Authored by Jonathan Turley,

After the Southern Poverty Law Center scandal of actually funding and encouraging racist protests, it appears that at least one individual has created his own orchestrated racist incident.

In Chicago (where Jussie Smollett committed his infamous racist hoax), a burning cross was denounced by Mayor Brandon Johnson as a sign of the racism in society.

Johnson, however, refused to address the fact that the cross burning was actually the work of an anti-Trump liberal student.

University of Illinois senior Merlin Lu said it was never intended as a racist symbol, but the question is whether it could still be charged as a hate crime.

In posting a reward for the culprit soon after the incident, Rev. Michael Pfleger declared that “this bold rise of racism must be condemned by every race, faith community, and Chicagoan as was done with the swastika and treated as a hate crime.”

It turns out that this was not evidence of the rise of racism but another possible hoax.

Lu bizarrely claimed that he was unaware that a burning cross had racist connotations and insisted that there was no racist message intended.

Others suspected that this was a type of false-flag effort to outrage the left.

Johnson later denounced the incident as a “symbol of hatred is one that we must continue to reject, and I wholeheartedly reject it. I can’t speak to anyone’s motives; I can only speak to the impact, and the impact was devastating.”

It seems curious that Johnson would not “speak to motives” when he knows that this was set by a leftist radical.

The question is whether it is still a hate crime under Illinois law. Under Section 12-7.1, the law states:

The notable language is “regardless of the existence of any other motivating factor or factors.” The inclusion of property damage could allow a charge to be brought.

The case could rekindle the debate over intent for threats. Many professors and pundits on the left have long argued that the standard should be how a message is received rather than how it is intended. That issue arose in the decision in Counterman v. Colorado, 600 U.S. 66 (2023), concerning the standard for the “true threats” exception to the First Amendment. In an opinion written by Justice Elena Kagan, the Court reversed the conviction. While rejecting an “objective” standard, the Court declared that such cases had to be based on evidence of the defendant’s state of mind under a “subjective standard.” Accordingly, the government must prove recklessness, but not necessarily intent: “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

Recklessness would be a dangerous standard for the defense of Merlin Liu. He insists that he was entirely clueless about what a burning cross represents in our culture. Yet, if Chicago does not bring a hate crime charge, it could be cited in future cases in suggesting that intent or “motivating factors” do matter in such cases.

I have favored stronger scienter or intent standards in true threat cases. It seems like a hate crime should, at a minimum, also be based on an intent to cause such alarm or fear. That does not mean that Liu’s defense of ignorance will work. However, in my view, prosecutors should have to show more than how others perceive a protest.

Unlike Johnson, the prosecutors and the Court will have to “speak to motivations” before this case is concluded.

Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”