Criminalizing hate shackles everyone’s rights

Friday, October 30, 1998

If emotions could be legislated effectively, even the staunchest believers in freedom of thought likely would look the other way as belief-altering bills flew through Congress and statehouses across the nation.

Who, after all, would oppose legislation that eliminated greed, envy and selfishness? Who would protest laws that resulted in widespread charity, happiness and kindness? Who would complain about statutes that created a nation free of bias, prejudice and intolerance?

Whether such a utopia is desirable is a moot question, as we know that human feelings cannot effectively be banned or required. Yet the new call for additional hate-crime legislation attempts to do just that — to punish thoughts and beliefs deemed by the political majority to be offensive and unacceptable.

Not surprisingly, this call to restrict freedom of expression comes on the heels of a tragedy abhorred by every decent American — the brutal murder of Matthew Shepard in Laramie, Wyo. Shepard, as we all now know, was gay. His alleged killers, we are told, were expressing their hatred of gays when they beat Shepard, strapped him to a fence and left him to die.

President Clinton and others outraged by this senseless violence immediately called upon Congress to pass broader hate-crime legislation. Under the existing hate-crime law, the federal government can prosecute and seek enhanced penalties for state crimes that are motivated by the victim’s race, color, religion and national origin. The proposed new legislation would add sexual orientation, disability and gender to that list.

However well-intentioned this proposed expansion of federal power might be, the legislation is a bad idea. In fact, the memory of Matthew Shepard would be better honored if the current federal hate-crime law and the state laws like it were repealed, not expanded. Hate-crime laws not only harm the minority interests that they were designed to protect, they also jeopardize everyone’s First Amendment rights. Absent evidence that hate-crime laws are working (and little, if any, evidence exists that they are), these adverse side effects outweigh any benefit of either the existing law or the proposed legislation.

By their nature, hate-crime laws single out minorities and require prosecutors to treat crimes against minorities differently than crimes against others. At the same time that women, blacks and gays seek equal treatment under the law and in society, hate-crime laws perpetuate and encourage isolating categorizations. At the same time that minorities seek to eradicate distinctions based on bias and prejudice, hate-crime laws hold minorities before juries as victims who are defined predominantly by their race, religion and sexual orientation.

Hate-crime laws also unnecessarily infringe upon important First Amendment rights. Central to any hate-crime prosecution is determining whether the defendant ever expressed any bias against the minority at issue. Did the defendant ever attend a Ku Klux Klan meeting? Did he ever say he disliked gays? Did he ever make jokes about Jews? Behavior that indisputably is protected by the First Amendment becomes essential evidence in an attempt to punish a defendant for what he was thinking (and perhaps saying) when he committed a criminal act.

The risk to the First Amendment is highest in less serious — and therefore more frequent — hate crimes. For every murder motivated by prejudice, there are hundreds, if not thousands, of minor assaults and other misdemeanors. Is purse-snatching a hate crime because the offender’s victims are only women? What if the offender is black and all of his victims are white? In cases like these, the “hate” will not be apparent from the crime itself, but only from the defendant’s thoughts, statements and beliefs. Prosecutors, judges and juries will be asked to evaluate not only a defendant’s conduct, but also his beliefs and the way in which he expresses them. The freedoms of thought, association and expression quickly become hollow in these circumstances.

Threats to the First Amendment also exist in the government’s prosecution each year of hundreds of hate-crime cases in which the only offense is what the government calls an “act of intimidation.” In most cases, these “acts of intimidation” are not “acts” at all, but rather only speech that has been criminalized by hate-crime laws. Expanding the reach of hate-crime statutes undoubtedly would criminalize more speech and narrow even further the First Amendment protections that have for two centuries shielded unpopular, ignorant and even hateful speech from criminal prosecution.

The call for additional hate-crime legislation is as ironic as it is misguided. Despite the outcry for harsher penalties, no hate-crime law could provide a more severe punishment than the death sentences already facing Shepard’s accused attackers. Nor is there any evidence to suggest that a hate-crime law covering sexual orientation would have deterred those attackers — or the attackers of the next murder or assault victim.

Unfortunately for all of us, neither the crimes nor the hate will disappear anytime soon. Criminalizing the hate, however, will not eradicate it from our society. Criminalization will instead only further segregate minorities and jeopardize cherished First Amendment freedoms. As tempted as we might be to claim that the hateful should not be allowed to enjoy these freedoms, we know that the best protection for our own speech is the protection that allows those who disagree with us to speak and think freely.

— Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.