In yesterday's post I stated that there are three objections commonly raised against the enactment of the Hate Crimes Act currently pending in Congress. Those objections are that (1) Congress lacks authority to enact the law; (2) the law infringes upon freedom of speech; and (3) the law confers "special treatment" on certain favored groups. I addressed the first objection in yesterday's post. Today I tackle the second and third arguments against the law.
2. Freedom of Expression
It has been argued that the Hate Crimes law will make it illegal to express disapproval of homosexual behavior or what opponents of the bill call "sexual confusion." That does not appear to be the case. Here is the operative language of the bill:
Whoever … willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person … shall be imprisoned not more than 10 years …; and … shall be imprisoned for any term of years or for life … if … death results from the offense.
A person may be found guilty of a hate crime under this law only if they commit an act of violence or attempt to commit an act of violence. The law punishes conduct, not speech. The law does not even punish threats – only actions.
It is true that one element of the offense is the motive of the defendant, and that the prosecution might be tempted to prove the defendant's motive by introducing evidence that the defendant had uttered racist or sexist or homophobic language in the past, or had belonged to organizations that discriminate. As presently written the law prohibits the use of past statements or membership except for purposes of impeachment. The bill provides:
In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness.'
What this means is that if the defendant does not testify at the trial evidence of his or her past statements or associations will be inadmissible unless there is a direct connection to the violent event. For example, if the defendant attacked the victim as part of a racist gang, the fact of the defendant's membership in the gang would be admissible – but if the defendant is charged with attacking the victim by himself or with others not members of a gang, the fact of his membership in the gang would not be admissible. However, if the defendant takes the stand and says "I have never been a member of any racist gang," then on cross examination the prosecutor could question the defendant about his past associations.
Furthermore, Section 8 of the statute specifically provides:
Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, the Constitution.
This goes without saying. No statute may punish speech that is protected by the Constitution – and speech that disapproves of homosexuality, or that condemns it – even hate speech – is protected by the First Amendment so long as it does constitute a threat, an incitement to riot, or a face-to-face provocation of violence.
3. "Special Treatment" of Particular Groups of People
It has been argued that this law will offer more protection to a person leaving a gay bar than it does to a grandmother standing in front of an ATM – in other words, that some people in society will receive more protection from the criminal law than other people. I don't think that is accurate. In my opinion this law protects everyone.
The Hate Crimes Act provides that no person may be physically assaulted on account of their race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. The law applies if a group of blacks attacks a white person because he is white - if a group of women attack a man because he is a man – if a group of gays or lesbians attack a person because he is heterosexual. OK, there doesn't seem to be a violation of the law if someone is attacked because of "lack of disability," but you get the point. The law targets hatred and protects the victims of hatred. It doesn't mean that some people get more protection than others. If Grandma is attacked because she is a woman or because she is Polish or because she is Lutheran or because she is heterosexual then she is protected by this law. If she or any one of us is attacked at an ATM not because of hatred but simply for the cold, hard cash, well that is not a violation of this law. But that does not mean that some people are receiving "special treatment." We are, in fact, all treated the same under this law. We would all be protected against crimes of violence motivated by hatred of the groups we belong to.
In 1993 the Supreme Court upheld the constitutionality of a state hate crimes law in Wisconsin v. Mitchell. In that case the defendants were a group of blacks who had severely beaten a white boy, leaving him in a coma. Just before committing the crime the defendants had watched the movie "Mississippi Burning" which depicted acts of violence by whites against blacks. They apparently learned the wrong lesson from the film. Hatred is hatred, no matter who it is directed against, and we all deserve to be protected against crimes like this.
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Let's see, it says, "… no person may be physically assaulted on account of their race, color, religion, national origin, gender, sexual orientation, gender identity, or disability."
But no person may (legally) be physically assaulted anyway. And every state has in addition to forty or so kinds of assault a hate crimes law saying more or less what the federal bill will say. Why not just add racial/ethnic motivation as an aggravating factor to be considered during sentencing? I think this is already true in some states.
As to freedom of expression, it appears to me that many of the lawmakers who introduce hate crime legislation ( usually with considerable fanfare) are pandering to some minority or perhaps to uninformed dogooders in general by appearing to ignore the constitutional protection of speech (even when in bad taste)
At North Carolina State U. two student who wrote hate messages in an area filled with other graffitti were threatened with all sorts of things including expulsion and the entire university system went into code red mode to create new rukles forbidding forms of speech. It was clear that minorities wanted blood. It seemed to be not so much about equal protection as about special protection and special punishment for the use of forbidden words.
This whole thing looks to me like legislators trying to make political hay by pretending to do something.