By: Brian Sikma, January, 2007.
Hate crimes are defined as those crimes that are committed against a person or group of people simply because of the victim’s ethnic, racial, religious, or sexual orientation background. Laws that specifically target hate crimes differ from other criminal statutes in that they usually impose heavier than normal penalties on the perpetrators of the hate crime. It is argued that hate crimes have a greater negative impact on victims and communities than other crimes and for that reason they should carry greater penalties.
In passing hate crimes legislation and in creating hate crimes categories governments seek to determine the criminal’s motives for committing the crime. Once these motives have supposedly been determined a greater punishment is imposed not because of the actual and real content of the crime, but because of who the crime is committed against. This stands in stark contrast to the traditional role of the law and government in dealing with criminal matters. Traditionally an act is outlawed and made a crime because it is evil. It does not matter who the crime is committed by or who it is committed against. A just and proportional penalty is exacted because the act is wrong and harmful to an individual and a threat to society as a whole.
Governments are instituted by men for the purpose of safeguarding their lives and possessions. “Why,” asked Alexander Hamilton, “has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.” John Locke correctly reasoned that “Men….join and unite into a community for their comfortable, safe, and peaceable living one amongst another in a secure enjoyment of their properties and a greater security against any that are not of it.”
In securing the common good governments can only judge the actions of individuals, and not their motives. Locke, Hamilton and our founding fathers spoke nothing about the government judging motives. As human beings we cannot judge the motives of one another. A person can be engaged in a criminal act but I am powerless to determine whether or not that individual is doing so out of a desire to do evil or whether he is doing what he thinks is good.
The human mind can find it hard to do those things that it believes to be wrong. If one desires to commit evil acts they usually find a way to rationalize why they are right. Rarely does one hear of a criminal admitting that whatever they have done is wrong and that they should pay the price for their crime. While there are no doubt cases where an individual does wrong because they have a sheer desire to do so, it is very hard to discern who commits a crime out of a “good”, in their minds, motive or who commits a crime out of an evil motive.
This inability to judge motives does not mean that governments cannot punish evildoers. This is the point at which it is necessary to realize that there must be a higher power from which we get our values of what is good and what is evil. There must be an overarching objective standard that exists in an absolute state regardless of the varying opinions and motives of governments and individuals. It is to this standard that we must turn when seeking to ascertain the innocence or guilt of a person. In the United States and Western culture that higher power and objective standard is God and the values come from the Judeo-Christian belief system. Only when a government realizes the existence of a higher law and therefore a knowable standard of right and wrong, can it make judgments about the actions of its citizens.
It should be added here that centuries of human experience have shown that the Judeo-Christian system of morality is the single greatest belief system ever followed. Not only is it fair in its judgments but it is also tolerant of other beliefs provided those beliefs do not conflict with the liberty of others to lead peaceable lives.
Under no circumstances can a government or individual hold another individual accountable for motives. In 1802 President Thomas Jefferson wrote that “the legislative powers of government extend to actions only, and not opinions….” Actions alone can be judged and actions alone can be punished.
Another failing of hate crime legislation is its effect to deny equal justice to all. Imposing greater penalties for crimes committed against a minority results in two things. 1) The minority is offered special protections because the law is greatly biased against those that harm them. 2) The majority is left in the position of having less legal protection because a crime committed against them is punished only because it is a crime and it is assumed that it was not committed out of hatred.
In offering greater protections for minorities a government engages in reverse discrimination. It places a greater value on those that make up the minority instead of offering equal protection to all who are innocent and imposing equal justice on all who are guilty. This is in conflict with the ideals of our American heritage. It is almost humorous to see those that argue for hate crimes legislation from the standpoint that it will reduce discrimination only shift the discrimination away from one group and on to the backs of another. In categorically denouncing discrimination and zealously pursuing its abolition these individuals become proponents of what they denounce.
In our country there is no room for discrimination in the penalization of crime. Crime must be punished equally no matter who committed it or who it was committed against. For the law to favor one group over another in the administration of justice would be an injustice to those who abide by the law.
A specific form of hate crimes laws have cropped up in Europe, notably in Scandinavian countries and have also been enacted in Canada and Australia. These are laws against so called “hate speech”. Hate speech is defined as speech that consists of hatred or arouses hatred against a person our group because of their race, religion, or sexual orientation. This latter type of law is unique among hate crimes law because it seeks to punish not what is in itself a crime, but what is hypothesized to lead to a hate crime.
When certain forms of speech are classified as hateful several problems come to light. One problem is the same as one of the problems with hate crimes laws in general: it is assumed that there is a motive of hate behind the speech, something that we cannot really know, much less punish.
Another assumption is that when one speaks out against a particular minority group they are encouraging others to commit harmful actions against that minority. This view seems to be especially prevalent when the minority in question is religious or sexual in nature. A prohibition on speaking against another individual’s religion or lifestyle is not the same as a prohibition on speech that incites others to harmful actions against a particular group. It would be in order to point out that if the government is going to punish speech that may in some vague way lead to criminal action, it may as well insert itself further into the lives of citizens by punishing other phantom dangers and mirage threats by dictating what is and what is a not an acceptable thought.
When a law is imposed against hate speech it is a violation of the First Amendment’s Free Speech Clause. Eugene Volokh, writing in The Heritage Guide to the Constitution, speaks of the First Amendment’s Free Speech clause saying: “The free speech/press guarantee extends to all viewpoints, good or evil. There is no exception, for instance…for…”hate speech,” whatever that rather vague term may mean.” He continues by quoting the U.S. Supreme Court in the case of Gertz v. Robert Welch, Inc. (1974): “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”* (Emphasis mine.)
When a broadly defined term is legislated without a clear interpretation it is up to the judiciary to define what exactly the legislators meant when they used that particular expression. This obviously opens up the way for the courts to either intentionally or unintentionally misconstrue the term. As Volokh argues, the term “hate speech” is rather vague. It offers no substantive rule by which we can measure whether or not a particular speech is hateful or offensive.**
The debate about hate speech is further clouded by the politically and socially charged atmosphere that surrounds it. In today’s world, tolerance is urged upon us as the highest virtue and no publicly minded citizen or career minded politician would want to be seen defending speech that is offensive. There is a certain elitist imposed stigma that goes with defending the right of all people to speak out against a particular belief or lifestyle. The exception to this is if one is defending the rights of a minority (real or otherwise) to attack a majority position.
Any good person dislikes the idea of someone hatefully attacking another individual in their speech. But while this is a good position, more and more the term “hate speech” and hate speech laws have come to be used to prosecute and silence those that disagree even with respect and courtesy with a particular group’s lifestyle or religious views. When this occurs we see a total stifling of the original meaning of the First Amendment’s Free Speech Clause. In a free society there must be a liberty to disagree and speak out against any particular viewpoint. If a particular view is wrong, there must exist a freedom to discuss and disagree with that view point if the ultimate truth is to be discovered. Even later on, once a view has been generally rejected or accepted the opposing viewpoint must still be allowed to exist.
An example of this is the slavery issue. In the early 1800s speech against the institution of slavery could have been regarded by slaveholders as “hateful” towards their livelihood and way of life. During our nation’s early years when the Declaration of Independence was written and our Constitution devised and adopted, slavery was a subject that was only discussed as an aside, as something to be dealt with in the future. But during that time the principle of all men being equal before their Creator and the right of the people to speak freely on any issue without governmental interference was solidified in our declarations and law. Because of this freedom to speak out against even generally accepted ideas, a great debate was held in our country. This debate spilled over as one of the reasons for our Civil War. But because we held this debate, slavery was ended, and our nation was able to more fully realize the high ideals and principles we set forth at our birth.
It has become apparent that laws banning hate speech usually end up targeting those whose religious convictions call on them to speak out against beliefs and lifestyles that are at odds with what they believe. Usually Christians, and occasionally Jews, find their religious convictions being targeted as “hateful” and “intolerant.” A specific example of this happened recently in the nation of Australia. Two Christian pastors were convicted on the grounds that they violated a provincial hate speech law when they quoted passages from the Koran during a seminar on jihad. A Muslim group filed suit against the pastors when they felt that they had quoted only those portions of the Koran that advocated violence, and failed to quote any verses about the goodness of Islam.
It is in this respect that hate speech and hate crimes laws violate the First Amendment’s Free Exercise of Religion Clause. If an individual feels compelled by their religious beliefs to speak out against homosexuality, or any other belief, they must be allowed to do so. Ironically, many Christians attempt to communicate their views with grace and respect while those that would label them “hateful” usually spew out venom and bigotry as they denounce the Christian’s beliefs.
The inclusion of the Free Exercise Clause in the Constitution was for the purpose of preventing any one denomination or religion from denying any other denomination or religion their right to communicate and act upon their religious beliefs. The only exception to this rule would be if an individual or group were to interfere with the safety and rights of another individual or group in the name of their religion. In other words, one does not receive protection under this clause if they were to go about destroying churches because their religious beliefs compel them to do so.
The right of an individual to worship God, or to abstain from doing so, is one that must be protected by the state. James Madison, the father of the Bill of Rights, wrote in his famous Memorial and Remonstrance: “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.” United States Supreme Court Justice William O. Douglas writing for the majority in Murdock v. Pennsylvania (1943) concluded that “Plainly a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful. If that device where ever sanctioned, there would have been forged a ready instrument for the suppression of the faith which any minority cherishes but which does not happen to be in favor. That would be a complete repudiation of the philosophy of the Bill of Rights.”
In sum, government becomes a thought police when it classifies and penalizes hate speech and the very idea of a thought police is repulsive to every American.
The final argument that can be submitted against the enactment of hate crimes and hate speech legislation can be found in a series of facts about crime and our society. It is crucial that we look beyond the passion that clouds a clear discussion of this issue to the history of our country and the facts about hate crimes.
According to the FBI, 0.01% of aggravated assaults and robberies can be classified as “hate crimes”. Only 0.00125% of rapes can be considered “hate crimes” and a mere 0.02% of murders can be classified as a “hate crime.” Furthermore, the vast majority of hate crimes committed against homosexuals are committed not by heterosexuals but by homosexuals! In many instances of reported hate crimes no actual crime was committed and the supposed crime was merely a verbal altercation. It has been calculated that gay-on-gay domestic violence is 14 times more likely to occur than violent anti-gay attacks.***
One final set of figures deals with public opinion on this subject. A poll was conducted that found 98% of people believe that a murder of a homosexual and a heterosexual are equally wrong and should be prosecuted to the fullest extent of the law. This same poll also found that 92% of people believe that actions alone, and not beliefs, should be punished with the victims receiving equal protection under the law.**** These are the same views held by the American Founders when they established our form of government. In short, any politician looking at this issue in a purely pragmatic manner should be able to see that generally speaking they would be better off opposing the enactment of hate crimes and hate speech legislation.
In conclusion not only is the idea of hate crimes and hate speech laws repugnant to our system of government and the liberties protected therein, but it is also contrary to the opinions and sensibilities of our people. Legislators and opinion leaders should not abandon the foundations of liberty for the sake of a politically correct form of legislation. In order to protect the ideals of equal justice and equal protection we must remain committed to the idea that no group among us should be punished for their views, beliefs, or speech.
*See pp. 314, The Heritage Guide to the Constitution.
**In Cohen v. California (U.S. Supreme Court, 1971) the Court found that generalized offensive speech cannot be punished even if it is profane or deeply insulting. See pp. 314 and 315 of The Heritage Guide to the Constitution.
***As researched by Dr. Timothy J. Dailey in “Hate Crime” Laws Mean Unequal Protection, published by the Family Research Council, IF02F1. This publication can be accessed at www.FRC.org.
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