What Is Wrong with the Federal Hate Crime Law?

By John W. Whitehead
April 22, 2009

After 12 years of protracted debate, it looks as if the nation will finally get a federal hate crimes law that applies to crimes motivated by a person's actual or perceived sexual orientation, gender identity or disability. All this despite the fact, according to the FBI, that of the nearly 1.5 million violent crimes in the U.S. in 2007, only 1,460 were reportedly based on sexual orientation.

The Local Law Enforcement Hate Crimes Act of 2009, currently before the House Judiciary Committee, is expected to come up for a vote before the House of Representatives later this spring. This proposed law gives federal officials greater authority to engage in hate crime investigations at the local and state level. It also removes the current prerequisite that the victim be engaging in a federally protected activity like voting or going to school. In other words, it opens the door for federal law enforcement officials (whether it be agents from the FBI, the Department of Homeland Security and so on) to crack down on undesirable behavior wherever it occurs.

The problem, which few want to acknowledge for fear of being labeled politically incorrect, or worse homophobic, is that in order to crack down on hateful behavior, hateful thoughts and expression must also be targeted--which runs diametrically counter to the First Amendment's protections for free speech and expression.

It's a complicated, polarizing issue that stirs up deep-seated wells of prejudice, fear and bigotry. However, even with the best of intentions behind it, hate crime legislation on the whole is riddled with problems--and that was the case even before protections for sexual orientation were included.

First, hate crime laws are shortsighted in that they favor a particular class of individuals for protection and seek to punish certain prejudices. For instance, the Hate Crimes Act singles gay people out for expanded protection from hate crimes, yet fails to address the thousands of crimes that occur each year against people who, while not gay, just don't "fit in." As one journalist asked, "Why not accord the same enhanced protection to kids who stutter, teenagers with bad acne, or adults who are overweight, homeless, or have unusually large ears?"

What advocates of hate crime laws fail to understand is that in targeting people who hold certain viewpoints for censure, they're creating a preferred class and a victim class of discontents. In other words, by targeting for censure entire groups of people who, either due to education, upbringing, religious views or some other influence, subscribe to views that may be perceived as politically incorrect, they are laying the groundwork for an underclass of discontents--one that may eventually be driven underground and become violent. In other words, hate crime laws may be the spawning ground for a new class of domestic terrorists.

Second, the ramifications go far beyond the intended purpose of dissuading acts of violence against a protected class to actually chilling free speech. On the whole, hate crime laws unnecessarily blur the distinction between what might be constitutionally protected, albeit deplorable, speech and criminal behavior. Eventually, this will spill over into criminalizing any kind of speech that government officials deem to be hateful or distasteful. Thus, hate crime laws, well-meaning though they may seem, punish not just the act but the motive and open the door for a whole new realm of prosecutions, namely thought crimes. In other words, when a crime is committed, hate crime legislation adds additional penalties for the "motivation" (or thoughts) the individual had in carrying out the crime.

Hate crime legislation also gives the government yet another heavy-handed tool for censoring expression. For example, peaceful free expression has been prosecuted as a hate crime. In one instance, a group of Christians were prosecuted under a state hate crime law for "singing hymns" and peacefully "carrying signs" while attending a homosexual fair in Pennsylvania. Because the signs challenged the morality of homosexuality, these Christians were charged with three felonies and five misdemeanors and faced 47 years in prison for attempting to preach at a homosexual street fair.

Thus, there is no way hate crime legislation will not chill constitutionally protected speech. Under such a rubric, all speech will automatically become suspect, the prelude to an act of violence. Thus, an off-color joke you once told could be used against you as an example of hate speech; casual remarks you once made could be turned into a history of hateful rhetoric.

Hate crime laws also remove the burden of assuming that someone is "innocent until proven guilty." Indeed, this mindset is already taking hold. According to the Anti-Defamation League, the concern isn't so much with organized "hate" groups such as the Skinheads. Rather, "[y]our next-door neighbor or the kid in your classroom with misinformed ideas are much more numerous and require more attention."

Third, this expanded hate crime law creates a whole new class of investigative techniques by government agents and the police.   Hate crime laws create a bureaucratic nightmare that poses real threats to our constitutional rights. By providing millions of dollars in funding to help state and local agencies pay for investigating and prosecuting hate crimes, hate crime legislation incites prosecutors to further intimidate defendants by piling on the charges. Under the proposed federal hate crime law, every crime could potentially be a hate crime. If you happen to be charged with assault and battery against someone, under the law, the government will be looking to see if somewhere along the way you expressed views reflecting hatred for the victim's class.

For example, take a case in Wisconsin where three white men attacked a black man who was sitting in a park talking with his wife, who is white. During the attack, one of the attackers identified himself as a "skinhead" and used a racial slur. At the trial that followed, prosecutors pointed out that one of the attackers, Matthew David Cannon, had a tattoo inside his lip that says "skins," another tattoo on his leg that says "LSD," which stands for "Local Skins Division," and a shaved head at the time of the assault. Cannon's objection that the government was persecuting him for his membership in an unpopular group was rejected in light of the fact that he had engaged in an act of "racial hatred." Following along, any person sporting such a tattoo would have to become a suspect in future incidents involving racially-motivated attacks.

The Hate Crimes Act will also create the need for a whole new type of surveillance for individuals possessing politically incorrect viewpoints. In fact, it dovetails neatly with NSA programs such as Aquaint that are intended to not only track your internet activity but formulate patterns based on what you read and browse and predict your behavior, and recent reports from the Department of Homeland Security calling for greater surveillance of individuals possessing so-called "extremist" views.

Fourth, hate crime laws are redundant. There are already a host of stiff penalties on the books for those who commit acts of unspeakable horror, whether the crimes are based on an individual's race, religion, national origin or sexual orientation. Furthermore, 45 states, as well as the District of Columbia and the federal government, already have hate crime laws on their books, making a federal law unnecessary.

Thus, what we are building up to with the Hate Crimes Act of 2009 is a society that is monolithic in its viewpoint (one where the political right and left comfortably meet and agree) and where everything you do that diverges from the mainstream will be perceived as politically incorrect and extremist.

Yet the bottom line is simply that you cannot legislate an end to ignorance, prejudice and bigotry, and that's the problem with the Hate Crimes Act. All legislation will do is punish actions and sweep in more innocent people. But it won't change hearts and minds--and that's where you have to start in combating hatred and bigotry.

WC: 1320

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