In November, former State Department official Stuart Seldowitz was filmed harassing a Muslim street-cart vendor in New York City. In multiple videos posted online, Seldowitz taunts the vendor, making vague threats against both him and his family, all the while spewing hateful comments about Palestinians and Muslims. After the videos caused a stir on social media, Seldowitz was charged with stalking, harassment, and a hate crime, all in violation of New York criminal law. Against a backdrop of growing free speech controversies in the United States, including those related to the war between Hamas and Israel, some commentators have raised concerns about the implications of such prosecutions. But it is important to distinguish prosecutions for speech, which this is not, from prosecutions for other conduct in which such speech serves as evidence for a potential hate crime enhancement.

As the war rages in Gaza, reports of anti-Arab, anti-Muslim, and antisemitic hate crimes have surged in the United States. The Seldowitz case is part of that trend, but it can be distinguished from other recent high-profile incidents – such as the fatal stabbing of a Palestinian American child in Illinois, the shooting of three college students of Palestinian descent in Vermont, and numerous acts of vandalism against synagogues across the country – because it did not involve an act of physical violence or property damage. Decades ago, the Supreme Court held that hate crime laws like the one with which Seldowitz has been charged do not violate the First Amendment. In some respects, however, the Seldowitz case reveals a tension that can arise, in a narrow subset of cases, between the enforcement of these laws and a defendant’s First Amendment rights.

Central to this tension is the relevance of a defendant’s speech during the commission of an alleged hate crime as a matter of law, on the one hand, and as a matter of fact, on the other. As a matter of law, while a defendant’s contemporaneous speech is often relevant to proving the intent required to establish a hate crime violation, the state cannot punish someone for the content of their speech, no matter how abhorrent. As a matter of fact, however, but for the content of his speech and, critically, the outrage his words provoked, Seldowitz arguably would not have been charged.

First, let’s consider the law. In New York, a hate crime cannot be charged as a stand-alone crime, but only as an enhancement on top of an underlying offense. This means someone cannot commit a hate crime in that state without first violating a separate criminal statute. Seldowitz, for example, has been charged not only with a hate crime, but also with stalking in the fourth degree and aggravated harassment in the second degree, both of which are “specified offenses” in New York’s hate crime law. If a person commits a specified offense because of a victim’s perceived national origin, religion, or another characteristic listed in the state’s hate crime law, then that person has committed a hate crime and may be subject to increased punishment.

Under no circumstances, however, could Seldowitz be convicted on state hate crime charges if he is acquitted on the underlying stalking charges. (According to court records, Seldowitz faces two counts of stalking in the fourth degree, both subject to a hate crime enhancement, and one count of aggravated harassment in the second degree, which is not subject to a hate crime enhancement.) In other words, not in New York – or in any state that follows a similar enhancement model – does “hate” make the crime.

As for the legal relevance of what Seldowitz said to the vendor, some of the threats he made against the vendor and his family could amount to unprotected speech in support of the stalking charge. In New York, stalking in the fourth degree is a misdemeanor, and occurs when someone “intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct” would cause, among other things, a reasonable fear of physical harm to that person or their family.

In contrast, the hateful comments that Seldowitz made about Palestinians and Muslims likely amount to protected speech. That does not mean, however, that his comments are not relevant to a possible hate crime charge or inadmissible as evidence in support of that charge. To prove a hate crime in New York, the state must show not only that the defendant committed a specified offense, but also that the defendant intentionally selected the victim of that offense “because of a belief or perception regarding” their national origin, ancestry, religion, or some other characteristic enumerated in the statute. In the case against Seldowitz, his comments seem like pretty good evidence that, but for his perception of the vendor’s national origin, ancestry, or religion, he would not have targeted him in the first place.

In this respect, the use of a hate crime perpetrator’s speech to demonstrate intent is not all that different from how speech is used to prove intent in other criminal-law contexts, or even in the context of civil rights enforcement. Consider a hypothetical employment discrimination lawsuit filed by a woman who showed up for a job interview in which, before brusquely dismissing her, the employer said that he thought only men were capable of doing the job. The basis of her lawsuit would not be what the employer said, but rather what he did, i.e., summarily dismiss her because she was a woman. As for what he said, his comments serve as evidence of his intent.

Hate crime prosecutions work similarly. The hypothetical employer, however, would have faced no legal consequences but for his discriminatory intent. In contrast, had Seldowitz targeted the vendor for some reason other than his perceived national origin, ancestry, or religion, he might nevertheless be subject to a stalking charge. In short, as a matter of law, the criminal case against Seldowitz does not turn on the hateful comments that he made, nor is the content of his speech the basis for the added hate crime charge. Rather, his comments serve as evidence of his intent to allegedly stalk the vendor because of his perceived identity, which in turn is the basis for the hate crime charge. That distinction, however subtle, is legally significant.

But then come the facts. The law notwithstanding, the facts of the Seldowitz case suggest that, but for the content of his speech, and the social media response that his comments provoked, he might not have faced criminal prosecution at all. Within the context of a law enforcement investigation, if a defendant’s contemporaneous hate speech is the cart, then a suspected crime is the horse. You need both to make a potential hate crime, but the latter draws the investigation, and if all you have is the former, then you cannot go anywhere.

In a narrow subset of hate crime cases, however, there is a risk that law enforcement officers happen upon a cart and then go looking for a horse. These cases involve high-profile or controversial incidents in which the speaker does not commit an act of physical violence, property damage, or some other conduct that would likely come to the attention of law enforcement independent of the speaker’s contemporaneous speech or potential bias motivation. Instead, the speaker engages in conduct that, as in the Seldowitz case, arguably triggers a colorable claim of stalking, harassment, or some other criminal offense that is susceptible of a capacious reading and, perhaps for that reason and others, is charged less often than facts allow.

We needn’t draw conclusions about the Seldowitz investigation to recognize that, in his case and others like it, there is a risk that investigators will put the cart before the horse. This should not be taken as a critique of hate crime laws, but rather as a more general comment about the breadth of criminal law and the significant discretion that state officials have when it comes to enforcement. After all, hate crime enhancement laws like the one in New York do not expand the state’s criminal jurisdiction or convert otherwise lawful conduct into a criminal offense. In other words, as a matter of law, hate does not make the crime. Nevertheless, as a matter of fact, we should ask ourselves whether, in some cases, but for the recording, dissemination, and, critically, the content of a defendant’s speech, no crime would have been charged. And if those cases do exist, then to what extent, if at all, should the facts change how we think about the law?

IMAGE: A Halal food cart was among vendors using generator-provided electricity to feed people during a Halloween power outage in New York. (Photo by Antonio Bolfo/Reportage by Getty Images)