Do Hate Crime Laws Threaten Free Speech?

A new law spurs debate about 'thought crime'

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On Thursday, the Senate approved a sweeping hate crimes bill containing new federal penalties for assaults against gays and lesbians. Prominent gay rights activists have hailed the bill as "Our nation's first major piece of civil rights legislation for lesbian, gay, bisexual and transgender people." But conservatives believe the bill threatens freedom of speech—particularly for religious leaders whose faith drives them to speak out against homosexuality. They have also spurred debate by attacking the bill for allegedly prosecuting 'thought crime.'

On Free Speech

  • Not a Threat, says Charles Haynes at North County Gazette: "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."
  • Very Troubling, says Ken Klukowski at Fox News: "Religious Americans and conservatives should derive little comfort from these vacuous assurances. Liberal judges have transformed 'speech' into anything involving 'expressive conduct.' The Court reasoned that since the targeting of a specific individual is not speaking, it is not protected by the First Amendment...It’s bad public policy to try to take specific views or beliefs and make them part of a crime."

On 'Thought Crime'

  • We're In Dangerous Territory, writes Pam Meister at Big Hollywood: "When we begin to prosecute for the thoughts behind the crime, we open a very wiggly can of worms that can’t be shut again. Who’s to say this won’t become a weapon in and of itself? Imagine: you are accused of assaulting a man. It happens during a bar brawl or a botched robbery attempt. The man is gay, and he says he was targeted for that very reason. You know it’s untrue – he just happened to be in the right place at the right time for your scheme – but how do you prove otherwise? Suddenly a crime that might have gotten you (hypothetically) two to five in the hoosegow becomes one that gets you (hypothetically) ten to fifteen, thanks to its heightened status.  The prosecutors are suddenly psychological experts who can read your mind, right?"

  • Get Real, writes John Holbo at Crooked Timber: "Practically all crime is ‘thought crime’ in the good ol’ common law sense of the Latin phrase actus non facit reum nisi mens sit rea – ‘the act does not make guilt unless the mind be guilty.’ If we were to take a strict liability approach to all violent crime we would be obliged to place wrongful death on a par with premeditated murder. (After all, it’s not as though the lives of those killed accidentally are worth less.) This refutes the notion that there is something sinister and Orwellian about post-Drakonic/post-Hammurabian developments in criminal law. (Damn liberals and their newfangled political correctness!)"
This article is from the archive of our partner The Wire.