Hate Crimes and Hate Speech

[Stan]

June 28, 2007

Hate Crimes and Hate Speech

By James Standish

The "Local Law Enforcement Hate Crimes Prevention Act of 2007" is a bill that would extend federal jurisdiction to, and provide federal resources for, the investigation and prosecution of "hate crimes." Further, it sets the prison terms for "hate crimes" in some circumstances. There are four primary concerns over the bill:

* First, some claim it will outlaw speech by those who believe homosexual activity is immoral.

* Second, some claim the bill provides unequal justice to the victims of crime.

* Third, others claim the bill is unnecessary and diverts funds and resources away from equally or more serious problems.

* Fourth, there are concerns that the bill is a step towards using the law to marginalize those who believe homosexual activity is immoral.

Does the Bill Ban Speech Against Homosexual Activity?

There are at least two layers of analysis required to determine the impact the bill will have on speech regarding the morality of homosexual activity. First, does the bill directly ban speech? Second, what indirect impact will the bill have on efforts to curtail speech?

Does the Bill Directly Ban Speech?

The bill states: "Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution." This guarantee sounds stronger than it is. Even if the backers of the "hate" crimes bill wanted to ban "hate" speech protected by the Constitution, they could not do it as all law must comply with the Constitution. Thus the question is, how broadly do the courts interpret the Constitution's guarantee of free speech? The Courts are broadly protective of the First Amendment right to free speech. Thus, any attempt to ban "hate speech" would almost certainly be found unconstitutional.

In very limited circumstances under current law, a person who incites another to violence is liable for that violence. To date, this has not been used against pastors, politicians or similar figures who publicly state their moral views on homosexuality.

Two cases are widely cited to support the claim that "hate" crimes laws ban criticism of homosexual activity. The first case comes out of the prosecution of protesters in Philadelphia. The case was appropriately dismissed at the trial level, with the judge stating: "You cannot stifle free speech because you don't want to hear it?." Similarly, opponents of the current bill frequently cite foreign precedent - particularly Canada and Sweden. This ignores two facts. First, that the U.S. free speech protections are much broader than the vast majority of nations in the world - including western industrialized nations. Second, the most frequently cited foreign case - the case of Pr. Ake Green of Sweden, is more complicated than is acknowledged. While Pr. Green was convicted at trial level under a Swedish hate speech law for preaching the Biblical view of homosexual behavior, the conviction was overturned on appeal, and the Swedish Supreme Court confirmed the decision in favor of Pr. Green. Thus, even in Sweden, pastors cannot be jailed for preaching Biblical morality.

What Indirect Impact Could the Bill Have on Free Speech?

There is, however, a more subtle concern. By including homosexuality as a federal protected class, the proposed hate crimes bill may give added support to gay rights activists who want to ban criticism of homosexual activity in a variety of circumstances. There are at least three ways to ban speech without running afoul of the Constitution.

First, public officials may be punished for their views by removal from office. As many public officials serve at the pleasure of the executive or legislature, their appointment can be terminated for any or no cause. In Maryland, for example, a Catholic official was removed by the Governor in retaliation for stating in his private capacity that he believes homosexual behavior is "aberrant." Similarly, General Peter Pace, Chairman of the Joint Chiefs of Staff, faced calls for his resignation after stating that he believes homosexual behavior is immoral. While he was not fired, he was forced to apologize, and this year it was announced that he would not be given a second term. Some observers believe that Senator Levin, the chairman of the Senate Armed Services Committee, blocked the reappointment of General Pace primarily in retaliation for the General's statement on homosexual behavior.

Second, the Constitution only covers the actions of the government. Thus speech restrictions by private employers are legal and at least to some extent, common. Further, private employers can generally discipline employees for what they say outside of the work environment as well as what they say while they are on the job. Gay rights activists have promoted speech rules in the workplace that impose sanctions on employees who express anti homosexual comments.

Third, the government can limit free speech in some special contexts. This includes public schools and governmental workplaces. Gay rights activists have supported speech codes in these environments that prevent expression of the view that homosexual behavior is immoral, even if the expression is in response to the school or supervisor promoting the opposite view.

It is impossible to draw a direct correlation between these three categories of speech regulation and the current federal hate crime bill. It is reasonable to conclude, however, that including homosexual behavior as a protected class in federal law would tend to legitimize restrictions on the speech of those who view homosexual behavior as immoral, and to encourage further such restrictions.

Equal Justice for All Victims of Crime

The second concern over the bill is that it provides special protection to some victims of crime, over other victims who are as deserving or more deserving of special protection. The most common example of those not covered by the bill is the elderly. But the bill also fails to cover children - arguably the most vulnerable, innocent and exploited group in society.

There are a number of reasons given for this, but each proves controversial in its own right. The most common rationale is that homosexuality is an immutable characteristic like race, ethnicity, national origin and gender, and thus should be similarly protected, while age is not immutable (that is, unchangeable). This proves controversial for three reasons.

* First, some believe homosexual inclinations, while having some genetic component, have other factors as well - including environmental factors and the exercise of free will. Thus, they believe homosexuality is not immutable in the way as race, ethnicity, national origin and gender are.

* Second, there are many behaviors that have a genetic component that are not singled out for protection under our laws because they are not viewed as beneficial to society. For example there appears to be a genetic component to alcoholism and other forms of substance abuse. Thus even if it is accepted that a genetic predisposition equates to immutability, it does not follow that just because homosexuality is immutable that it should be included as a protected class under U.S. law.

* Finally, immutability is not the determining criteria for protection under U.S. law; religion is a protected class, but it is not immutable. Indeed millions of people change their religion each year.

Is the Bill Needed?

Whether or not additional groups should be included in hate crimes legislation, however, proves to be somewhat of a red herring. The central question must be whether the bill is necessary to ensure the capture and punishment of those who commit heinous crimes designed to terrorize the gay community, and other protected classes under the bill. If such crimes are not being investigated and prosecuted on the same basis as other crimes, legislation may be necessary to ensure they are. If they are being investigated and prosecuted under current law, and if the perpetrators are being given appropriately severe sentences, then this legislation is unnecessary.

After repeated requests, proponents of the bill have not been able to proffer evidence that the crimes covered in the bill are currently receiving less attention than other types of crimes. Indeed, anecdotal evidence indicates the crimes covered in the bill are receiving significantly more law enforcement and prosecutorial resources than other similarly heinous crimes committed with other motives.

The Senate version of the hate crimes bill is named after Matthew Shepard, a gay student murdered in Wyoming, in what was widely believed to be an attack motivated by hatred towards homosexuals. The Matthew Shepard media coverage was intense and his killers were caught and severely punished. Elton John, Melissa Etheridge and even Peter Paul & Mary, among others, recorded songs in Shepard's honor.

Around the same time Matthew Shepard was murdered, Jesse Dirkhising, a 13 year old boy, was raped, tortured and murdered by two adult men. Despite the horrific details of Jesse's case, it received little media attention. Today there is no bill in Congress named in his honor, and no songs dedicated to his memory. Why the disparity?

Some argue the brutal murder of Jesse Dirkhising simply wasn't news worthy because crimes against children are so common. They have a point. There are roughly a million crimes committed against minors in America each year. In comparison, the FBI reports approximately 7,000 "hate crimes." Because the "hate crimes" bill doesn't include any additional resources for federal law enforcement personnel even while it expands their jurisdiction, it will inevitably result in transferring resources away from crimes against children to crimes against those covered in the bill. It could well be argued that before law enforcement resources are allocated away from crimes against children, a showing must be made that such a reallocation of resources is necessary.

A Broader Impact

This raises an additional question: if crimes motivated by animus against the gay community are already being investigated and prosecuted with at least the level of vigor and resources as crimes animated by other motives, what is the purpose of the bill? While the bill has support from groups that do not exclusively support gay rights, the primary force behind the bill is the gay rights issue. By including sexual orientation and gender identity in the categories protected by the bill, gay rights proponents achieve an important goal: the law would equate sexual orientation with race and other existing protected classes in other federal law. This is important because gay rights activists frequently equate those who hold Biblical views on homosexuality with racist bigots. By incorporating sexual orientation as a protected class along with race in federal law, they are one step closer to establishing in the law and in society the correlation between racists and those who believe homosexual behavior is immoral. Should they achieve this goal, organizations that continue to promote the Biblical view of sexuality will face a number of significant challenges in the law.

These include challenges to their hiring practices, challenges to their policies regarding student behavior, and possible challenges to broadcast licenses, among others. Organizations may even lose their tax exempt status. In Bob Jones University v. United States, 461 U.S. 574 (1983), the Supreme Court found that it was permissible to strip Bob Jones University of their tax exempt status in retaliation for their racist policies. It goes without saying that Bob Jones University's ban on inter-racial dating was abhorrent (the University dropped its policy in 2000). But if racism and Biblical morality are equated in the eyes of the law, there is a possibility that those churches that remain faithful to the Biblical view will be treated in a similar manner to entities that maintained racist policies.

Thus, if the gay rights community is successful in equating Biblical morality with racism in the law, the legal implications could be quite dire for individuals and organizations that continue to hold the Biblical view that homosexual behavior is immoral; or at least those who express this view or formulate policies based on the view.

These religious liberty newsflashes and legislative e.lerts are published by the Pacific Union Conference of Seventh-day Adventists, Department of Public Affairs & Religious Liberty.

[Woody]

Quote:

Does the Bill Directly Ban Speech?

Reminds me of the BOO BAN BILL movement we had just a short time ago here on CA.