Wednesday, April 22, 2009

Hate Speech Police

More and more hate crimes laws are being woven into the fabric of our legal structure and even our societal assumptions about what crimes are the really heinous ones. If two people are murdered alongside a road, one is a WASP and the other is a female Mexican immigrant, one murder is much worse than the other. Thankfully, Congress is ready to help us broaden our current myopic understanding of what counts as a hate crime. From the Philadelphia Inquirer:

This month, Congress has an opportunity to deal with this challenge by adopting the Local Law Enforcement Hate Crimes Prevention Act.

A top priority of the Anti-Defamation League, this legislation would strengthen federal hate crimes laws by authorizing the Department of Justice to assist local authorities investigating and prosecuting certain bias-motivated crimes. The bill would also provide authority for the federal government to prosecute some bias-motivated crimes directed against individuals on the basis of their sexual orientation, gender identity, or disability. Current law does not provide sufficient authority for involvement in these cases.

The “mark up” of this piece of legislation actually happens this Wednesday (April 22nd) and will present to Congress, the Senate and President, legislation that explicitly includes speech against sexual orientation as a hate crime. According to one report, it includes all 30 (yes, there are 30!) sexual orientations recognized by the American Psychological Association. Ironically, many of the behaviors based on those orientations are currently against the law in most, if not all, states. Politicians have never let such ironies stop them before.

The ever clear-minded Huffington Post contained an opinion piece…wait for it…supporting it! The argument proffered is full of postmodern language about the maintenance of power structures and the evils of what children are taught in their homes about people who are different than them. And in case you thought that all people could be hateful, the article make it clear that, “Hate crime exists at one end on a continuum of privilege.”

It is incredibly convenient to support a piece of sweeping and horrific legislation like this one, and in one quick sentence exempt most people (including yourself) of the crime. Only “those guys” are guilty of hate, because we have simply defined hate as an attitude and act shown from the powerful to the disenfranchised.

Another inconvenient falsehood perpetrated by this kind of legislation is that things that are not crimes become crimes. Literally, it is not a crime to think something, and it is not a crime to say most things. The clear application sought by it supporters is that this kind of hate thought legislation will be applied to religious organizations and churches. It can become a crime to speak truths and beliefs taught by religion, thus making the State the arbiter of speech and acceptable belief.

Another crushing and obvious irony to all this is that hate crime and hate thought legislation is more often than not supported by those who espouse the virtue of “tolerance.” In reality, their agenda is the crushing of any thought and belief different than their own, and because they don’t have a leg to stand on in public debate and analysis, they force their views on everyone else through laws and the courts.


Brian B said...

Hey Phil! Do you happen to know where I could find information about the speech part of the hate crimes legislation that you mention? That's the part that worries and interests me - I'm curious to see how on earth they're going to be able to define a crime of "hate speech" in such a way that still permits non-criminal, but offensive, racist, sexist, "hateful" speech (of the sort that is currently permitted for, say, KKK members, or your typical sexist "old uncle" etc.) Like you, I worry about the anti-religious implications!

On the general notion of hate crimes, I've typically found my sympathies on the side of those wanting to stiffen penalties (ceteris paribus) for "hate crimes." I'm curious what your biggest objection(s) is/are to such legislation (say, for something uncontroversially detestable, like racism).

There are several common objections: for instance, (1) that hate crimes punish "motives" (or beliefs, attitudes, thoughts, etc.) rather than "actions" (or harms, consequences, etc.), and that (a) this is not something law should concern itself with, or (b) this is not something law does concern itself with; So, hate crimes criminalize the wrong sort of thing.

Or (2) that hate crimes punish people for motives (or for actions involving motives) that are not morally more serious (in the sense of deserving greater punishment, or of indicating greater danger) than any other motives that typically attend the same kind of crimes; So, hate crimes are "no worse" than crimes done for other motives.

or (3) that the specific "biases" that get listed in hate crimes legislation is somehow problematic (e.g. that the biases selected should be different).

Or of course, combinations of these and others. For me, I think the most plausible defense of hate crimes legislation (HCL) must rely on a denial of (2) - if the proponent agrees that the motives mentioned in HCL are no worse than any others (and justify HCL on other grounds), I don't think it has much going for it. But I do think (2) isn't very plausible: just like I think there are good reasons to regard, say, rape as worse than other assaults (even assaults than in some "physical" sense cause more harm), and to regard killing for a thrill as deserving of harsher penalties than killing someone "in the heat of passion" or in self-defense (though in all these cases the harm is the same), so I think there are good reasons to regard crimes done from certain of yet other motives (like racist or sexist or anti-religious ones) as worthy of greater penalties. They're worse, just like some killings are worse than others (though the harms are equivalent), and just like certain cases of causing financial ruin are worse than others, even if the harm is the same (e.g. fraud vs. a competitor's innovation). What's your take on these things?

Phil Steiger said...

Dude! Good to hear from you (and I still need to get to your email about the weather!).

Admittedly I didn’t read much of the legislation itself, but the consensus on both sides of the aisle was that this legislation including sexual orientation would make speech “leading to” crimes punishable along with the crime itself. Last fall a group of pastors from Canada and Australia came through town who, collectively, had spent weeks in jail and paid several thousand dollars in fines for preaching on the biblical view of homosexuality. The laws in those countries are one step further than ours right now, but a few years ago, were exactly where our legislation is. What could now be a legal implication of the law will (and I am convinced this is inevitably where this is headed) become legally explicit.

Although I am sympathetic to most of the objections you list, my primary objections are a little different. (And maybe they have evolved over time.) First of all, there is a unique genius to the legal dictum, “equal protection before the law.” This means crimes, of all gradations, are equally prosecuted under laws that take no account of “who” was the victim. For instance, the infamous Matthew Shepherd case was found to be a garden-variety robbing that went horribly wrong. The two murderers were put in jail for life. In Chicago a Catholic widow witnessed to her homosexual neighbor, he killed her and received life in prison. The legal objectivity of equal protection guarantees these outcomes no matter who the victim is, because the crime itself falls into the same kind of category in both instances.

Hate Crime and Hate Speech laws erode equal protection, and (to paraphrase a great literary moment) make some people more equal than others. I just do not see the justification for treating some victims as more important than others if the crime is the same.

And this raises my second basic objection. The decision as to who fits into hate crime and hate speech laws is utterly arbitrary. Ironically, those who support HCL tend to speak in terms of power and patriarchy (as in the Huffington Post piece), but are themselves the perpetrators of power. Who decides what is hate? Those in power. Who is in power? In our system of government, it is those who were most recently elected. Thus, instead of being an objective standard, like equal protection, it is an arbitrary standard that is subject to the next election cycle. Equal protection persists, HCL categories do not.

You mentioned something as obviously heinous as racism, and that raises what I think is a really important issue, and one that I need to phrase carefully! Racism is ethically abhorrent and a profound vice of the human soul. But, is racism a “crime”? As a belief, as a disposition toward others, racism is evil, but not prosecutable until a crime is committed. And if the crime is murder, why not prosecute to the fullest extent of the law, just as if racism was not involved? I think the distinction is a crucial one: a belief is not a crime, an action can be. When a legal system begins to move in the direction of criminalizing speech (maybe a significant bell-weather for belief?) we have headed down a completely different path.

Man alive, this is hairy.

I can see where an obviously inflammatory speech by a KKK leader saying that all “blacks and Jews” need to die would be prosecutable if crimes are committed as a direct result of the speech. But that is categorically different from a pastor preaching on the need for repentance and grace in the life of a sinner, even a homosexual.

Always fun to be pushed by you!

Phil Steiger said...
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