Michael Lieberman insists that hate crime laws do not criminalize speech or thought. Let’s examine this position first, as much flows from it.
As Lieberman points out (and as I noted in my article), U.S. hate crime laws indeed require an underlying violent crime. Speech or belief alone is not sufficient. But of course such laws do criminalize certain types of speech or belief. We can prove this with simple algebra. Let x equal the penalty for a violent crime with no bias motivation. Let y equal the penalty for the identical physical crime, but with a bias motivation. Subtract x from y.
If there is a remainder, what does it represent? The criminal liability of speech or belief under circumstances of violence. Note that it is the ideological content of the bigoted speech or belief that confers this liability, rather than any role it played in contributing to the violence through incitement or conspiracy.
Lieberman argues that bias crimes call for greater punishment than the underlying physical crime for several reasons: they are often more violent than non-bias crimes; they have a unique emotional impact on the victims; and they constitute intimidation of entire communities.
I do not understand what Lieberman’s first point has to do with my article, as I explicitly wrote that the law can, does, and should consider the level of criminal violence when charging and sentencing. It does not have to resort to weighing thought. I am also puzzled by his invocation of the damage done by racial intimidation such as cross-burning, when, again, I specifically endorsed the idea of anti-intimidation statutes (which would cover things like cross-burning) so long as they are content-neutral. The focus should be on the intimidation, not the motivation.
Lieberman presents the heightened emotional trauma of hate crimes as a factual matter. This is debatable. There are studies that support his position and studies that do not. In 1994, Arnold Barnes and Paul Ephross attempted to objectively measure victim trauma from bias crimes and found little difference between this kind of trauma and that of victims of other personal crimes. But whether or not Lieberman is right in general, there is undoubtedly great individual variation in response to emotional trauma of all kinds, including bias and non-bias crime; and heightened emotional trauma in non-bias crimes does not carry automatically enhanced penalties under a separate statute, although it can influence sentencing. Accepting Lieberman’s argument that greater harm demands greater penalties, in order for a court to justly assign punishment it would have to address each specific case—much as it would address the level of physical violence in each case, but with a far greater problem of measurement.
I suggest that this is not an appropriate role for the criminal law (civil law is another matter). I am not entirely comfortable with this position. It seems to defy moral feeling and solidarity with the victim. But I believe that automatically enhanced penalties stemming from highly generalized statements about emotional trauma and applied in bias cases (but not in other cases) simply won’t do.
Lieberman writes, “Hate crimes physically wound and may effectively intimidate other members of the victim’s community, leaving them feeling terrorized, isolated, vulnerable, and unprotected by the law…. Hate crimes are message crimes.” But it is the means of delivery, not the message, that properly constitutes the crime. As for the vulnerability of the victims’ communities, I think this might be better addressed by investing resources in the ability and motivation of the local criminal justice system to protect every person within its jurisdiction to the greatest extent possible. Indeed, should we ask or expect less? Good-faith, true, and equal protection would alleviate feelings of vulnerability and isolation in victims’ communities far more effectively than charging criminals on the basis of their thoughts. It would also render the criminals’ “messages” moot.
If a conspiracy to target any particular community is linked to a bias crime, by all means prosecute it as any other terrorist conspiracy would be prosecuted. But it has to be an actual conspiracy, involving specific people consciously planning an attack—not a theoretical attack by persons unknown to the immediate perpetrator that might be carried out against an unknown victim at an unknown location at some unknown time in the future.
LIEBERMAN IS RIGHT about my misstatement of the Wisconsin hate crimes statute under which Todd Mitchell received an enhanced penalty. I regret and apologize for the error. However, I believe that I correctly described the statute’s meaning and effect, if not its actual content; for how would the intentional targeting of a victim in a protected category be known, if not for the perpetrator’s words and attributed thoughts? I note that the Wisconsin Supreme Court, in throwing out the statute, understood the core issue much as I did. The court found that it “violates the First Amendment directly by punishing what the legislature has deemed to be offensive thought….[T]he Wisconsin legislature cannot criminalize bigoted thought with which it disagrees” (169 Wis. 2d). Unfortunately, the U.S. Supreme Court did not see it this way.
Lieberman writes, “In 2008, 13,690 police agencies reported 7,783 hate crimes.” I don’t want to minimize the issue—one bias crime is one too many. But we are a nation of three hundred million. This is a low incidence rate. And Lieberman’s regard for the FBI’s hate crimes report strikes me as misplaced. Civil rights organizations have for years been touting every increase in reported bias crime as a sign that violent bigotry is on the rise in this country, but the numbers more likely reflect increases in the number of reporting agencies and heightened awareness of such crimes. Reporting agency participation varies by region, as do agency resources and commitment to reporting. Despite Lieberman’s assurance that bias must be demonstrated beyond a reasonable doubt, such judgments are often highly subjective and vary with local attitudes and the personality of the investigating officer. It is not so much that the FBI’s numbers are high or low. It is that they are arbitrary.
What is the actual harm done by hate crimes laws? Lieberman says, correctly, that I never addressed this. I did not do so because I thought the matter too obvious. Perhaps this was a mistake. So let me explain it: hate crimes laws empower magistrates to investigate, judge, and punish the contents of an individual’s speech and beliefs, quite separately from any legitimate consideration of incitement or conspiracy. This rearranges the understanding vis-à-vis the state under which an individual must live in the United States, and calls into doubt our legal and cultural commitment to a free society. I consider this an actual, immediate harm that also constitutes an ever-present opportunity for greater harm. I urge Lieberman to ponder the possibility that this precedent may not always be limited to situations in which he approves of it.
Finally, Lieberman says that Canadian-style restrictions on hate speech could never happen here because the First Amendment would forbid them. But the Constitution is what the Supreme Court says it is, and the Supreme Court has allowed hate crimes statutes to stand—even though they undermine the First and Fourteenth Amendments; even though the mathematical expression with which I opened this rebuttal is, in fact, correct. I am therefore not so sanguine as Lieberman about the invulnerability of the Constitution to arguments from perceived necessity. We are already closer to the bottom than the top of that particular slippery slope.
Jesse Larner is the author of Mount Rushmore: An Icon Reconsidered (Nation Books/Thunder’s Mouth Press, 2002) and Forgive Us Our Spins: Michael Moore and the Future of the Left (Wiley & Sons, 2006). He can be reached at firstname.lastname@example.org.