Free Markets, Free People

hate crime


Observations: The QandO Podcast for 18 Mar 12

This week, Michael, and Dale talk about the Dharun Ravi conviction and President Obama.

The direct link to the podcast can be found here.

Observations

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Hate Crime Bill To Pass In Defense Authorization?

Stuffed in the National Defense Authorization Act is something which has absolutely nothing to do with defense, but is a law that “progressives” have desired to have on the books for a long time.  Named the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, its purpose is to make crimes against certain groups punishable by harsher sentencing if it is determined the crime was driven by “hate”.

Since the votes weren’t present in the Senate on a stand-alone basis, Senate Democrats have attached it to the defense authorization bill as an amendment.

The crime bill — which would broaden the protected classes for hate crimes to include sexual orientation and “gender identity,” which the bill defines as a victim’s “actual or perceived gender-related characteristics” — passed the House earlier this year as a stand-alone measure.

Republicans object to the law on First Amendment grounds:

Beyond that, GOP lawmakers feared the new bill could infringe on First Amendment rights in the name of preventing broadly defined hate crimes. The bill’s critics, including many civil libertarians, argued that the hate crimes provision could chill freedom of speech by empowering federal authorities to accuse people of inciting hate crimes, even if the speech in question was not specifically related to a crime.

My objection, as usual, is that the GOP has accepted the premise of “hate crime laws” as being legitmate and are only arguing about the final form. The crime of murder, in terms of a result for the victim, isn’t any worse if it was driven by hate or not. In fact, it could be argued that murder, for any reason, is essentially a hate crime.

The reason for the crime is hardly the most relevant point. The result is what we can concretely and objectively judge and punish. The job of law enforcement is to ensure that a murderer is brought to justice by connecting him or her irrefutably to the crime. Other than that, I see little relevance in whether it was done because the person didn’t like gays or because the person wanted to get rid of their spouse. Murder is murder.

Another thing that bothers me is the title – The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. This isn’t about just punishing what is deemed a hate crime, by whatever arbitrary definition they choose to define a hate crime, but instead “preventing” those crimes.

That means, as the GOP points out, monitoring and doing something about what is deemed “hate speech” because the only way to “prevent” a “hate crime” is to prevent (or stop) the speech which government decides might incite people to take action. No speech, no incitement. No incitement, no crime.

Now, it is important to note that we already have an exception to the 1st Amendment’s ban on punishing speech and that’s the “fighting words” exception.  It essentially says words can incite undesirable and even criminal action and those words aren’t protected speech. What is being proposed here is an expansion of the meaning of “fighting words” to include words that Congress decides incites “hate” and then criminal behavior (thus the term “hate crime”).

Unfortunately the bill looks like it will be signed into law. The question, of course, is how broad the final bill will be and how badly it attacks our First Amendment rights.

Republican Sam Brownback offered an amendment to the Senate version which said the bill could not “construed or applied in a manner that infringes on any rights under the First Amendment” and could not place any burden on the exercise of First Amendment rights “if such exercise of religion, speech, expression, or association was not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another.”

With that amendment, GOP Senators supported the final bill. However when the bill went to the conference committee, key changes were made to the Brownback amendment by the Democrat controlled committee:

Where Brownback had insisted, and the full Senate had agreed, that the bill could not burden the exercise of First Amendment rights, the conference changed the wording to read that the bill could not burden the exercise of First Amendment rights “unless the government demonstrates … a compelling governmental interest” to do otherwise.

That means your First Amendment rights are protected — unless they’re not.

“A compelling governmental interest” leaves the door wide open for your free speech rights to be trampled on the government’s whim. Where the First Amendment was designed as a limit on government power (as was the entire Constitution), this law is a blatant attack on those limits and an attempt to expand government power. Additionally, instead of an objective standard by which to judge a crime, this attempts to identify and punish thought.

In terms of our civil liberties it is an incredibly dangerous and precedent setting move that will enable government – as long as it can “demonstrate a “compelling … interest” (which it will define) – to restrict or punish speech it chooses to categorize as “hate speech”.

Obama has said he’ll sign the bill when ready. With Obama’s recent LBGT troubles, this is a bone he can throw their way.

“I will sign it into law,” the president told a cheering crowd at the gay activist group Human Rights Campaign on Saturday. “Together we will have moved closer to that day when no one has to be afraid to be gay in America.”

The GOP finds itself in a no-win position. They can vote against the hate crimes part of the bill and be accused by Democrats of not supporting the troops, or they can vote for the Defense Authorization Act and the hate crimes portion becomes law.

I think we all know they’ll vote to authorize the defense spending. And with that vote, America will become a little less free as Democrats continue on pace to erode our liberties while they have the chance.

~McQ