U.S. hate-crimes bills/laws

California law (Bill SB 1234)

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About the bill:

Most past conflicts in the U.S. over hate-crime legislation have been caused by legislatures trying to add sexual orientation to the list of protected classes under an already existing hate-crime law. Bill SB 1234 is an exception. Persons of all sexual orientations -- heterosexual, bisexual and homosexual -- are already protected under existing California hate-crimes legislation.

Objections seem to be focused on one part of the law that would criminalize incitement to violence if it hate speech could be reasonably expected to result in physical harm to members of a protected group. For example, it would criminalize incitement to violence directed against African-Americans if it were delivered with such zeal, and had sufficient backing, that an African-American would reasonably fear physical harm or loss of her/his life. The law would not criminalize thoughts. It would not criminalize speech itself. However, it would criminalize the act of inciting violence of the probability of harm were sufficiently great. This bill has thus gone well beyond the scope of hate-crimes legislation elsewhere in the U.S. which require that an actual crime be committed before the hate-crime law comes into effect.

The main intents of bill SB 1234 are:

	To harmonize the wording of existing state hate-crimes laws,
	To define precisely terms relating to hate-crimes,
	To increase penalties to $5,000 in fines and/or six months in jail, and
	To enhance the training that police officers receive about hate crimes.
	To criminalize the incitement to violence against a protected group if it is sufficiently serious that it can reasonably be expected to result in harm to members of the targeted victims.

The bill was sponsored by Senator Sheila Kuehl (D) of West Los Angeles. It was passed by both houses of the legislature by healthy margins on 2004-AUG-24 and 25. The votes were 24 to 14 in the Senate, and 51 to 23 in the Assembly. A number of fundamentalist Christian groups and individuals tried to convince Governor Schwarzennegger (R) to veto the bill. However, he signed it into law on 2004-SEP-22. The law became effective on 2005-JAN-01.

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Groups formally supporting and opposing the bill:

The bill was officially supported by:

Equality California; Anti-Defamation League; California Church Impact; California Council for the Blind, San Bernardino; California Council for the Blind, Inland Empire; California NOW; Commission on the Status of Women; Community United Against Violence; Crime Victims United of California; Jewish Community Relations Council; Los Angeles Coalition to End Hunger and Homelessness; Metropolitan Community Church Los Angeles; Mexican American Legal Defense and Educational Fund; Muslim Public Affairs Council; National Center for Lesbian Rights; National Coalition for the Homeless; Our Family Coalition; Pride at Work, Southern California; San Francisco Lesbian, Gay, Bisexual, and Transgender Community Center; SoCal Pride at Work; Transgender Law Caucus; and Western Center on Law and Poverty.

It was formally opposed by:

The Capitol Resource Institute, and Campaign for California Families. ₆

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Fundamentalist Christian opposition to the bill:

A number groups mounted a stiff opposition to the bill:

Campaign for California Families: Executive director, Randy Thomasson, was concerned that if the bill is signed into law, it would be used to punish Christians for speaking out on moral issues. He said: "The attack upon religious freedom that we see happening in America will only be accelerated by hate crime laws. We're all against the violent crimes against persons or property, but let's punish conduct. Let's not punish thoughts." ₁ He may not realize that the bill would not punish thoughts; it would not punish attitudes; it would not punish speech; it would only punish the incitement to violence, and then only if it were so egregious that could reasonably be expected to result in harm or death to the victims targeted by the speech.

California Family Council (CFC): Their "...mission is to protect and foster Judeo-Christian principles in California�s laws, for the benefit of its families." ₂ Their main efforts are devoted to restricting abortion access, prohibiting same-sex marriage, and preserving the right of parents to discipline and raise their children as they see fit, without interference from the state. CFC concludes: "It is clear that this bill is intended to punish those who speak out in defense of the pre-born as well as restrict the rights of persons to speak out against homosexuality." ₃ They are concerned that the bill does not define precisely "...what constitutes a person being 'at risk of becoming a victim'." ₃ They are also concerned that the bill contains the phrase "in whole or in part." That is, if a mugging or other crime were motivated both:

	By hatred of the victim because of his identity as a member of a protected group, and
	By a need for money,

the hate-crimes legislation would still apply.

Campaign for California Families: Their values include "[heterosexual] marriage and family, parental rights, sanctity of life,... [and] freedom of conscience." They work: "...on behalf of the best values the world has ever known." ₈ Thisis presumably a reference to Judeo-Christian ethics. They have three main concerns about Bill AB 1234:

They object to hate-crime laws generally. They believe that they result in some people being judged to be more valuable that others. For example, if John Doe randomly picked a lesbian and killed her because he hates everyone with a homosexual orientation, he would be given a stiffer penalty than if he killed his grandmother because he hated her. That is, the lesbian would be valued more than the grandmother. Actually, the philosophy supporting hate crime legislation is not that some people are valued more than others. It is that hate-crimes contain two aspects:

	The crime itself which harms the victim, and
	The crime as a terrorist act to spread fear and insecurity among the entire population of which the victim is a member.

In the previous example, it is not that the lesbian is valued more than the grandmother. It is that the murder is intended to terrorize all lesbians or all homosexuals. Hate crimes include an element of terrorism directed at an entire community of individuals.

They are concerned that such "...laws will lead to severe infringement on free speech..." This bill would definitely infringe on a person's right to incite a group to violence. It would not infringe on the personal freedom to hate an entire group of strangers, or even express that hatred to a group. Whether this is a "severe infringement on free speech" is a judgment call. All forms of speech has never been truly free. It has always been considered improper to falsely yell "Fire" in a crowded theatre, for example.

The bill would protect transvestites -- and perhaps transsexuals -- against the incitement to violence. They write on their website: "SB 1234 promotes the cross-dressing agenda throughout the Penal Code." ₉

Concerned Women for America issued an Action Alert when bill SB 1234 passed the Assembly. The national office notes that: "CWA of California continues to vigorously oppose this legislation and has placed the attached ad in the September issues of San Diego area Christian newspapers." ₁₀ Unfortunately, a copy of the ad does not appear in their web site. They provide fax numbers, phone numbers, Email addresses and a sample message for Governor Schwarzenegger, to try to persuade him to veto the bill. Their main concerns are:

	The bill would criminalizes "speech rather than actions."
	Judicial interpretation of the bill, if it became law, could threaten freedom of speech and religion in the state.
	"While the bill states that speech alone is not actionable, it immediately makes an exception if that speech creates fear of violence in the perceived victim." ₁₀ In reality, the bill requires more than simple fear of violence on the part of the victim. The fear must be "reasonable" and the the person inciting violence must have "the apparent ability to carry out the threat."
	"Even various forms of peaceful conduct, such as prayer vigils outside abortion clinics, could potentially be considered a 'threat of force'."
	That in Canada, one can no longer "speak critically about homosexuality" on radio or TV. Actually, it is quite possible to discuss all aspects of homosexuality there, as long as hate propaganda is not involved. Also, one must be prepared for opposing views to be given equal time.
	That in Canada, an individual and newspaper were fined for an ad which quoted some of the "clobber" passages in the Bible which have been used against homosexuals. Actually, the Bible passages were not quoted in the ad; only citations to the verses were listed. A symbol including two stick figures accompanied the citations. Valerie Watson, who formed a one-person board of inquiry commissioned by the Saskatchewan Human Rights Commission, stressed that the ruling did not ban parts of the Bible. She wrote that the offense was the combination of the symbol with the biblical references.
	That in Sweden, a pastor was charged, convicted and sentenced because he read Bible verses about homosexuality in church. Actually, he did a lot more than just read some verses. He is reported as describing homosexuality as an: "abnormal, a horrible cancerous tumor in the body of society." He described homosexuals as "perverts, whose sexual drive the Devil has used as his strongest weapon against God." He was charged with inciting hatred against a group of people on the basis of their sexual orientation. But Bill AB 1234 would not apply to this type of situation, because the pastor merely incited hatred; he did not incite violence.

Family Research Council: This is a Washington DC based, fundamentalist Christian social action group that is very active in limiting abortion access, fighting same-sex marriage, opposing equal rights for gays and lesbians, etc. President Tony Perkins commented on bill AB 1234 in one of his Washington Updates. He feels that the bill would primarily inhibit freedom of speech by creating a class of thought crimes -- its main goal is not to control criminal behavior by outlawing the incitement to violence: "This bill is a prime example of the adage that ideas have consequences. In this case, bad liberal ideologies like thought crimes, taken to their logical conclusion, have very bad consequences." ₁₁

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What does the bill really say:

There appears to be considerable misunderstanding of the bill's text:

	Judy Chu, chairperson of the Assembly Committee on Appropriations prepared a summary of the bill, which said in part: "This bill defines a hate crime as a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: disability, gender, nationality, race or ethnicity, religion, sexual orientation, association with a person or group with one or more of these actual or perceived characteristics." ₄(Emphasis ours). Conservative Christians "speaking out on moral issues" have absolutely nothing to fear from this legislation. Even if their speech degenerates to the level of hate speech, this law would not be applied. It is only if the hate speech was accompanied with the incitement for violence against a protected group that the law would kick in.
	Section 51.1j of the California Civil code would be changed to read: "Speech alone is not sufficient to support an action brought pursuant to...[this law], except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat." ₅ There would have to be a credible threat of violence by the perpetrator of the hate speech before the law would be applicable.
	Section 51.1k would read: "No order issued in any proceeding brought pursuant to...[this law] shall restrict the content of any person's speech. An order restricting the time, place, or manner of any person's speech shall do so only to the extent reasonably necessary to protect the peaceable exercise or enjoyment of constitutional or statutory rights, consistent with the constitutional rights of the person sought to be enjoined."

As noted above, this bill was signed into law and became effective on 2005-JAN-01.

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References:

Allie Martin, "California Christians Urge Hate Crimes Bill Veto," Agape Press, 2004-AUG-26, at: http://www.crosswalk.com/
"About us," California Family Council, at: http://www.californiafamily.org/
"SB 1234 Expansion of hate crimes," California Family Council, at: http://www.californiafamily.org/
Judy Chu, "SB 1234 bill analysis," Assembly Committee on Appropriations, at: http://info.sen.ca.gov
Jody Brown, "California's Hate Crimes Expansion Potentially 'Dangerous' for Christians, Activists Say. Pending Legislation Would Punish Those Who Speak Out Against Homosexuality," American Family Association, 2004-AUG-18, at: http://headlines.agapepress.org/
"Bill Analysis: SB 1234," Senate Rules Committee, 2004-MAY-24, at: http://info.sen.ca.gov/
"Bill Number: SB 1234 amended. Bill text," at: http://www.leginfo.ca.gov/
"About CCF," at: http://www.savecalifornia.com/
"SB 1234 (Kuehl) � Hate Crimes" Bill That Values Certain People as More Valuable than Others, and Could Infringe upon Freedom of Speech," Campaign for California Families, at: http://www.savecalifornia.com/
"CWA of California Action Alerts: 'Hate Crimes' Bill Passes Assembly," 2004-AUG-28, at: http://www.cwfa.org/
Tony Perkins, "California Lawmakers Expand Thought Crimes," Washington Update, 2004-AUG-30.