Are the concerns that hate-crime
laws will inhibit free speech reasonable?
This essay deals mainly with conservatives' concern about a series
hate-crime bills dating from the years 2000 to 2004.
However, the same concerns are still being expressed
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
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
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 cannibalism,
Satanic Ritual Abuse and other forms of
ritual abuse and ritual murder.
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.
||Religious sermons, particularly during the 1960s, which vilified
African-Americans who were seeking equal rights and trying to end racial segregation in the country.
||Many decades of anti-semitism on the radio, on television, in books, in
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.
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
"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, 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:
||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
||In time, homosexual and bisexual orientation should be almost universally accepted as normal
and natural for a minority of adults.
||More bisexuals would feel free to choose to engage in same-sex relationships
without fear of physical or economic attacks.
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:
||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 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
Blake Roberts, "Hate crimes, not legislation, violate freedom," The
Hoya, 2000-FEB-8, at:
William Glaberson, "Court Voids Law Banning Cross Burning,"
2001-NOV-3, New York Times, at:
Copyright © 2001 to 2010 by Ontario Consultants on Religious
Originally written: 2001-SEP-04
Latest update: 2010-JUN-12
Author: B.A. Robinson