By Josh Gerstein
Attorney General Loretta Lynch Monday appeared to recalibrate remarks she made last week that suggested the Justice Department could investigate speech deemed hostile towards Muslims.
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"Of course, we prosecute deeds and not words," she said at a press conference Monday to announce an unrelated civil rights investigation into the Chicago Police Department.
Some conservatives criticized Lynch for her comments to a Muslim civil rights group, where she lamented "the ability of people to issue hateful speech of all types from the anonymity of a screen."
Speaking to a Muslim Advocates dinner in Arlington, Va., Lynch affirmed that "this is a country that is based upon free speech." However, she went on to suggest that the Justice Department would "take action" when such speech "edges towards violence, when we see the potential to lift...that mantle of anti-Muslim rhetoric."
First Amendment precedents generally protect speech, even hateful speech, from punishment unless the comments are intended to incite direct action against specific individuals or in a specific place.
Lynch's comments Monday seemed to better capture that balance by focusing on those who might act out, rather than those who may be fomenting trouble.
"We always have a concern when we see the rhetoric rising against any particular group in America, that it might inspire others to violent action — and that violent action is what we would have to deal with," Lynch told journalists at Justice Department headquarters. She also urged Americans "not to give into fear" in the wake of the apparent terrorist attack in California. "So, [what] we're focused on, obviously, is protecting all of the people under the ambit of the Department of Justice."
In an interview Sunday about the San Bernardino shootings that killed 14 people, Lynch said she was "not sure" which ideology the San Bernardino shooters were driven by. However, hours later in an Oval Office address, President Barack Obama discussed the shootings and the need for the U.S. to "destroy" the Islamic State in Iraq and the Levant group.
Asked by POLITICO why she was reluctant to publicly say even that the shootings were inspired by ISIL, Lynch stressed the need for investigators to keep an open mind to all possibilities.
"At this point…we’re not prepared to limit any particular ideology to what may have inspired these individuals," the attorney general said. "There are a number of groups that are on social media, looking to encourage people to commit acts of violence within the homeland, so at this point we simply do not want to rule anything out."
Nevertheless, the evidence that the husband-and-wife team were fans of ISIL appears to be growing. The female shooter, Tashfeen Malik, reportedly praised the group's leader Abu Baker Al-Baghdadi in a Facebook post at around the same time as the attack last Wednesday. And the man, Syed Rizwan Farook, shared the ideology of Al-Baghdadi, according to an interview Farook's father gave to Italian newspaper La Stampa.
Lynch also acknowledged Monday that in an effort to calm the nerves of worried Americans, she and her colleagues have been departing from the Justice Department's usual practice of being tight-lipped about the findings of investigations where no criminal charges have been leveled. Lynch and other officials have been making near-daily media appearances since the attack last Wednesday--appearances Obama appeared to encourage last week when he held an Oval Office meeting with Lynch, FBI Director James Comey and others to address the attack.
However, Justice Department policy calls on prosecutors and investigators not to comment publicly on the evidence in an investigation or on techniques investigators are using. An exception to the policy does acknowledge that comments "may need to be made" under "unusual circumstances" where matters "have already received substantial publicity, or about which the community needs to be reassured that the appropriate law enforcement agency is investigating the incident," among other factors.
Lynch said Monday this was that kind of circumstance, but signaled that the department is trying to balance the investigation's needs with the public's desire for updates.
"At this point, we are discussing the San Bernardino investigation because we want the public to be aware of how these investigations are conducted, their complexity, and the fact that they are in fact a marathon and not a sprint. So, we’re trying to keep people informed, while also maintain the integrity of investigative techniques and the like, so you do have us talking about this investigation more than we can talk about others," she said.
Another reason why officials may feel more free to talk about the California terror attack than other investigations: the two direct perpetrators were killed in a confrontation with police shortly after the shootings and investigators say they've not yet seen any indication that a broader "network" of individuals was involved in plotting the attack.