In her article "Hate crime laws don't infringe on the First Amendment" (St Petersburg (FL) Times, 27 Mar 93: 18A), ACLU president Nadine Strossen correctly argues against Nat Hentoff's contention that laws against so- called hate crimes violate the free-speech protections of the First Amendment. The point which Ms Strossen makes is that terms of denigration uttered during the commission of a crime may show motive, and motive has long been recognized as a basis upon which to judge the seriousness of the crime, as is demonstrated by the difference between premeditated murder and manslaughter (accidental killing); and thus penalties for hate crimes are not penalties against speech, but penalties against motive. But while Ms Strossen is correct in this narrow respect, she misses a much larger point which I believe was implicit in Hentoff's argument, namely, that laws against hate crimes are really laws against thought crimes. To understand what is at issue here, consider the difference between murder and manslaughter: In both cases society penalizes an act -- human killing -- but the penalty for manslaughter is lighter since it is deemed to be an act of carelessness or neglect, rather than something done deliberately, as is murder. Or to put it another way, murder is penalized more severely because it is under voluntary control, whereas manslaughter is penalized less severely because we reckon it to be either involuntary or else to have only a small component of volition, namely, the volition involved in being careful and alert. This comparison is in stark contrast to the difference between an ordinary crime and a hate crime, however; for both these acts are voluntary. The point may perhaps be expressed more clearly by comparing two cases of robbery, the primary motive of the first being money, and the primary motive of the second being racial hatred. What we want to ask is, Why should the second robbery be penalized more than the first?, ie, Why should one bad motive (racial hatred) be penalized more than another (greed)? Indeed, there are some people -- black politician Jesse Jackson, for example, or Nation of Islam leader Louis Farrakhan -- who evidently believe that racial hatred is good; so if you agree with such people, then why penalize the act at all? Indeed, such an ancient moral tableau as the Ten Commandments forbids greed (Thou shall not steal; thou shalt not covet) but is lacking any command to love those of another race, or even to love one's neighbor.
What we have said so far is that it is reasonable to penalize a crime that has a bad motive, and it is for this reason that we penalize murder -- which has a bad motive -- more heavily than manslaughter, which has no motive at all. But it is not reasonable to penalize an act with a bad motive more heavily than the same act with a different bad motive, just because the first is a racial motive and the second is a financial one; and yet this is precisely what is done by hate crime laws. Or to put it another way, hate crime laws not only punish criminal acts, but in addition they punish thought crimes, and it is this, I believe, to which Hentoff is objecting.
But there is a deeper objection to hate crime laws which neither Strossen nor Hentoff addresses, namely, that such laws are highly discriminatory. To be specific, such laws favor certain classes of people over other classes, ie, they favor blacks, Indians, Asians, Jews, homosexuals, women and sometimes others, but omit all sorts of other classes who are continually discriminated against -- the old, the fat, the short, the poor, the homeless, the stupid, the incompetent, the odoriferous, criminals, drunkards, atheists, nose-pickers, lawyers, usurers, politicians, communists, Nazis, gun-owners, and an almost infinite number of other classes. Or in short, if you seek to "prevent discrimination" by protecting certain classes, then of necessity you are discriminating in your "non-discrimination" by protecting some groups and not others -- hardly a case of equal protection of the laws.
The bottom line is this: We all discriminate. We discriminate against what we think is bad and in favor of what we think is good. And it is high time the government stop telling us what sort of discrimination we should practice.
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