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Religious Tolerance logo

Hate-crimes legislation

Are the concerns that hate-crime
laws will inhibit free speech reasonable?

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This essay deals mainly with conservatives' concern about a series
of unsuccessful hate-crime bills dating from the years 2000 to 2004.

However, the same concerns are still being expressed about the
federal 2009 hate-crime bill that was signed into law on 2009-OCT-28

Are the accusations reasonable?

According to the People for the American Way, the answer is no. 1

It is of paramount importance to realize that it takes some violent criminal act -- assault, murder, attempted murder, aggravated assault, attack with an explosive device, arson, etc. for a hate crime law to be applied. Speech, including hate speech, is not a criminal act in the U.S. The First Amendment to the U.S. Constitution guarantees almost complete freedom of speech.

Can a clergyperson be charged on the basis of their sermon content?

No. The First Amendment of the U.S. Constitution guarantees that a member of the clergy, or any other person for that matter, can preach, write, post on the Internet, state, or publish an attack on anyone or any group. As proof of this consider:

bullet Back in the 1980s and early 1990s, many conservative Christian web sites -- now mostly offline -- and countless evangelical pastors attacked Wiccans and Satanists with statements that were totally divorced from reality -- including accusations of cannibalism, Satanic Ritual Abuse and other forms of ritual abuse and ritual murder.
bullet The beliefs and teachings of the Creativity Movement (formerly called the World Church of the Creator), some of whose members allegedly went on muderous rampages, killing non-White strangers because of their race.
bullet Religious sermons, particularly during the 1960s, which vilified African-Americans who were seeking equal rights and trying to end racial segregation in the country.
bulletMany decades of anti-semitism on the radio, on television, in books, in sermons, etc.

To our knowledge, none of these individuals or groups were ever charged or convicted of a crime. Thus, it is very doubtful that a clergyperson preaching a sermon of hate against gays and lesbians would ever be charged today. Hate crimes legislation could in no way overrule the freedom of speech guaranteed by the First Amendment of the U.S. Constitution.

In another case, a local municipal ordinance banned the expression of race hatred. The Virginia Supreme Court decided on 2001-NOV-2 that cross burning -- surely one of the most offensive form of speech and behavior -- was  protected by the U.S. Constitution.

The New York Times commented on the case:

"The [Virginia] court said the First Amendment prohibits the government from 'silencing speech on the basis of its content.' The justices struck down a St. Paul ordinance making it a crime to engage in speech or behavior likely to arouse 'anger or alarm' on the basis of 'race, color, creed, religion or gender'."

Several legal experts said yesterday they doubted that the Supreme Court would agree to review the Virginia case.

"The Supreme Court has largely said racist speech is speech, and it is difficult for states to single out racist speech for criminal prosecution," said Robert A. Schapiro, a constitutional law professor at Emory University in Atlanta...

A. E. Dick Howard, a constitutional law professor at the University of Virginia, said many courts had accepted the idea that even offensive communications are protected by the First Amendment.

"The thinking is," Mr. Howard said, "one man's offensive speech is somebody else's free expression." 2

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Can Christian clergy be prosecuted for conspiracy?

No. Quoting the Liberty Council web site mentioned above:  "A conspiracy requires that two or more people "reach an agreement to pursue an an unlawful manner." No conspiracy is present if a clergyperson merely preaches hatred of homosexuals or homosexuality to a congregation, radio audience, or TV audience, even if someone listening to the sermon subsequently engaged in gay bashing. To be guilty of conspiracy, the perpetrator would have to engage in an agreement to commit a criminal act. For example, the individual would have to contact the clergyperson, explain that he/she was going to engage in gay bashing, and the clergyperson would have to agree with that course of action. In other words, the pastor, priest or minister would have to discuss and agree on committing a criminal act.

If there were some way to charge a clergyperson with conspiracy, then charges could be laid whether hate crimes legislation were in place or not. After all, a crime had been committed But, as explained above, there is no way to implicate a clergyperson unless they were directly involved in the planning of the crime. And if they were directly involved, they should be charged.

Are hate laws effective?

Jonathan Kozol's comment mentioned previously: "We cannot rebuild society by legislative penalties for insensitive acts and utterances," is not applicable to hate crimes legislation. Recall that such laws only kick in if a violent crime has been committed. "Insensitive acts and utterances" may be socially unacceptable, but do not constitute a crime.

What are the likely results of hate-crime laws?

Hate crime laws can be expected to bring about a number of changes:

bulletHate-filled individuals will be deterred; they will be less likely to engage in violent criminal acts against one of the protected groups if they know that the much longer sentences in the hate crimes act would kick in.
bulletBigotry against members of the protected groups should decrease. This is because the government is going on record as stating that all of the members of these groups are people with human rights. In the case of sexual orientation, this would mean that persons of all orientations (heterosexual, homosexual and bisexual) are to be accepted as full citizens deserving of respect.
bullet In time, homosexual and bisexual orientation should be almost universally accepted as normal and natural for a minority of adults.
bullet More bisexuals would feel free to choose to engage in same-sex relationships without fear of physical or economic attacks.

bullet Many religious and social conservatives will believe the misinformation being spread by various Christian news sources. They will be terrified that they could be prosecuted under the hate-crimes law if they engage in hate-speech. Although they have no grounds for such fear, it will serve to inhibit them from expressing hatred against sexual, religious, racial and other minorities. This can contribute to a more peaceful and hate-filled culture. However, when a few years have passed and there have been no prosecutions for hate speech under the hate crimes law, the inhibiting fear may eventually wear off, and hate speech will increase.

It is the latter four developments that persons opposed to hate crimes legislation may be the most concerned about. The most active advocates against hate crime law are religious and social conservatives. They generally regard sexual orientation and gender identity as being chosen, changeable, highly undesirable, and hated by God. If gays, lesbians and bisexuals are given rights, protections, and respect equal to those heterosexuals, then conservatives reason that more people would choose to adopt a minority sexual orientation or identity. It is important to realize that all of the professional organizations of psychologists, psychiatrists, social workers, and others have gone on record as repudiating these beliefs concerning sexual orientation. They are only supported by a very small professional group, NARTH.

The path forward:

As of 2010-JUN:

bulletAbout 45 states have passed hate-crime laws. To our knowledge, no pastor, educator, politician, or other person has ever been charged and/or convicted under any of these laws because of something that they have said in a speech or placed in written form.
bullet Nine attempts to pass a federal hate-crimes law failed. However, the tenth was successful. A bill has been passed by both the House and Senate. President Obama signed the bill into law on 2009-OCT-28

We will carefully monitor news sources looking for some indication that the fears of social and religious conservative's have come true. That is, that a person has actually been charged under a hate-crime law with uttering hate speech -- whether it was said in a sermon, or spoken elsewhere in public, or written down.

We are not holding our breath. The last time that this essay was updated, eight months had passed, and not a single charge has been laid on the basis of hate speech.

See also an essay on Conservatives' concerns about
the 2007 and 2009 versions of the hate crime legislation

References used:

  1. Blake Roberts, "Hate crimes, not legislation, violate freedom," The Hoya, 2000-FEB-8, at:
  2. William Glaberson, "Court Voids Law Banning Cross Burning," 2001-NOV-3, New York Times, at:

Copyright © 2001 to 2010 by Ontario Consultants on Religious Tolerance
Originally written: 2001-SEP-04
Latest update: 2010-JUN-12
Author: B.A. Robinson

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