The Thought Police

Hate crime laws are inherently unjust

By Kevin M. Neylan

October 12, 2008 marked the tenth anniversary of the murder of Matthew Shepard, a twenty-one-year-old gay college student, near the town of Laramie, Wyoming. Shepard’s murderers were motivated principally by his homosexuality. That motive transformed an already heinous act into an even more deplorable hate crime. According to the FBI, hate crimes are “crimes of hatred and prejudice—from lynchings to cross burnings to vandalism of synagogues.” 

In May 2007, the House and the Senate passed the Matthew Shepard Act, which would have expanded punishable motives under federal hate crime laws to include sexual orientation and gender identity. However, the bill did not become law because President Bush threatened to veto it. Senator Obama pledged his support for the bill, while Senator McCain opposed it.

These past weeks have seen renewed support for expanding federal hate crime laws to include mandatory increased penalties for hate crimes committed against homosexuals. Currently, the law applies only to victims who are attacked because of their race, religion, color, or national origin. Forty-five states and the District of Columbia have equivalent statutes; thirty-two of them cover sexual orientation and disability; twenty-eight cover gender; thirteen cover age; and five even cover political affiliation.

Hate crimes, like most crimes, are despicable. Their conduct injures their immediate victims, and the ideas that motivate them harm whole communities. It is not difficult to imagine why one might want to punish hate crimes more severely than similar crimes which are not motivated by hostility to the victim as a member of a group. Be that as it may, hate crime legislation is unjust. 

First, it is important to realize that data and statistics regarding hate crimes are significantly flawed and suggest highly uneven implementation. Data reported by law enforcement agencies to the federal government under the Hate Crimes Statistics Act suffers from dramatic underreporting in some states. For instance, Alabama reported zero hate crimes in the same year California reported several thousand, and Hawaii has never reported one, according to a 2006 study by Mike S. Adams and Reid C. Toth.

Moreover, the reporting of hate crimes will likely increase as the problem is better understood, with the increased numbers measuring less the actual prevalence of hate crimes than our awareness of the problem. But if there were any deterrent effect, we would expect to see some difference between states in the number of hate crimes reported based on the severity of their statutes. That has not been the case, according to a 2004 report by Susan Gellman and Frederick Lawrence.

But hate crime enhancements are also intrinsically objectionable on several grounds. Enhancements erode the fundamental freedoms of thought and association guaranteed under the First Amendment. Hate crime laws grant government undue power by essentially creating thought crimes. However well intentioned, hate crime legislation ought to be struck down.

The proposed enhancements are inextricably linked to the admittedly abhorrent thoughts that motivate crime. This is obvious enough, as the statutes establish one penalty for the underlying crime—assault or vandalism, for instance—and another penalty for the defendant’s bigotry that motivated the offense. In short, they punish defendants once for what they have done, and once for having subscribed to a government-disapproved creed.

Proponents of hate crime enhancements invariably point to a distinction between a criminal’s conduct and his motive. It is his conduct that is being punished, not his motive, they claim. Because hate crimes cause greater societal disruption than parallel crimes, an enhanced penalty is justified, for the same reasons armed robbery is punished more severely than unarmed robbery due to the increased harms resulting from the use of a weapon. This analogy is specious; the additional harms of hate crimes are attributable only to the ideas that motivated and were subsequently expressed in the crime.

Moreover, it is essential to remember that without hate crime legislation the conduct of a hate criminal is already punished. Matthew Shepard’s killers were convicted of murder and sentenced to life in prison. Someone who vandalizes a synagogue or assaults a Jehovah’s Witness would be arrested and imprisoned for inflicting property damage or for assault and battery. The only difference is that, in the absence of hate crime legislation, homophobia is not punished; neither is anti-Semitism, nor hatred of Jehovah’s Witnesses.

Sentiments like homophobia or anti-Semitism are indeed harmful. However, the increased harms caused by hate crimes, insofar as they inhere in the criminal’s bigoted motive, are irrelevant to the administration of justice. As Justice Brennan famously wrote in the Supreme Court’s majority opinion in Texas vs. Johnson, which granted constitutional protection to flag burning, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” 

The Supreme Court has repeatedly affirmed that the government cannot punish thinking, believing, or even hating. Bigoted ideas have always been protected, unlike fighting words and obscenity, for the same reasons the government could not punish anti-American or blasphemous speech. In the words of Justice Oliver Wendell Holmes, “The best test of truth is the power of thought to get itself accepted in the competition of the market… That at any rate is the theory of our Constitution.”

It is quite clear that constitutionally-protected racist speech on its own is extremely hurtful to individuals and communities, even when it is not accompanied by physical action. It is not difficult to imagine the emotional harm and degradation an African American or a Jew would suffer upon seeing someone reading Mein Kampf or a Ku Klux Klan newsletter. However, the government cannot ban reading or writing hateful messages, despite the obvious harm these ideas and their expression cause communities. In 1978, U.S. courts allowed a group of Nazis to parade through the streets of Skokie, Illinois, even though Skokie was home to many Holocaust survivors. If the expression of Nazi ideology that motivated the Skokie demonstration was protected on its own, the government does not mysteriously gain the authority to punish it when it accompanies actual criminal conduct.

If what is at stake here is the individual liberty enshrined in Holmes’s marketplace of ideas, an opponent may object on the grounds that bigoted ideas contribute nothing meaningful to the marketplace. They fall outside the pale of acceptable thought and therefore deserve no protection. Such an argument, whether true or not, entirely misses the point of the liberty guaranteed by the marketplace. As Justice Jackson famously declared in the opinion of the Court in West Virginia vs. Barnette: “If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

No legislature has the authority to punish political expression simply on the grounds that certain ideas are an affront to human dignity or offend public morals. Freedoms of expression, of the press, and of assembly all secure for individuals the near-limitless right to spew whatever obnoxious doctrines they choose. As far as I can reason, the right to burn the American flag and the right to join the Ku Klux Klan are both grounded in these basic freedoms from imposed public morality or political orthodoxy. Because hate crime enhancements take direct aim at specific thoughts and ideas, they have no place in our system of government.