John Whitehead's Commentary

"You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered."--Lyndon Johnson

After 12 years of protracted debate, it looks as if the nation will finally get a federal hate crimes law that includes gay people as a protected class. All this despite the fact, according to the FBI, that of the nearly 1.5 million violent crimes in the U.S. in 2007, only 1,460 were reportedly based on sexual orientation.

Repeated attempts have been made over the past decade to expand the Civil Rights Act of 1968 to include crimes motivated by a person's actual or perceived sexual orientation, gender identity or disability. The most recent legislative attempt, the Matthew Shepard Act, in memory of a gay college student who was savagely beaten to death in Wyoming in 1998, was passed by both houses of Congress in 2007, only to be vetoed by President Bush. However, President Obama has been vocal about his support for the Act and has made clear his desire to see federal hate crimes legislation strengthened, expanded and vigorously enforced.

The Local Law Enforcement Hate Crimes Act of 2009, currently before the House Judiciary Committee, is expected to be sent to the House of Representatives for a vote later this spring. This proposed law gives federal officials greater authority to engage in hate crime investigations at the local and state level. It also removes the current prerequisite that the victim be engaging in a federally protected activity like voting or going to school. In other words, it opens the door for federal law enforcement officials (whether it be agents from the FBI, the Department of Homeland Security and so on) to crack down on undesirable behavior wherever it occurs. The problem, which few want to acknowledge for fear of being labeled politically incorrect, or worse homophobic, is that in order to crack down on hateful behavior, hateful thoughts and expression must also be targeted--which runs diametrically counter to the First Amendment's protections for free speech and expression.

Even the ACLU, which refused to support earlier versions of proposed hate crime bills, has finally caved. In a recent letter to Congress, the ACLU took pains to justify its support for the hate crime bill, insisting that "the legislation provides important new civil rights protections, while also providing an unprecedented level of statutory protection for free speech and association." Unfortunately, the ACLU is asleep at the wheel on this one because, no matter what so-called provisions you include to protect speech, as long as you start prosecuting someone for their feelings about something or someone, all forms of speech and thought immediately become suspect.

It's a complicated, polarizing issue that stirs up deep-seated wells of prejudice, fear and bigotry. However, even with the best of intentions behind it, hate crime legislation on the whole is riddled with problems--and that was the case even before protections for sexual orientation were included.

First, hate crime laws are shortsighted in that they favor a particular class of individuals for protection and seek to punish certain prejudices. As authors James B. Jacobs and Kimberly Potter ask in their book, Hate Crimes: Criminal Law & Identity Politics, "should all prejudices (ageism, anti-gay bias, bias against the physically and mentally disabled, etc.) be included in hate crime laws or only a select few (racism, ethnic bias, and religious bias)? Inevitably, if some groups are left out, they will resent the selective depreciation of their victimization." For instance, the Hate Crimes Act singles gay people out for expanded protection from hate crimes, yet fails to address the thousands of crimes that occur each year against people who, while not gay, just don't "fit in." As one journalist asked, "Why not accord the same enhanced protection to kids who stutter, teenagers with bad acne, or adults who are overweight, homeless, or have unusually large ears?"

What advocates of hate crime laws fail to understand is that in targeting people who hold certain viewpoints for censure, they're creating a preferred class and a victim class of discontents. In other words, by targeting for censure entire groups of people who, either due to education, upbringing, religious views or some other influence, subscribe to views that may be perceived as politically incorrect, they are laying the groundwork for an underclass of discontents--one that may eventually be driven underground and become violent. In other words, hate crime laws may be the spawning ground for a new class of domestic terrorists.

Second, the ramifications go far beyond the intended purpose of dissuading acts of violence against a protected class to actually chilling free speech. On the whole, hate crime laws unnecessarily blur the distinction between what might be constitutionally protected, albeit deplorable, speech and criminal behavior. Eventually, this will spill over into criminalizing any kind of speech that any official in the echelons of government deems to be hateful or distasteful. Thus, hate crime laws, well-meaning though they may seem, punish not just the act but the motive and open the door for a whole new realm of prosecutions, namely thought crimes. In other words, when a crime is committed, hate crime legislation adds additional penalties for the "motivation" (or thoughts) the individual had in carrying out the crime.

Hate crime legislation also gives the government yet another heavy-handed tool for censoring expression. For example, peaceful free expression has been prosecuted as a hate crime. Protesters exercising their free speech rights by carrying signs have been charged with felonies for the messages on their signs, which have been interpreted as "hate speech." In one instance, a group of Christians were prosecuted under a state hate crime law for "singing hymns" and peacefully "carrying signs" while attending a homosexual fair in Pennsylvania. Because the signs challenged the morality of homosexuality, these Christians were charged with three felonies and five misdemeanors and faced 47 years in prison for attempting to preach at a homosexual street fair. Incredibly, a state judge determined that the prosecutions could go forward. His rationale was that the Christians' speech constituted so-called "fighting words."

Thus, there is no way hate crime legislation will not chill constitutionally protected speech or the right to freely associate with whomever one pleases. Under such a rubric, all speech will automatically become suspect, the prelude to an act of violence. Thus, an off-color joke you once told could be used against you as an example of hate speech; casual remarks you once made could be turned into a history of hateful rhetoric.

Hate crime laws also remove the burden of assuming that someone is "innocent until proven guilty." Indeed, this mindset is already taking hold. As one reporter recently noted, "some experts say that citizens should be more concerned about the hidden haters lurking next-door." For example, according to the Anti-Defamation League, the concern isn't so much with organized "hate" groups such as the Skinheads. Rather, "[y]our next-door neighbor or the kid in your classroom with misinformed ideas are much more numerous and require more attention."

Third, this expanded hate crime law creates a whole new class of investigative techniques by government agents and the police. Hate crime laws create a bureaucratic nightmare that poses real threats to our constitutional rights. By providing millions of dollars in funding to help state and local agencies pay for investigating and prosecuting hate crimes, hate crime legislation incites prosecutors to further intimidate defendants by piling on the charges. Under the proposed federal hate crime law, every crime would potentially be a hate crime now. If you happen to be charged with assault and battery against someone, under the law, the government will be looking to see if somewhere along the way you expressed views reflecting hatred for the victim's class.

For example, take a case in Wisconsin where three white men attacked a black man who was sitting in a park talking with his wife, who is white. During the attack, one of the attackers identified himself as a "skinhead" and used a racial slur. At the trial that followed, prosecutors pointed out that one of the attackers, Matthew David Cannon, had a tattoo inside his lip that says "skins," another tattoo on his leg that says "LSD," which stands for "Local Skins Division," and a shaved head at the time of the assault. Cannon's objection that the government was persecuting him for his membership in an unpopular group was rejected in light of the fact that he had engaged in an act of "racial hatred." Following along, any person sporting such a tattoo would have to become a suspect in future incidents involving racially-motivated attacks. It will increasingly become a matter of guilt by association.

The Hate Crimes Act will also create the need for a whole new type of surveillance for individuals possessing politically incorrect viewpoints. In fact, it dovetails neatly with proposed legislation such as the Cyber Security Act, NSA programs such as Aquaint that are intended to not only track your internet activity but formulate patterns based on what you read and browse and predict your behavior, and recent reports from the Department of Homeland Security calling for greater surveillance of individuals possessing so-called "extremist" views.

Fourth, hate crime laws are redundant. There are already a host of stiff penalties on the books for those who commit acts of unspeakable horror, whether the crimes are based on an individual's race, religion, national origin or sexual orientation. Indeed, 45 states, as well as the District of Columbia and the federal government, already have hate crime laws on their books. Under these statutes, hate speech tends to be defined as any form of expression that insults or provokes violence based on race, color, creed, religion or gender. These laws stiffen penalties for crimes committed because of a particular "bias." However, hatred toward the victim often isn't necessary in order to be charged with the crime. Under New York's hate crime statute, for example, no actual hatred for the victim is necessary for a conviction. As one reporter pointed out, "The law requires only that they have singled out a person for a violent act because of some belief or stereotype about that person's ethnicity, gender, religion, age, disability or sexual orientation."

Thus, what we are building up to with the Hate Crimes Act of 2009 is a society that is monolithic in its viewpoint (one where the political right and left comfortably meet and agree) and where everything you do that diverges from the mainstream will be perceived as politically incorrect and extremist. At this point, you'll become part of the underclass of discontents and you'll be viewed as hateful with the potential for violence. Make no mistake: there are a lot of folks who don't fall into the prevalent, monolithic, politically correct view that so many politicians, members of the media and academia have already succumbed to.

The bottom line is simply that you cannot legislate an end to ignorance, prejudice and bigotry, and that's the problem with the Hate Crimes Act. All legislation will do is punish actions and sweep in more innocent people. But it won't change hearts and minds--and that's where you have to start in combating hatred and bigotry.

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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