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Speech KO'd: The perils of legislating against hate

by: daniel clark | published: 01 01, 2014

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The Justice Department has announced that it will pursue federal “hate crime” charges against a participant in what is known as “the knockout game.” For those who are unaware of it, the knockout game is a form of recreational violence in which the attackers sucker punch an innocent person, usually while recording the incident for their own amusement.

Because the willing participants in this “game” had almost exclusively been black, and their victims white, the fact that the first such crime to be prosecuted by Attorney General Eric Holder involves a white assailant and a black victim has become the source of controversy. While Holder’s racial double-standard in enforcing the law is well documented, it is in this case a secondary point.

The attacker – a cowardly goober who broke an elderly man’s jaw – is unquestionably guilty. Of assault, that is. It is the idea that he should be given a separate punishment because of his stated racial motivation that ought to incite people’s anger and fear. Rather than demanding equal application of hate crime laws, we should be demanding an end to the criminalization of thoughts and feelings.

At the state level, hate crime laws have been enforced against white and black offenders alike. In fact, the 1993 Wisconsin v. Mitchell Supreme Court case that upheld one of these laws involved a black man who had challenged his conviction on First Amendment grounds. The Court ruled unanimously against him, and no wonder. If not for the judiciary’s adherence to the anti-constitutional concept of “incorporation” – by which the Constitution’s restrictions on federal power are assumed to apply to states and localities – the case would never have gotten that high in the first place.

Read correctly, the First Amendment does not prohibit state and local governments from abridging freedom of speech, which is the real reason why the Constitution doesn’t protect someone who shouts “fire” in a crowded theater. It isn’t because Oliver Wendell Holmes hurled a thunderbolt from Mount Olympus and declared, “the First Amendment ends here.”

Mitchell would have had a more compelling argument under the Eighth Amendment’s provision against cruel and unusual punishments. Under normal circumstances, the greatest amount of prison time he could have been given was two years, but under the hate crime law, the maximum for his offense is increased to seven. Hate crime laws impose additional, unusual punishments on a small number of criminals, to which others who commit similar crimes for different motives are not subjected.

In the Mitchell decision, Chief Justice William Rehnquist made the uncharacteristically illogical observation that judges and juries were already at liberty to impose harsher punishments based on the criminals’ motives. The difference is that he’s referring to sentences that fall within the range of prescribed punishments for the crimes committed, and thus are not unusual. A hate crime law adds a whole other level of punishment on top of that. The criminal is punished once for his crime, and again for what he was thinking or feeling when he committed it.

Eventually, it’s bound to occur to our lawmakers that if “hate” is legally punishable, then an accompanying crime is not necessary. This idea has already taken root in Germany, France and Canada, where people are prosecuted for expressing thoughts that are deemed to be hateful. For instance, musician Bob Dylan has recently been charged by the French with “incitement to hatred” for comparing Croatians to Nazis. The charges were filed after a group called the Council of Croats in France filed a complaint.

If a similar law were enacted in our country, all it would take to indict somebody would be a complaint from the NAACP, La Raza, CAIR, GLAAD, the ADL, or any other organization whose mission is to become offended by things. To call the result a chilling effect would not begin to describe it. Petrifying might come a little closer.

So far, there’s been little resistance to the movement in that direction, and we’re already halfway there. The Justice Department reveals that it seeks to punish somebody for having an immoral thought, and the only visible controversy is whether such prosecutions are in racially correct proportion to the thought crimes being committed.

If only we could be assured of an equitable distribution of tyranny, so that people of all races and religions would be equally terrified to speak, maybe then we’d all be satisfied. At any rate, we’d be forced to pretend to be, which is pretty much the same thing, isn’t it?

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