Why We Need to Tolerate Hate

Penalizing someone because of his or her bad thoughts is quintessentially un-American.

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Navesh Chitrakar/Reuters

Decorate your house with anti-Semitic slogans or your clothing with swastikas and you engage in protected speech. Paper your neighbor's car with anti-Semitic bumper stickers and you're guilty of vandalism. Hate speech is constitutionally protected (as the Supreme Court confirmed most recently in Snyder v. Phelps). Destruction or defacement of someone else's property is legally prohibited.

Advocates of censoring "hate speech" might say that we value property more than the elimination of bigotry. I'd say that we value speech, as well as property, more than inoffensiveness. Besides, protections of presumptively hateful speech are not absolute: A prohibited act, like assault or vandalism, accompanied by vicious expressions of bigotry, may constitute a hate crime under law.

Consider this recent incident at Wheaton College: Anti-Semitic graffiti was scrawled across the back door of the Jewish Life House, where four students reside. The student who discovered it, Molly Tobin, described herself as "shocked, angry, and terrified," according to the Boston Globe. But students and faculty members have "come together" in support of diversity, with a potluck and a Facebook campaign. Campus police are investigating the incident, and the school is offering a $1,000 reward for information about it.

Could the vandals in this case be prosecuted for a hate crime? Perhaps. Massachusetts law provides that assaulting someone or damaging her property with "intent to intimidate" on the basis of race, color, or religion, among other characteristics, is punishable by a $5,000 fine and/or a maximum 2 1/2 year prison sentence. Whether or not the graffiti on the door of the Jewish Life House was intentionally intimidating is a question of fact; but you can guess how it might be resolved.

Should the vandals in this case be prosecuted for a hate crime? Fierce free speech advocates, like my friend and colleague Harvey Silverglate, condemn hate crime laws for practically creating thought crimes: "It is foolish and dangerous for the legal system to punish a malefactor on the basis of whatever ideological or personal views or hatreds might, or might not, motivate crimes against person or property," Silverglate says. "The slope from punishing acts to punishing thoughts is very slippery indeed."

I tend to agree. Hate crime laws are generally sentence enhancement laws, imposing harsher sentences on crimes motivated by bias. They ensure that assaulting someone you hate because of his personality quirks is a lesser crime than assaulting someone you hate because he belongs to a particular, protected demographic group. In other words, when you're prosecuted for a bias crime, you're prosecuted for your bad thought and beliefs as well as your conduct.

Once convicted of a hate crime, you may even be subject to mandatory thought reform: In Massachusetts, you're required to complete a state sponsored and designed "diversity awareness program" before being released from prison or completing probation. Deface someone's property for the wrong reasons -- bigotry or a bad attitude toward a protected group -- and your thoughts become the business of the state.

This seems quintessentially un-American, if freedom of speech and belief are quintessential American values. But individual freedom is sometimes valued less, especially on campus, than diversity and the psychic as well as physical security of presumptively disadvantaged groups. FIRE President Greg Lukianoff reports on the lamentable consequences of this values shift in his important new book, Unlearning Liberty. "On college campuses today, students are punished for everything from mild satire, to writing politically incorrect short stories, to having the wrong opinion on virtually every hot button issue," he reports, in disturbing detail.

When "mild satire" and arguably offensive jokes are deemed too dangerous or disruptive to tolerate, it's not surprising that anti-Semitic graffiti is "terrifying" and virtually incomprehensible. At Wheaton, Molly Tobin says she remains afraid to walk around the campus at night and describes her reaction to finding the graffiti on her door as "an out of body experience." While appreciative of the strong support offered by Wheaton faculty and students, she considers it "pretty tragic that something on this level has to happen for the campus to respond like this."

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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