Say what you want, hate-crimes bill protects free speech

Sunday, October 25, 2009

Editor’s note: On Oct. 28, President Obama signed into law the defense-funding bill that included the hate-crimes measure.

After years of heated debate, the Senate gave final approval on Oct. 22 to legislation already passed by the House that expands federal hate-crimes statutes to include sexual orientation and gender identity. President Obama has promised to sign it into law.

Last-ditch efforts by many conservative Christian groups have failed to stop
the bill – known as the Matthew Shepard and James Byrd, Jr. Hate Crimes
Prevention Act, after the gay man murdered in Wyoming in 1998 and the
African-American man dragged to his death behind a pickup truck in Texas that
same year.

Once it becomes law, the Department of Justice will have broader authority to
investigate and prosecute violent crimes “motivated by prejudice based on the
actual or perceived race, color, religion, national origin, gender, sexual
orientation, gender identity, or disability of the victim.”

Of the various arguments advanced by some social conservatives against the
bill, the one that has gotten the most traction with the public is the charge
that the legislation would “criminalize preaching the Gospel and put preachers
in the crosshairs,” in the words of a letter sent to senators by 60 conservative
leaders in June.

Scary stuff, but is it true?

To illustrate their fears, religious conservatives cite cases in Europe and
Canada where a few pastors have been prosecuted in recent years for “hate
speech” after they spoke out against homosexuality.  These prosecutions are
indeed insidious attacks on free speech and free exercise of religion – but they
all occurred in countries without a First Amendment.

In my view, it can’t happen here. Americans have, after all, lived under
hate-crimes laws, federal and state, for decades – and some of the state laws
already include sexual orientation. In all that time, religious leaders of
various stripes have preached controversial beliefs about race, religion and
national origin without ever being charged with a hate crime based on the
content of their speech.

Thanks to the First Amendment, we enjoy the strongest protection for free
expression in the world. In a society where even white supremacists,
anti-Semites and anti-gay hatemongers like the Rev. Fred Phelps are free to
speak, local pastors need not worry about being prosecuted for preaching the
Gospel as they understand it.

But just to be certain that the legislation will not be misused, sponsors of
the hate-crimes bill have added language to ensure that “nothing in the Act
shall be construed to prohibit any constitutionally protected speech.” Further,
“nothing in this Act shall be construed to allow prosecution based solely upon
an individual’s expression of racial, religious, political, or other beliefs or
solely upon an individual’s membership in a group advocating of espousing such

The only speech affected by this bill is speech that has no constitutional
protection now, such as speech that directs people to commit violence, in a
manner likely to incite imminent lawless action. Bias-motivated acts of violence
are the target of this legislation, not speech protected by the First

While Americans remain divided about homosexuality, we are largely united on
the question of safety. That’s why surveys show widespread public support for
including sexual orientation and gender identity in hate-crimes laws – 68% in
favor, according to a 2007 poll.

Since a crime is a crime, argue opponents of the bill, no special legislation
is needed to address attacks on gay people. Proponents respond that when people
are singled out because of their race, religion, national origin, gender, sexual
orientation, or disability, the crime is more than an attack on an individual
victim; it is a hate crime that intimidates an entire group of people. In a free
society, no one should live in fear because of who they are.

According to the FBI, hate crimes motivated by sexual-orientation bias are a
growing problem in the United States. Our challenge is to do everything we can
to combat these crimes without in any way undermining constitutional protections
for freedom of speech and free exercise of religion.

Charles C. Haynes is senior scholar at the First Amendment Center, 555
Pennsylvania Ave., N.W., Washington, D.C. 20001. Web:

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