Last updated on: 6/4/2009 9:25:00 AM PST
Do Hate Crime Laws Often Violate the Right to Free Speech?
General Reference (not clearly pro or con)
The Library of Congress provided the following summary of the "Local Law Enforcement Hate Crimes Prevention Act of 2005," posted on THOMAS, the Library's electronic search service (accessed June 14, 2006):
"Local Law Enforcement Hate Crimes Prevention Act of 2005 - Authorizes the Attorney General to provide technical, forensic, prosecutorial, or other assistance in the criminal investigation or prosecution of any crime that: (1) constitutes a crime of violence under federal law or a felony under state or Indian tribal law; and (2) is motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim or is a violation of the hate crime laws of the state or tribe. Directs the Attorney General to give priority for assistance to crimes committed by offenders who have committed crimes in more than one state and to rural jurisdictions that have difficulty covering the extraordinary investigation or prosecution expenses...
Prohibits specified offenses involving actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability."
June 14, 2006 - US Library of Congress (LOC)
Local Law Enforcement Hate Crimes Prevention Act of 2005 (55 KB)
Douglas Lee, JD, Legal Correspondent for the Freedom Forum First Amendment, in his Oct. 30, 1998 article for the Freedom Forum website, titled "Criminalizing Hate Shackles Everyone's Rights," wrote:
"Under the existing hate-crime law, the federal government can prosecute and seek enhanced penalties for state crimes that are motivated by the victim's race, color, religion and national origin...
The risk to the First Amendment is highest in less serious — and therefore more frequent — hate crimes... Is purse-snatching a hate crime because the offender's victims are only women? What if the offender is black and all of his victims are white? In cases like these, the 'hate' will not be apparent from the crime itself, but only from the defendant's thoughts, statements and beliefs...
Expanding the reach of hate-crime statutes undoubtedly would criminalize more speech and narrow even further the First Amendment protections that have for two centuries shielded unpopular, ignorant and even hateful speech from criminal prosecution... Unfortunately for all of us, neither the crimes nor the hate will disappear anytime soon. Criminalizing the hate, however, will not eradicate it from our society. Criminalization will instead only further segregate minorities and jeopardize cherished First Amendment freedoms. As tempted as we might be to claim that the hateful should not be allowed to enjoy these freedoms, we know that the best protection for our own speech is the protection that allows those who disagree with us to speak and think freely."
Oct. 30, 1998 - Douglas Lee, JD
Don Feder, JD, Media Consultant, stated during stated a hate crime symposium, transcribed in the Sep. 20, 1999 issue of Insight on the News:
"Other than expressing our disgust, what do hate-crimes laws accomplish here? Certainly not prevention... Hate crimes are an attempt at thought control...
These laws take ordinary offenses (trespass, vandalism, assault) and increase the penalty for motivation... The underlying sentence is punishment for the crime. The additional jail time is retribution for expressing certain ideas. While the ideas may be ugly and evil, even the expression of vile and virulent thoughts is a First Amendment right...
According to this mind-set, widely embraced by the left, dissent from the homosexual agenda generates antigay violence. Thus, refusal to accept the movement's dogma is itself a species of hate crime... Soon, instead of punishing expression that accompanies a crime, we'll be penalizing pure speech. Evangelicals, traditional Catholics, Orthodox Jews, Mormons -- any group that clings to Judeo-Christian morality and isn't willing to knuckle under -- will be a target."
Sep. 20, 1999 - Don Feder, JD
Concerned Women for America's Director of the Culture and Family Institute, Robert H. Knight, in his Sep. 27, 2005 article "'Hate Crime' Laws: an Assault on Freedom," wrote:
"'Hate crime' laws... pave the way for suppression of the freedoms of speech, association and religion... A grandmother walking down the street should have at least as much protection under the law as someone who is leaving a 'gay' bar... But 'hate crimes' laws divide people into racial and other categories...
Liberal activists increasingly invoke such phrases as 'hostile speech' and a 'climate of violence' to describe pro-family opinion on homosexual issues. The net effect is to reclassify legitimate opinion and free speech as 'hate speech' that can be censored... Meanwhile, 'hate crime' laws are being used to silence people who publicly oppose homosexuality...
As the definition of 'hate crimes' expands, practitioners of traditional religion and those who support policies favoring the traditional family increasingly will face legal sanctions."
Sep. 27, 2005 - Concerned Women for America (CWA)
The American Civil Liberties Union (ACLU), in its May 25, 2005 letter in support of the Local Law Enforcement Hate Crimes Prevention Act of 2005, stated:
"The ACLU appreciates the... inclusion of the new evidentiary provision that prevents the hate crimes legislation from having any potentially chilling effect on constitutionally protected speech... It will reduce or eliminate the possibility that the federal government could obtain a criminal conviction on the basis of evidence of speech that had no role in the chain of events that led to any alleged violent act proscribed by the statute...
On its face the hate crime bill punishes only the conduct of intentionally selecting another person for violence because of that person's race, color, national origin, religion, gender, sexual orientation, gender identity, or disability...
The evidentiary provision... will bar only evidence that had no specific relationship to the underlying violent offense... Thus, [it] will not bar all expressions or associations of the accused. It is a prophylactic provision that is precisely tailored to protect free speech."
May 25, 2005 - American Civil Liberties Union (ACLU)
Howard P. Berkowitz, MBA, former National Chair of the Anti-Defamation League, stated in a hate crime symposium, transcribed in the Sep. 20, 1999 issue of Insight on the News:
"Opponents of hate-crimes legislation often will argue that the laws represent the worst aspects of Orwellian thought control and intrude on the sanctity of the First Amendment. These critics erroneously contend that such statutes punish individuals for their beliefs and their speech...
The fact is hate-crimes legislation does not in any way target or punish speech; such statutes punish conduct only. Individuals remain free to express any view about race, religion, sexuality or any other topic. It is only when they act on their prejudices or callously select their victims based on personal characteristics such as race or religion that hate-crimes statutes come into play...
In these increasingly violent times, hate-crimes legislation is a strong and necessary response to combat criminal acts of prejudice and bias. Current hate-crimes laws are both valuable and constitutional. They only punish acts of violence; they neither condemn private beliefs nor chill constitutionally protected speech."
Sep. 20, 1999 - Howard P. Berkowitz, MBA
The Human Rights Campaign (HRC), in its Frequently Asked Question about Local Law Enforcement Enhancement Act (LLEEA) posted on its website (accessed June 14, 2006), stated:
"Hate crimes laws punish violent acts, not beliefs or thoughts - not even violent thoughts. [They do] not punish, nor prohibit in any way, name-calling, verbal abuse or expressions of hatred toward any group even if such statements amount to hate speech. The Act does not punish thought, speech or criticism of another person. It covers only violent actions that result in death or bodily injury.
Doubts about the constitutionality of hate crimes laws were squarely addressed by the U.S. Supreme Court in the early 1990s in two cases, R.A.V. v. City of St. Paul and Wisconsin v. Mitchell. These cases clearly demonstrate that a hate crimes statute may consider bias motivation when that motivation is directly connected to a defendant's criminal conduct. By requiring this connection to criminal activity, these statutes do not chill protected speech nor violate the First Amendment."
June 14, 2006 - Human Rights Campaign (HRC)