Hate-crime bills raise First Amendment concerns for some

Monday, April 23, 2001

As recent census data shows the country growing in racial, cultural and ethnic diversity, many states are using hate-crime legislation to try to protect those growing numbers of minorities.

Legislative initiatives that would broaden such legal protections have been introduced in several states — including Texas, Utah, Hawaii and North Carolina — with varying success. Other states, like Idaho, have faced recent controversy over the application of their existing hate-crime laws.

Opponents of hate-crime laws cite concerns that they infringe on First Amendment-protected speech. Nevertheless, supporters, claiming that such measures are necessary to protect minority groups and other underserved populations, continue to lobby for them.

Texas has led the way this year with the introduction of its new hate-crime initiatives. The state Legislature is considering two bills that would extend the protections given to minorities and stiffen the penalties for bias-motivated crimes.

Authored by state Sen. Rodney Ellis, D-Houston, Senate Bill 87 would stiffen the punishment for crimes motivated by the victim’s race, color, disability, national origin or ancestry, as well as sexual orientation.

A similar measure, House Bill 587, authored by state Rep. Senfronia Thompson, D-Houston, further extends protected classes to include people discriminated against for their age or their gender.

The Texas Senate bill has been postponed, but the House bill passed today, 87-60.

In Utah, new hate-crime legislation, sponsored by Sen. Pete Suazo, D- Salt Lake City, the state’s only Latino senator, was introduced in the Senate’s session on Feb. 28, only to be defeated in the House of Representatives.

According to Suazo’s office, the legislation would have extended legal protection to many of Utah’s minority groups and stiffened penalties for racially and hate-motivated crimes. The bill, modeled after the Texas measures, would have built upon existing legislation enacted in 1992, which, according to Suazo’s office, was weakened by conservative resistance to laws protecting identified groups such as gays.

“The previous legislation was too broad,” said a Suazo representative. “The new legislation gives prosecutor’s the tools they need to prosecute the cases effectively, sentencing not only based upon the crime, but the motive as well.”

However, vocal opposition to the measure was expressed by many lawmakers, including Sen. David Gladwell, R-Ogden, who called the legislation an unconstitutional encroachment on the First Amendment.

In a Jan. 26 article in The Salt Lake City Tribune, Gladwell, while condemning crimes motivated by hate or prejudice, expressed concern that tying charges to motives “enters the realm of how someone thinks or feels,” thus violating a person’s First Amendment right to free speech.

“In a way to get rid of discrimination in society, we actually authorize or make legal another form of discrimination,” Gladwell told the Tribune.

Suazo’s office said a new bill could possibly be drafted and presented during the next legislative session.

Meanwhile, Idaho faces a different challenge to its hate-crime law. Prosecutors have charged a Council man with a felony in connection with the use of a racial slur in a confrontation with a referee at a high school football game last fall.

Lonnie Rae, who was scheduled to be arraigned on April 2, is charged with misdemeanor malicious harassment under Idaho’s hate-crime law. If convicted, Rae could face a maximum penalty of five years in prison and a $5,000 fine.

The October incident involved Rae’s wife, Kim, a reporter with the Adams County Record. Kim Rae attempted to take pictures of the referees for an article, but the referees objected. When she persisted, referee Ken Manley tried to take her camera away. Lonnie Rae walked up as the struggle over the camera ended.

According to a March 10 Idaho Statesman article, authorities said, that Rae “yelled at Manley and called him a derogatory term for blacks.”

According to the Statesman, Council residents have blamed the Raes for the incident, resulting in additional disputes. Kim Rae also was forced to resign from the Record when local businesses refused to advertise while she worked there, the Statesman reported.

Rae’s attorney, Daniel Hawkley of Boise, said in a telephone interview that the charge against Lonnie Rae was “ridiculous” and that the law itself might be unconstitutional.

“The charge is based solely on the language (Rae) used,” said Hawkley. “The only conduct that they have on my client is language.

“Mr. and Mrs. Rae were there in the exercise of their First Amendment rights,” he said.

But Jack Van Valkenburgh, president of the Idaho chapter of the ACLU, says he thinks the Idaho law is legal. “It doesn’t criminalize anything that isn’t already criminal,” he said.

Expert opinion on hate-crime legislation varies.

Tom McCoy, professor at the Vanderbilt University School of Law, cites two major problems with hate-crime laws.

“The first problem is that, if you don’t make crimes against any group a hate crime, you have a serious equal-protection problem,” he said. “Secondly, although on their face they don’t violate the First Amendment, often they show the intent of the actor by bringing into evidence what the actor has said or written.”

“People end up being punished for what they say, which is very bothersome,” McCoy said.

On the other hand, Nadine Strossen, national president of the American Civil Liberties Union, says that the ACLU supports the concept of hate-crime legislation, depending on how the legislation is written.

“It is a wonderful idea, but it’s fraught with danger,” she said.