I think that those of us who support hate crime laws — and I do — have a moral obligation to speak out when they’re mis-applied. If we’re going to argue — as I do — that they’re substantially different from hate speech laws or rules and don’t constitute a violation of the First Amendment right to free speech, I think we need to speak out when they get applied in a way that is unconstitutional and does restrict free speech.
And it seems like that’s what’s happened in a case in which teenage girls who distributed anti-homosexual fliers at their high school were charged with a hate crime. (The original news article about it has expired off the web, alas, but you can get details here and here.)
So I think it’s important to say: No. That’s not what we meant. Hate crime laws mean that when you kill someone or beat them to a pulp because they’re gay or black or Muslim (or for that matter, straight or white or Christian), it’s a more serious crime than killing someone or beating them to a pulp because they dented your car or slept with your girlfriend, and it deserves a harsher penalty.
They don’t mean that you get hit with a hate crime charge for distributing flyers. No matter how hateful they are.
Now, I don’t think a single misapplied arrest proves that hate crime laws are bad laws. I mean, laws against murder and rape and assault get misapplied all the time, and I don’t see anyone screaming for those laws to be overturned.
And I understand that this case may not be as simple as it seems on the surface. If one or both of these girls committed some other serious crime, and the prosecutors think it was motivated by anti-gay hatred, then I could see the flyers being admissible as evidence of a hateful motivation in that other crime.
But the distribution of the flyers itself?
No.
That should not be a crime.
That is most emphatically not what we meant.
Solid logic if you ask me 🙂
I agree with what you have said. There is a fine line between punishing a hate crime and still allowing freedom of speech.
While, as you say in your post, a hate crime should be considered an action, like killing someone rather than just hateful fliers, the fliers are still an act of hate and intolerance.
Although someone yelling ‘faggot’ or ‘nigger’ to someone on the street might be considered free speech, it is just plain cruel. We probably shouldn’t have laws put into place to punish this kind of behavior, but it is an important issue to deal with. No one should have to walk into their school faced with fliers or name calling that are direct attacks on their religion, ethnicity, sexuality or otherwise. It is a tricky problem.
The hate crime charge is bogus and unconstitutional. As far as I can tell, there is no “crime” involved at all.
However, because the school is a place that both the girl and her target are required to be by law, the standards are different. The rules of the school may forbid that which is perfectly legal.
In particular, a homophobic attack on a specific person constitutes sexual harassment, and the school is legally required to take action to prevent said harassment. So school-based consequences are appropriate in this case, along with at least an attempt at mediating the ongoing conflict.
The one other issue I see is whether the girls also made any threats towards the target. The moment there is an actual threat of physical harm, I think the hate crime laws kick back in again, but I could be wrong.
Dearest Greta.
I have a serious problem with hate crime laws on two fronts and am curious about why exactly you support them.
Initially, if we consider an act (assault, murder, abusive language) a crime, does its motivation change the severity of the penalty or infraction? at the baseline, the reason people commit crimes fall into two categories, either they are cornered and feel there is no other choice, or they are dumbasses. Hatecrimes fall into the latter category. after all what is a gay man going to do to you, redecorate? The motivation for a crime does not change its severity or nature.
Secondly, if we are going to accept people of any and all varieties into our culture, we must all be truly the same under the law. If a group, any group receives special defense under the law, that group is segregated under the law. segregation being the polar opposite of acceptance and understanding, I would think you would be four square against it.
Please, for me, clarify your position on this subject. I find it most confusing.
Let’s see. To your first question:
Yes, we do consider motivation when determining how severe a crime is and how harsh the punishment should be. I talk about this some in my first post on hate crimes:
http://gretachristina.typepad.com/greta_christinas_weblog/2007/05/hate_crime_laws.html
Here’s the key graph from that post:
“Look at the difference between first-degree murder, second-degree murder, manslaughter, justifiable homicide, etc. Our laws say that it’s worse to kill someone in cold blood for money than to kill someone in the heat of passion for anger; which is worse than killing someone recklessly and stupidly in an accident; which is worse than killing someone in self-defense. It’s a clear legal principle: different reasons for killing people deserve different degrees of punishment.”
Second: Hate crime laws don’t offer special protection to specific groups. They don’t say, for instance, that it qualifies as a hate crime if you beat up someone because they’re black. They say that it qualifies as a hate crime if you beat up someone on the basis of their race. Any race. It’s just as much of a hate crime to beat someone up for being white, straight, Christian, as it is to beat someone up for being black, queer, or Muslim.