Hate-crimes legislation

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

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

However, the same concerns are still being expressed
about the 2009 hate-crime bill.

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 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:

	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 Satanic Ritual Abuse and other forms of ritual abuse.
	The beliefs and teachings of the Creativity Movement (formerly called the World Church of the Creator), some of whose members allegedly murdered strangers because of their race.
	Religious sermons, particularly during the 1960s, which vilified African-Americans seeking equal rights and trying to end racial segregation.
	Many decades of anti-semitism on the radio, on television, in books, in sermons, etc.

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 would 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

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 objective...in 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, and 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 main results:

	Hate-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.
	Bigotry 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.
	In time, homosexual and bisexual orientation should be almost universally accepted as normal and natural for a minority of persons.
	More bisexuals would feel free to choose to engage in same-sex relationships without fear of physical attack.

It is the latter three 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. These same groups generally regard sexual orientation and gender identity as being chosen and changeable. If gays, lesbians and bisexuals are given rights and respect equal to heterosexuals, then conservatives reason that more people would choose to adopt a minority sexual orientation or identity.

The path forward:

As of 2009-JUL-22:

	About 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.
	Nine attempts to pass a federal hate-crimes law have failed. However, the current tenth try may well be successful. A bill has been passed by both the House and Senate. President Obama has indicated his strong support. It may be eventually signed into law.

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.

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: http://www.thehoya.com/viewpoint/
2. William Glaberson, "Court Voids Law Banning Cross Burning," 2001-NOV-3, New York Times, at: http://www.nytimes.com/2001/11/03/

Copyright © 2001 to 2009 by Ontario Consultants on Religious Tolerance
Originally written: 2001-SEP-04
Latest update: 2009-JUL-22
Author: B.A. Robinson

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