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Monday, May 09, 2005

Hate Crimes Legislation - Punishing Thought and Speech?

The Capital Times contains an op-ed entitled, "Hate crime laws at odds with free thought, speech." The author writes,
Anyone who objects to government trying to criminalize thoughts and speech always has a tough time explaining why it's a bad idea to prosecute so-called hate crimes.
Much has been written about hate crimes legislation in academic texts, law review journals and the editorial pages of newspapers. A principal argument against the passage of hate crimes legislation is the main point of this particular op-ed: we should not punish people for their thoughts or speech; we should only punish conduct. In other words, an assault on a Muslim-American should be punished as simple assault even if there is a colorable claim that the victim was selected on the basis of his or her religion.

Briefly, in response, one may want to consider the following: first, American law already "punishes" people for their thoughts. For example, a crime generally requires mens rea, which is defined as "the state of mind indicating culpability which is required by statute as an element of a crime."Mens rea literally means "guilty mind." Second, free speech, while a treasured right, is not absolute. There are well-established exceptions to the First Amendment guarantee, including "fighting words", which are "words intentionally directed toward another person which are so nasty and full of malice as to cause the hearer to... incite him/her to immediately retaliate physically." Whether hate crimes should exist as another exception to free speech or as a strand of the fighting words doctrine has been the subject of considerable debate; however, to assert that something cannot be punished by law simply because speech is implicated is to ignore bedrock American legal principles. Third, hate crimes legislation does not punish speech alone or speech in the absence of an act; it punishes a particular brand of conduct - conduct that was directed at a person because of their immutable characteristics. Fourth, society attaches penalties to certain conduct in order to make it more costly to commit, in other words to discourage certain behavior. Society may legitimately decide that crimes committed against people because of their race, national origin, ethnicity, religion, sexual orientation, or gender are worthy of additional punishment due to the destructive effect it has on the victim itself, members of that particular group, and to the fundamental American virtue of diversity - an effect that goes beyond the mere impact of a simple assault, battery, or attempted murder.

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