is ongoing, as we continue to remove violative accounts and videos, and pursue measures to strengthen our enforcement, including our detection models, against this type of content.”

Although the case did not happen in Florida, it does highlight the potential need for new legislature addressing hate speech. Florida Statute section 836.10 only covers written or electronic threats—which specifically states that is unlawful for any person to send, post, transmit, or procure and sending of a written or electronic record that makes a threat to:

• Kill or do bodily harm to another person; or
• Conduct a mass shooting or an act of terrorism.

Violating the above statute can result in a second-degree felony in Florida. A second-degree felony has a penalty of up to $10,000 and up to 15 years in prison. That means hateful speech must have a clearly stated threat to harm another person in order to be criminally charged. However, even if you never intended to cause the victim harm, once a clear threat is made the State can convict you based on the threat.

You can read more on written threat crimes in Florida by going to our blog here.

Finding a Defense Attorney in Tallahassee, Florida

Getting accused of a crime can be extremely stressful, especially if you feel like you are facing it on your own. If you or a loved one have been charged with a crime, the first move should be reaching out to a skilled Tallahassee criminal defense attorney. A conviction can lead to hefty fines and imprisonment, whereas a skilled defense attorney will strive to work towards earning your freedom. Pumphrey Law Firm vows to stand in your corner and fight for your future. Call us today for a free consultation at (850) 681-7777 or leave us an online message on our website.

Written by Karissa Key

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