Melissa Suarez is a research associate for the Pope Center for Higher Education Policy, Research Triangle Park, North Carolina.
The killing some months ago of Matthew Shepard has brought to the forefront of debate the idea that a federal law is needed to protect people against “hate crimes.” Proponents want the law to punish individuals who target others because of race, sex, religion, disability, or sexual orientation.
The murder of Matthew Shepard of course is tragic. That it was likely committed with hatred for his sexual orientation is indeed also tragic. A federal law against hate crimes, however, could never be constitutional nor could it protect likely victims of such crimes.
The U.S. Supreme Court has already unanimously struck down a hate-crime law. R.A.V. v. City of St. Paul involved a city ordinance in St. Paul, Minnesota, that prohibited the display of a symbol that arouses “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”
Several white youths were charged with violating that ordinance when they burned a cross on the property of a black family. The flaw with the ordinance was that it was neither content-neutral (concerned not with the speech’s content, but where, when, or how it takes place) nor viewpoint neutral. Writing for the Court, Justice Antonin Scalia said the ordinance was invalid because “it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”
Content and viewpoint neutrality will derail future hate-crime laws as well. The best alternative would be to heed Scalia’s words, when he wrote that governments have no authority “to license one side of a debate to fight free-style, while requiring the other to follow the Marquis of Queensbury Rules.”
Campus Speech Codes
Consider how similar legislation, specifically “hate speech” codes at colleges and universities, have fared. Campus speech codes that punish students for speech, slurs, or epithets that relate to a person’s race, gender, religion, or sexual orientation are prime candidates for lawsuits because they, too, lack content and viewpoint neutrality.
The most famous incident involving hate speech began in January 1993 at the University of Pennsylvania. Five black, female students claimed they were victims of racism after a fellow student, Eden Jacobowitz, who was interrupted in his studying by their boisterous behavior outside his window, yelled at them, “Shut up, you water buffalo.” Jacobowitz was charged with violating Penn’s speech code, which prohibited racial harassment.
The administrative judicial officer in charge of his case, in a telling question, asked him if he was “having racist thoughts” when he used the term “water buffalo,” because, the administrator said, a water buffalo is a dark, African animal. Jacobowitz vehemently denied his remarks were racist, saying that the students’ noise and not their race prompted his remark. Several scholars rushed to Jacobowitz’s defense, including black professors at Penn who said there were no racial connotations behind the term “water buffalo.” Others pointed out that the water buffalo is found not in Africa but in Asia.
Nevertheless, because of the code, Jacobowitz’s fate depended on the black students’ interpretation of his remark. They decided it was racist, so the university charged Jacobowitz with racial harassment. The university eventually dropped the charges.
Another problem that hate-speech codes have, and hate-crime laws inevitably would have, is related to their lack of viewpoint neutrality. These codes are not all-inclusive. They are usually so vaguely worded that the ban is generally on hate speech only by speakers of a certain gender and certain races, sexual orientations, religions, or handicaps.
Sheldon Hackney, who was president of the University of Pennsylvania during the “water buffalo” incident, blatantly admitted the codes’ selectivity. When someone asked Hackney if “racial harassment” would include “someone [who] called a black with white friends an ‘Uncle Tom’ or an ‘Oreo,’ or if someone called a white person a ‘[expletive] fascist white male pig?’” Hackney said no.
Punishing Thoughts, Not Acts
A federal hate-crime law would also threaten selective enforcement. Such a law could easily be used to protect only certain groups and punish only certain crimes as hate crimes, thereby making some forms of “hate” more punishable than others.
The alternative would be to punish all hate crimes equally, which would be impossible. It would also be superfluous. For example, in Shepard’s case, there are already laws against murder, and the penalties are greater than those of any proposed hate-crime legislation.
Nevertheless, many people argue that a federal law against hate crime could possibly stimulate education about racism, sexism, homophobia, and the like. It would also, they say, probably make minorities feel more protected. It’s known in some circles as “thought control.”
Consider the success of hate-speech codes in this area. At many institutions, students who violate the speech code are required to take classes on the dangers of prejudice and stereotypes. At UCLA, for example, violators of the university’s anti-harassment policy usually must either perform several hours of community service or “become educated” about harassment. One student accused of sexual harassment had to establish a program to educate his fraternity about sexual harassment and write a paper for the dean of students on heterosexism and the origins of programs that combat sexual harassment. Similar punishments are handed down at other universities.
One wonders what kinds of “community service” and “education” violators of a federal hate-crime law would be subjected to. After the federal government charged an individual with having the wrong thoughts (which is already a blatantly unconstitutional action), would it then force him to change his mind? The last government to do that was Ingsoc, in George Orwell’s Nineteen Eighty-Four.
Supporters of hate-crime laws also argue that federal legislation might heighten awareness about prejudices and stereotypes. More important, they say, stiffer penalties for those who commit such crimes would deter them to begin with. How could they serve as a deterrent when the act itself is already a crime?
A federal hate-crime law would also raise questions of double jeopardy. If, for instance, a black person’s accused assailant is acquitted at the state level, he could be retried for the same crime in federal court under the hate-crime law.
We can never know for certain the motive behind a person’s speech or action. For that and other reasons, laws designed to punish the thought behind the crime are dangerous and inappropriate in a free society.