Hate Crime Legislation vs. Free Speech

Great Debates
1

I think hate crime laws for the most part violate free speech. What I’m talking about are laws that punish an act when determined to be motivated by ‘hate’.

We have a right to hate. We have a right to be racist. We have a right to be prejudiced. It’s when someone acts on those feelings that a problem arises and only the act itself should be punished.

My thinking is that if there are 2 of the same crime committed but one of them falls under a hate crime, then the extra punishment is given because of what the perpetrator believed. Like it or not, it’s his belief and he’s entitled to them. He still committed the crime. Punish him for that.

My other problem with the legislation is how do you determine which group is worthy of falling under the umbrella? I think every category of people you can come up with is hated by another group.

Looking to have an honest discussion here. This has been bothering me for some time and what better place than here to get some feedback. I don’t think the public domain will discuss it as politicians are scared to death to oppose them or discuss them at length.

2

Then we should start calling Thought Crime, because that is what it really is.

3

Well, for starters, you need to differentiate between the right to have an opinion/belief and the right to act on it.

I have the right to believe that (fill in your favorite ethnic/racial/religious group) are subhuman scum who can’t do anything right, but I don’t have the right to discriminate against them in employment.

I have the right to believe that (FIYFE/R/RG) shouldn’t live in my neighborhood, but I don’t have the right to burn down their house to force them out.

I have the right to belive that I should sacrifice (FIYFE/R/RG) people on an altar in my backyard, but I don’t have the right to actually do so.

Hate crime laws are there to prevent actions which are illegal, not to prevent the hate/prejudice from which those actions spring.

That being said, I have my own personal feelings about hate crime laws.

When it comes to crimes against people, I think they shouldn’t be brought into play. If a group of hoods are going around looking for a member of (FIYFE/R/RG), they aren’t going to say “Hey, we might get an extra ten years if we do this to (FIYFE/R/RG)! We’d better not do it!” They’ll do it anyway.

When it comes to property, however, I feel that they should come into play. So a person who sprays swastikas on a synagouge, for example, should suffer more than your average graffitti artist. Someone who burns down a church should suffer more than your average arsonist.

Zev Steinhardt

4

I’m of the opinion that Thought Crime is an oxymoron. Thinking is not a crime, you cannot legislate inside peoples heads and any attempt to do so is a both a gross violation of our basic human rights and, IMO, doomed to failure.

5

I think that hate crimes legislation is both a necessary and a beneficial thing. Most current legislative measures, however, are of dubious legality and effectiveness. So I would prefer to leave it to the many informed lawyers of the SDMB to discuss those. I can offer my analysis of hate crimes laws in general.

Oblong and Freedom2 have it completely wrong. As convenient as it may be to yell “1984! Thought Crimes!”, it proceeds from a faulty understanding of what hate crimes are and what hate crimes legislation is supposed to achieve.

The first premise that must be dismantled is the idea that a hate crime and a non-hate crime are exactly the same except for the perpetrator’s motivation. This is patently false.

Furthermore, a the murder of a black man by an awoved white supremacist is also not necessarily a hate crime. The races/genders of the perpetrator and the victim are not always relevant.

What are relevant, however, are the victims. Hate crimes do not only damage the specific victim but terrorize other members of the victim’s race/gender/ethnicity, etc. If I, a white male, killed a Latina because I hated her for playing her music too loud upstairs, it would not be a hate crime. If I killed a random Latina on the street and specifically sent a racially motivated message to terrorize her community, I would be guilty of a greater crime that the murder of one woman.

To use another example: to kill a Jew you despise is one offense. To kill a Jew and spray paint his body with swastikas is an offense of a different color. The second effectively says “I picked a Jew and random and butchered him because I detest all Jews. You could be next.”

I believe that this is a more serious crime and therefore ought to demand a more serious penalty. Society has deemed such behavior to be absolutely heinous. Like rapists, child molesters, and serial-killing cannibals, perpetrators of hate crimes should be punished in accordance with the heinousness of their crimes.

Some people object by claiming that the implementation of hate crimes legislation would create protected groups. This is, of course, a red herring. Hate crimes laws protect all groups equally. Race, ethnicity, gender, sexual persuasion, etc. A straight, white, Christian male would be protected by the law every inch as much as a homosexual Puerto Rican. The fact that straight white males are rarely victims of hate crimes is completely and utterly irrelevant.

So I would ask Oblong and Freedom2 to justify their ignorance regarding these legislative measures, or at least to explain why they think their interpretations of hate crimes should be given a moment’s consideration.

6

Situation 1: Seeking to gain control of my brother’s vast financial empire, and knowing that with him dead, I have sole control of the family business, I aim a high-powered rifle at him and shoot, killing him instantly.

Situation 2: Seeking to get a 16-point buck in the first day of deer season, I aim a high-powered rifle at the deer and shoot. Unbeknownst to me, my brother was situated beyond the deer, and the bullet passes by the deer and hits him, killing him instantly.

In both of these situations, the same action has happened: I have shot a rifle and killed my brother. If you wish to treat these differently under the law, you must take into account my <i>intent</i>.

Hate crime legislation seeks to do just that.

We may certainly discuss whether the particular intentions proscribed by hate crime legislation are worthy, or unworthy, of extra punishment. But intention is, and always has been, a legitimate target in determining the severity, or even existence, of a crime.

  • Rick
7

Freedom, I hear ya man. We’re finally getting to be in the thought police stage where one is punished before one actually commits a crime. Londoners are well acquainted with Big Brother, as well…his “eyes” (cameras) are all over.

zev,
We have different opinions on rights. Being lumped in so often with libertarians, I think this one might be part of them. You, as an employer, do have a right to hire based on whatever qualifications you so choose. You also have a right to refuse sale to anyone, or to set any terms you so desire on such a sale. This is, of course, if we’re talking about rights insofar as something all men are born with. If we’re discussing rights as equal restrictions on other’s actions imposed by the state, then rights are whatever is deemed by law and you are absolutely correct.

In either case, I agree that people should, in theory AND in practice, be able to hate whatever they want. I don’t have a problem with Nazis, the KKK, Black Panthers, the IRA (even tho that’s a non-American interest but whatever), or anyone else who hates another group for whatever reason. I find these reasons to be absurd, usually, but I also have a pretty deep-seated and (some may say, but not me) irrational hatred of socialism. I have an inherent distrust of all legislative bodies currently in existence. I am also pretty much filled with at least a strong dislike for the persons who work toward those ends (since it is my opinion that one cannot divorce the person from the act they commit).

I am also a bit miffed at the recognition of “hate crimes.” WTF?! One guy beat the hell out of another guy. Calling it a hate crime doesn’t change the fact that the bastard should go to jail. As well, why should the punishments be any different? The only reason, as freedom said, to create this classification is to create thoughtcrime. And that, I needlessly might add, is doubleplusungood.

8

Now, perhaps I am missing something, but any crime in my area is going to send me a message, regardless of whether or not “pigs” was scrawled on the wall in blood. Recently here at Harvard(no, not a student just live in the area) there was a “Hate Crime” beating of some girl or guy. Sad story, but no more sad than any other beating that goes on anywhere.

I do agree with Bricker that intent is well within the realm of determining guilt in the event of a crime (especially in the scenario he mentions: accidental death) but the difference between assault and assault “used to send a message” is negligible IMO. To make this have a harsher penalty than run-of-the-mill assault is to slight the act of assault itself.

9

Sure, but don’t you think the following two messages are different:

  1. I should get the hell out of Cambridge. It’s just not safe anymore.

  2. There is a killer out there who targets <insert group here>. I am especially at risk due to my membership in this group, which is, of course, beyond my control.

Actually, it is intuitive to me that a stiffer pentalty does the reverse of trivializing the assault: it makes it and its implications more severe. Perhaps if you supplied some logic here it would benefit the discussion.

10

Maeglin…I have been in favor of hate crime legislation. Hate crimes are a form of terrorism. But lately I’m beginning to wonder if it would do any good other than to serve as retribution. Would it really deter? I’m not so sure. After all wasn’t one of the original arguments for the death penalty that it may serve as a deterrant? How can that be in light of the fact that now days we are frying guys left and right and for the most part nobody cares? It certainly doesn’t seem to be a determining factor for the fellow sitting on death row. One way or another whether it serves or not to send a strong message I cannot see how it would hurt us to punish people who engage in acts of terrorism more harshly.

Needs2know

11

**

Hate crime is specifically trying to punish hate which is a thought. Hate crime laws do not outlaw actions they prescribe extra punishment based on motivation. Arson, assault and murder are already illegal. Under a hate crime statute the perp is punished once for the action and once for the hate.

12

Well, either way I’m not liking Cambridge (in this hypothetical scenario, I actually love the place).

As far as “slighting” the assault, I meant slighting victims of non-racially motivated assault.

I do see what you mean that these hate crimes do strike only a targeted fear. But Just because I see some skinheads down at Harvard Square doesn’t mean I feel safe. As is common with hate groups, even association with the target of hatred makes one guilty (aka “nigger-lovers” for ex.). My mom got heat because of this when she lived in North Carolina for a stint. She got a “warning.” Besides being a yank, she was accused of being a nigger-lover. Now, perhaps you feel I am streching things a bit, but I don’t think a hate crime should carry any less (or more) punishment. Let’s look at this a little closer.

You said it yourself, it sends a message to a group of individuals. Now, this is what we are condemning when coupled with a standard crime. That is, a crime was committed and there was intent to spread fear to a group. Notice the conjuction there, there were really two seperate occurances. One is a crime: assault, battery, murder one, whatever. The other is a message, an idea, a thought. The two, agreed, are inexorably linked to one another; that is, this instance of the message is contained in the crime itself. But, if it is not illegal to spread such a message to begin with without a crime, then it shouldn’t be punishable (or allow cumulative punishment) when connected with a crime.

To do so would be a legal double-standard, something I hope we try to keep out of our lawbooks. What do you think?

13

Maeglin,

You are making an excellent point, and one which I had not thought of previously, so I appreciate your bringing it up.

But I’m still unsure if it suffices. Isn’t intimidation (of a non-direct sort) itself treated as an idea which is protected by freedom of expression? If a person promotes the idea that all Jews should be killed, that person is intimidating many Jews, but would not this person’s right to say this be protected? If so, then in the case where a crime has been committed which includes the additional element of intimidation, it would seem that an additional punishment is being added for something that is otherwise contrued as protected expression.

14

I had the occasion to sit down and talk to a former skinhead in dallas who was one of the ones sent to the pen for spraypainting a synagouge. Sitting in the pen for while definately made an impact on his life, and he rejected all the white supremest crap after he got out(he was jumped and stabbed repeatedly by his former friends not long after I spoke with him…almost died) I doubt that would have happened if he had just got the slap on the wrist most get for spray painting a building.

15

BRICKER contrasts intent to kill a deer and intent to kill a person and says:

With respect, Rick, I think you are confusing intent with motivation. “Intent” is the will to do a certain act; “motivation” is the reason the act is done. So while your examples deal with “intent” (specifically, intent to shoot a deer versus intent to shoot a man), they are not really applicable because they do not deal with motivation. Hate crimes attempt to punish not intent (which remains the same – intent to kill) but rather motivation (intent to kill a person because he is black. Or female or gay or whatever.).

Personally, I do not think motivation alone should suffice to transform an already-illegal act into an entirely new crime – i.e., murder versus murder with hateful motivation. Part of the difficulty, IMO, is that proving motivation is an inherently subjective thing. More to the point, I do not believe it is inherently worse to kill a man because he is black than it is to kill him because you want his wallet. Nor do I feel that the side-effect, for lack of a better term, of societal intimidation justifies the elevation of such actions to new crimes. A murderer who assaults and kills only women intimidates women; that does not mean that his actions – which might well be motivated by mysogyny – are somehow more criminal than the identical assault and murder of a man.

As I have said before, I believe that motivation can and should be considered during the punishment phase – as a mitigating or exacerbating circumstance, justifying a lesser or more severe punishment. I do not believe that motivitation ought to lead to the creation of new crimes, when the actions complained of are already covered by the definitions of crimes already on the books.

16

In Virginia, in the nineteen fifties, in a number of small towns there was a kind of segregation which involved criminal activity, and might serve as an example. In those towns a certain line, either a street, or creek, or rail crossing, separated the white and black parts of town. It was well known that black people who were on the wrong side of that line would be arrested.

In the early days of civil rights that method of intimidation was taken away. To replace it, it became increasingly more common that blacks who crossed the line were assaulted, beaten, and at times even killed. Those actions were serious felonies. As felonies, they attracted the investigative power of federal authorities, and could cause real trouble for the police if they had any involvement in allowing such things to happen.

But simply making sure that blacks knew of the line, and were reminded of the possible consequences of violating the line was not felonious. It might reach the level of misdemeanor assault, but even that was very hard to prosecute even with witness accounts. So yelling “You better run, nigger, the sun is going down!” was at most, a misdemeanor. But the fact that murders did occur made the threat very real.

So, by the commission of misdemeanors, an entire population is intimidated, and effectively imprisoned. It’s a hate crime. The misdemeanor is a part of a de facto conspiracy of hatred that included murder, and false imprisonment. It deserves to be treated as the crime it accomplishes, not the crime it appears to be on the surface.

Tris

17

I think that for the most part all crimes are motivated by hate. Yes, there are other reasons to commit a crime, but I think it all boils down to hate.

I have the right to say or write “I hate all *****,” and should not be charged with a crime for doing so. Now, if I should spraypaint this on a place where this particular group hangs out, well, that’s vandalism, but shouldn’t be punishable under hate crime laws.

Here’s another (weak) example. I loathe the band 311. Can not stand their music. In college, however, I was a minority in that respect. Going down the hallways at school, I would hear 311 playing in many, many rooms. Should I get the ACLU in and ban the music of 311? Clearly my civil rights were being violated. But, no. That wouldn’t work at all.

I’m all for letting the hate groups have their say in public places. Absolutely. That way we know where they are. If you don’t like what they preach, then don’t go. Or, have a counter-rally. But don’t punish them for what they say.

If their words erupt into actions, nail them, and nail them hard. But not with laws that seem to be on shaky legal ground. Take murder: Billy is in a group that dislikes Elbonians. Billy goes to a store in Cambridge run by an Elbonian. Billy kills the Elbonian clerk. During his trial, the prosecution could submit that Billy should go to jail for a very long time because he was a bad man who killed an Elbonian. Now, because of his ties to the anti-Elbonian group, and his demonstrated hate of at least one Elbonian in particular, he should do life. Why? Odds are that he’ll do it again. Don’t bring in other laws – work within the existing laws.

18

I agree with the above that motivation should be taken in as it relates to recidivism and that can be done within the framework of the existing law.
The problem with the small town example is that if everyone who committed an assault was put in jail the assaults would stop, thus the problem was not lack of hate crime laws but the unwillingness to prosecute the criminals. This is no longer a problem so why pass a law to deal with it.

19

But it can be prosecuted that way.

The only way of knowing that is by trying to get in the perpetrators head and determine the motive. How do you do that? There are 2 things here to consider, murdering and sending a message. It’s illegal to murder. I don’t think it’s wrong to send a message. It’s HOW you send the message that can be illegal and should be prosecuted as such. The KKK does’t get prosecuted for holding a rally but they are sending a message. They are doing it in a legal manner.

Others here, specifically aynrandlover, jodi and Izzy have summed up my thoughts as well.

I saw an item on a news site about France passing some type of ban on hate crime sites and yahoo was involved. I didn’t read it.

20

Jodi, m’love, we already do this in non-hate related contexts. In New York state, for example, one of the ways murder 2 becomes murder 1 (and thus death-eligible) is if the murderer kills a witness to a previous crime. In that case, the motivation - the reason I killed the dude was that he was going to rat me out - is what transforms a “normal” murder 2 case into a murder 1 case.

Needs, your deterrence/retribution point is well taken, but I disagree. Deterrence and retribution are the two often competing rationales for criminal punishment. While I prefer deterrence over retribution, I think retribution gets a bad rap - it’s not really the Old Testament “eye for an eye” thing. In the case of hate crimes, I think that society has a right to say that the concept of hurting/killing someone simply because of what he/she is outrages us, and we will not stand for it.
Just because a punishment doesn’t deter, or deters insufficiently, doesn’t of itself mean that the punishment is invalid.

Sua