Hate Crime Laws, and the Difference Between Speech and Evidence

BillAs you may have heard, there’s a bill winding its way through Congress that would expand the current Federal hate crime law to include hate crimes committed over sexual orientation, transgender identity, gender, or disability. (The current law covers hate crimes committed because of race, color, religion, or national origin.)

PhoneI’m not just writing this to beg everyone reading this blog to write or call your Senators. (Although I’m doing that, too. Please, for the love of all that is beautiful in this world, write or call your Senators. This passed in the House, but it’s facing a fight in the Senate, and I’m hearing that the calls against the legislation are far outstripping the calls supporting it. It takes two minutes. Google your Senators’ names, find their official Websites with their phone numbers, and call them. Please do it.)

Hate_crimeBut that’s not the only point of this post. I’ve had a rant brewing for some time about hate crime laws, and now seems like the obvious time to do it. (Important disclaimer: I’m a smart observant person, but I’m not a legal expert. If any legal experts see any flaws in my understanding of the law, please point them out.)


God_hates_fagsThere’s a common misconception about hate crime laws — which is that they criminalize hateful speech or writing. They don’t. There is an enormous difference between hate speech laws or rules — such as the ones that exist on many college campuses (and which I do, in fact, vehemently oppose) — and hate crime laws.

Matthew_shepardHate crime laws don’t criminalize speech. What hate crime laws do is say that, if a crime is motivated by hatred or bias towards a group — a race, religion, nationality, gender, sexual orientation, etc. — then extra time should be added to the sentence.

In other words, they say that certain motives for crimes are worse than other motives, and deserve a more severe punishment.

And that’s a legal principle that is both extremely well-established and widely accepted.

Maltese_falconLook at the difference between first-degree murder, second-degree murder, manslaughter, justifiable homicide, etc. Our laws say that it’s worse to kill someone in cold blood for money than to kill someone in the heat of passion for anger; which is worse than killing someone recklessly and stupidly in an accident; which is worse than killing someone in self-defense. It’s a clear legal principle: different reasons for killing people deserve different degrees of punishment.

First_amendmentNow, some people argue that the problem with hate crime laws is that they are de facto laws against hateful speech — since hateful speech is typically what distinguishes between a hate crime and a regular crime. If you’re screaming, “Die, faggot,” when you’re beating someone up, that’s evidence that it’s a hate crime — and some people argue that this makes hate crime laws a violation of the First Amendment. (I’ve seen this argument made — unopposed — not just in political and punditry circles, but in otherwise generally intelligent and more or less progressive pop culture arenas, such as Law & Order, The West Wing, and South Park.)

But that’s just silly. There’s a huge difference between speech as speech, and speech as evidence of motive.

Double_indemnityAgain, let’s look at the difference between first-degree murder, second-degree murder, justifiable homicide, etc. If a person who’s killing someone is heard to say, “Ha ha, after months of careful planning, my scheme to kill you for your insurance money is finally coming to fruition,” you can bloody well believe that those words are going to be used as evidence of first-degree murder. Nobody on Earth is going to oppose that on First Amendment grounds.

Self_defense(And if the killer is heard to say, “You bastard, I can’t believe you’re having sex with my wife, I’m so angry I could kill you,” or “I can’t believe how drunk I am — whoops!”, or “Get your hands off me! Help!”, or “I’m sorry, but the ghost of Millard Fillmore spoke to me through the fillings in my teeth and told me to kill the first redhead I saw,” then that’s going to be used as evidence to support second-degree murder, or self-defense, or an insanity plea, or whatever.)

That’s what hate crime laws do. They don’t make hateful or bigoted words into a crime. They allow those words to be evidence of a particular motive for the crime.

LynchingAnd they do this to support the principle that hurting or killing someone because of bigotry and hatred is an exceptionally bad reason to hurt or kill someone. They say that this sort of crime harms not just the victim, but all of society. They say that our society is exceptionally appalled by crimes committed because of bigotry, and finds them even more intolerable than garden-variety crime.

Now, I’ll remind you here: We already have a federal hate crime law on the books, adressing crimes committed because of race, color, religion, or national origin.

LaramieSo to oppose this latest law is to say that hurting or killing someone because of any of those reasons is exceptionally badâŠ but killing someone because of gender, sexual orientation, transgender identity, or disability is nothing special. No big deal. When someone gets beaten up because they’re black or Jewish or Italian — that’s exceptionally serious. When someone gets beaten up because they’re queer, female, transgendered, or disabled — not so much.

That is some fucked-up shit.

Phone_2Please call your Senator, and ask them to vote yes on the hate crime law. Please do it now.


  1. Eclectic says

    Thank you for making me think. I’ve had a similar definition percolating through my own head: a hate crime is a crime against one person not for personal reasons, but because they are an exemplar of a hated group.
    But once I write that definition down, I realize that we’re on a slippery slope. How do I protest any abstract concept without picking an exemplar? There are many minor “civil disobedience” crimes associated with protestâtrespassing, obstruction of traffic, disturbing the peace, and so onâwhich I’m not sure deserve to have their punishments amplified because I had to pick a specific person, place or event as an exemplar of the principle I want to picket.
    To give an unsympathetic example, this is indeed what the Westboro Baptist (“God hates fags”) crowd does, but free speech is a very important principle, and just because I disagree violently with what they have to say doesn’t mean that I’m willing to sacrifice the principle that they should have the right to say it.
    Where is the line? Just for example, common assault charges are not unheard of at protests of all types. For members of the public there’s an obvious bright line between protesters for a cause and supporters of the cause in general, but I see danger in the other direction. Is getting into a scuffle at a Critical Mass demonstration a “hate crime” against car drivers?
    This is something of a devil’s advocate post, but I like to follow ideas to their conclusion and ensure that I judge others by the same standards by which I wish to be judged.

  2. Jon Berger says

    I’m inclined to share Eclectic’s skepticism, frankly.
    The official name for the concept Greta is talking about is “mens rea,” meaning “evil mind.” (“Mens” rhymes with “fence”; nothing to do with men, although believe me, there are plenty of jokes about “women’s rea” in first-year Crim Law classes.) In order to be guilty of a crime, you have to commit an evil act (“actus reus”) AND have the appropriate mental state, or mens rea. They’re two independent and co-equal elements; the government has to prove both of them beyond a reasonable doubt before it can punish you. And either or both of them can affect the severity of the punishment. As Greta correctly points out, we have all sorts of different degrees of homicide, ranging from manslaughter to first-degree murder, which differ only as to the mens rea; they can all have the same acti rei, but they’re all punished differently because of the different, umm, mental states. (I’m not even going to try to figure out what the Latin plural of “mens rea” is.)
    So Greta’s point, translated into Legalese, is that hate-crime laws just define new mental states, and that’s perfectly normal and right in line with the way crimes have been defined all the way back to Magna Carta or thereabouts. And I agree, as far as that goes.
    However, I don’t think you can just dismiss the First Amendment analysis out of hand. Certainly, the government can make laws that have the side effect of criminalizing expressive behavior. We do this all the time. To take just one example (from a famous case with the colorful name Ward v. Rock Against Racism), the government can have laws about how loud a rock concert can be, and can require the promoters of said concert to turn down the volume, even if the concert is broadcasting a political message about the evils of racism and even if turning down the volume means that less people will hear the message. These are generally called “time, place, or manner” restrictions (often abbreviated “TPM”): the government can restrict the time, place, or manner of someone’s expressive behavior without offending the First Amendment, as long as they don’t outlaw the behavior altogether.
    Except — and this is getting to Eclectic’s point — these TPM restrictions have to be content-neutral. That’s the underlying issue here, from a First Amendment perspective. What the government can NOT do is say, for example, “concerts which promote an end to racism can go to a maximum of 90 decibels, and concerts which promote joining the army can go to a maximum of 120 decibels.” Those are both TPM restrictions, certainly, but they’re content-based, and that’s a big problem.
    Back to hate crimes: I think there’s no question that hate crimes are, or can be, expressive behavior. They’re done to express an opinion, at least in many cases. It’s a hateful, creepy, and flat-out wrong opinion, and I certainly don’t like it, agree with it, or want to hear it, but the point of the First Amendment isn’t to protect anyone’s right to express their opinion that the weather is nice today. Opinions like that don’t NEED legal protection. So, again from a First Amendment perspective, a hate-crime law is effectively a TPM restriction on speech: it says that you can’t express your opinion by, for example, killing someone. So far so good. But what’s disturbing a lot of people is that the hate-crime laws are content-based TPM restrictions, just like in the “racism/army” hypothetical. If I kill someone because I hate him because he’s gay, I get 20 years; if I kill him because I hate him because he consistently writes “discrete” when he means “discreet,” I get 15.
    Greta, you’re absolutely right about the speech/evidence dichotomy. It’s not the speech per se, it’s the mental state, and the speech is just evidence of the mental state. But when the First Amendment says “speech,” that doesn’t just mean literally talking; it’s been interpreted to mean (and it pretty clearly was actually intended to mean) any form of expressive behavior. And the problem with hate-crime laws is that they really are saying that you get punished more severely if your crime was intended to express certain viewpoints. People who engage in civil disobedience are effectively saying “I care so much about sending this message that I’m willing to suffer the criminal consequences,” and hate crimes really are (or can be) a form of civil disobedience. Hate-crime laws say “we hate your message so much that we’re going to increase the criminal consequences when your criminal behavior is intended to send it.” And that really is a problem, under that pesky First Amendment.
    Now, it’s not necessarily an insuperable one. (Warning, hideous thicket of Con Law jargon ahead.) Content-based restrictions on speech aren’t flat-out unconstitutional; if the restriction is content-based, that just means that the courts are supposed to apply “strict scrutiny,” as opposed to the more lenient “rational-basis scrutiny,” in deciding whether the law in question offends the First Amendment. “Strict scrutiny” means that the law is presumed to be invalid, but the presumption can be overcome if the government proves that the law serves some legitimate and overwhelmingly important government interest. “Rational basis scrutiny” means that the law is presumed to be valid, and will be overturned if the person who opposes it can prove that the government had no rational basis for passing it. A content-neutral TPM restriction on speech is subjected to rational basis scrutiny, so it’s likely to pass muster; a content-based restriction is subjected to strict scrutiny. So it’s LIKELY to be unconstitutional, but not necessarily. It’s certainly conceivable that a court could decide that the elimination of criminal harassment against certain groups is a sufficiently compelling government interest to qualify under strict scrutiny.
    So in answer to Eclectic’s question, that’s the distinction, maybe, between hate-crime laws and laws providing enhanced punishment for Critical Mass protesters: the degree of importance of the government’s interest. I don’t know how comforting that is, but that’s how courts evaluate this stuff. For what it’s worth, very, very few restrictions on expressive behavior survive a strict-scrutiny challenge.

  3. Eclectic says

    Just for fun, let me add a completely separate justification for greater penalties for hate crimes that doesn’t involve any moral judgements at all. I think it informs the question of what should be considered a hate crime.
    Basically, for a law be a reasonable deterrent, the expected cost of a violation must exceed the expected gain. Now, that “expected” is a matter of perception and there are complex psychological effects, particularly when dealing with people who don’t plan ahead so have a very high future penalty discount rate, but let’s approximate it as (chance of getting caught) x (penalty if caught).
    Now, if I beat you up, there’s probably a reason. Police find lawbreakers by looking for people with the means, motive, and opportunity. For personal assaults in particular, it’s usually an acquaintance, so finding the person is no challenge at all. The victim can identify them quite easily.
    Thus, common assault doesn’t need (and, if you look at most legal codes, doesn’t have) a very high penalty to make the (chance of getting caught) x (penalty if caught) product reasonably high.
    But now suppose I and my buddies are out looking for some queers to bash. All of a sudden it’s very random. There’s no association between the aggressor(s) and victim, usually no stolen property to trace… if the attackers were smart enough not to get caught on camera or something, it’s pretty much a dead end.
    If this is the characteristic of hate crimes that deserves special punishment, then it also suggests many situations that don’t deserve heightened punishment.
    (I should mention that I don’t particularly agree with the simplistic model of the “cost” of violating a law, but that’s a whole separate discussion. This entire proposal is based on the not-unreasonable proposition that higher penalties deter more, so I’ll take it for granted when discussing it.)

  4. stephen gottlieb says

    I am forced to wonder to myself if hate crime laws make a great deal of sense. perhaps it is the name. If I go out and deliberately, with malice and forethought, mangle someone, destroy their property, or kill them, of course I hate them. I just don’t have the hours in the day to spend on something I don’t feel strongly about. here in the lovely country of Texas, we have a hard time caring if you commit a crime because you are a bigot, or just an asshole. if you stop and think about killing someone, plan it out, get armed and kill them, WHO GIVES A SHIT WHY? The legal arguement that this person needed to die to secure your safety is basically impossible to make. You thougt out and committed a crime against another human being. If I go out and beat up on gays with my drunk, beerass buddies, I should suffer the same punishment that somebody who gets drunk and beats up on random people does. why I decide who to beat up, or rob, or set on fire, or drag behind a pick up truck, should be a non arguement. Committing a “hate crime” just proves you to be a pea brained, bigoted asshole. Just because you act on narrow minded, racist, sexist, or any other “ist” values, doesn’t seem to make you a special breed of criminal, just a nimrod. While committing a hate crime can make it easier for the prosecution to prove motive, why you chose to commit violence should end at the circumstances of the crime.

  5. Tefnut says

    But you’re hating that one person, and acting to hurt that one person. When you commit a hate crime, you’re acting in a way that terrorizes an entire group, and often acts to “keep it in its place.”

  6. says

    But obviously, not all actions are protected forms of expression. I mean, if I knock over a jewelry store, I’m not going to escape a burglarly conviction by claiming that I did it as a form of protest against abuses in the diamond mining industry. Even if that were true. Even if I had a long history of activism and protest against the diamond industry. Knocking over a jewelry store presumably doesn’t count as a form of political or artistic expression, in the way that, say, a rock concert does.
    So my question is this: Why is it a problem to say that, for instance, racial hatred is a worse motive for committing a bad action, if the action itself isn’t a legitimate form of protected free expression in the first place?
    I’m curious now: I’m guessing that the current hate crime laws (federal and state) have gone to the Supreme Court over exactly this question. Assuming that’s true, what was the basis for upholding them?
    Oh, a couple quick replies to other folks in this thread. Eclectic, re your earlier comment: I’m not positive about this (and someone please correct me if I’m wrong), but my understanding is that hate crime laws don’t apply to minor crimes. If you run a red light to scream, “Hey, faggot!” at someone (or if one of Fred Phelps’s batshit funeral protests blocks traffic), that doesn’t count as a hate crime. I believe it only applies to very serious crimes: assault, murder, arson, that sort of thing. So minor crimes that might be committed in a legitimate protest wouldn’t count. (I don’t think. If I’m wrong about that, I may have to modify my position on this.)
    And I think Tefnut makes an extremely good point — one that speaks to Jon’s “What is the compelling interest?” question. Hate crimes aren’t about hating your boss or your ex or the asshole across the street who plays his music too loudly. They’re about hating people because of their race, religion, nationality, etc (groups that are specifically spelled out in the different state and federal statutes).

  7. Nurse Ingrid says

    I am usually not one for favoring laws due to their symbolic value (I hate, for example, when people argue against sex or drug education programs that aren’t abstinence based, because they “send the wrong message.” We’re dealing with reality here, not what we WISH were the case.)
    But I think hate crimes are a compelling example of a situation where the law CAN send a message, which is that we as a society think these crimes are especially heinous. And we do, don’t we? For the reason that Greta and Tefnut mentioned — they serve to terrorize entire groups or classes of people. The example that comes to my mind is crimes against transgendered people: almost certainly the group in the U.S. that is at the greatest risk of violent death (percentagewise). These crimes are disproportionately brutal, with many stab wounds, sexual assault, beatings, mutilations, you name it. Think of Brandon Teena or Gwen Araujo, or the woman whose body was just found on the 101 freeway near my house. Until recently, perpetrators of these crimes could hide behind “gay panic” defenses, but hate crime laws are a way to prevent that. So I’m all for it.

  8. Eclectic says

    The point is not that crimes should be _excused_ for first amendment reasons, but that it’s dangerous to enhance the penalty because someone was doing it to express a (loathsome or not) social/political opinion. Would it be fair to give you _more_ jail time for knocking over the jewelry store as a protest than you’d get if you just did it for the money?
    This is also somewhat content-sensitive, but gives a clear compelling interest for an enhanced penalty. A guy who’d beat up a person just for being the wrong color in the wrong place is more dangerous than someone who needs a more particular justification.
    Buried in there is one word that I think is important: “just”. If I get into a fight with someone because they cut me off, AND they flipped me the bird, AND they’re a member of a group I don’t like much in the first place, is that a hate crime?
    What I find particularly repugnant, and worthy of particular punishment, is folks who go looking for a victim solely on the grounds that they’re a member of some group and happen to be available/vulnerable.
    There’s the line I want to draw. But I also want to study whether such logic already exists and is implemented. I don’t think Matthew Sheppard’s killers were treated too leniently, but what matters is the pattern followed in lesser cases, not a single high-profile one.
    I’m not saying that a hate crime law is a bad thing, but it’s treacherous waters, and I want to be very careful.
    (Then there’s a whole other avenue of discussion about whether enhancing the penalty is the best way to accomplish something. I’d rather that the police treated it more seriously and caught the perpetrator more often; that’s a much more effective deterrent than a one in a million chance of being hanged, drawn and quartered.)

  9. timncguy says

    Gee, and here I thought the whole argument from the anti-gay crowd was that preachers, for example, would be arrested for their “speech” in church when they preach against homosexuality.
    And, this of course is not true… UNLESS they include something in their sermon that “incites” someone who hears them to violence.

  10. says

    Something I wrote a while ago:
    Hate speech may also be incorporated into hate crime legislation.
    Now that we’ve clarified what hate crime legislation is, let’s talk about whether it is valid. The point has been made earlier that such legislation criminalises thought. The same attack can receive a tougher sentence if the court perceives it to be motivated by hate. That’s very odd, isn’t it?
    Yes, but there is another side to this argument. Picture yourself as a member of a despised minority: a minority by skin colour, sexual orientation, religion, … whatever. Now, because your group is small and widely looked down on, you tend to form a close-knit cohesive bunch, and you follow with interest news and gossip about other members of your minority, even if you don’t know them personally.
    So, a member of your minority living not far from you, but whom you don’t know personally, is viciously attacked only for being a member of that minority. The attack is motivated purely by hatred of that minority. The specific victim was merely representative. It might just as well have been one of your friends. It might just as well have been you.
    How do you feel?

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