Sept 26, 2005
Declan McCullagh wrote:
By way of background, here's a cogent argument against "hate crime" legislation.
There is no doubt that it is an argument; whether it is cogent is a matter of opinion.
Let's examine it.
1. "All of the violent acts that would be prohibited under the proposed bill are already crimes under state law [therefore] federal legislation is unnecessary."
Quite so. Violent acts are already prohibited. But the intent of hate crime legislation is to counter acts or aspects of those acts that are not violent, and therefore, not covered under existing law. This first argument therefore misrepresents the nature and purpose of hate crime legislation.
2. "The so-called 'Hate Crimes Prevention Act' is not going to prevent anything. Any thug that is already inclined to hurt another human being is not going to lay down the gun or knife because of some new law passed by Congress."
This argument presumes that intent and willingness to commit a violent act is a static and unchanging characteristic of a person, impermeable to external influences, which is a dubious assumption at best. Moreover, it considers only the existing population of thugs and murderers and concludes (somewhat tautologically) that they would be thugs and murders no matter what. It does not contemplate the possibility that new thugs and murderers may be created by the commission of hate crimes, nor even that this is typically the intent of hate crimes.
One might characterize a hate crime this way: it is an attempt, through act or deed, to convince someone else to commit a crime of violence. Even if this attempt has a low probability of success, if exercised on a large enough population the effect becomes almost certain. Therefore, such attempts do in fact, in some situations, cause mayhem and violence.
Even if the people convinced to undertake acts of violence would have done so in any case, it is possible (indeed, likely) that hate crimes would convince them to commit more acts of violence than they otherwise would, and to commit more serious crimes of violence. Moreover, there is ample evidence from around the world - from Nazi Germany, from Rwanda, from former Yugoslavia - that such attempts will also convince previously peaceful people to commit their first act of violence.
3. "The whole concept of 'hate crimes' is fraught with definitional difficulties... If the athletes had been the sole targets of the school shooting, such a crime would not have been considered a hate crime."
The specific example cited by the author is misleading. No external agenciy attempted to convince the murderers to target jocks. Moreover, there is no evidence that the murderers expected their targeting of jocks to result in other people targeting jocks. Nor is there any evidence of an organized campaign targeting jocks. Nor, given existing social beliefs and prejudices, could such a campaign have any reasonable chance of success.
That said, were any of these conditions fulfilled, then advocacy of violence against jocks would indeed be a hate crime. What makes the current list of subjects - people of given race, nationality, sexual orientation, etc - the subject of hate crime legislation is the observation that they have been the targets of organized attempts to incite violence and that these attempts have been successful in sufficient numbers so as to warrant especial mention.
There is nothing inherent in the characteristic motivating hate that makes it the subject of hate crime legislation. You cannot examine the 'state of being a Jew' or 'the state of being black' and conclude thereby that we should have special laws countering the advocacy of hatred against these groups. The evidence for the need for such laws is in the crimes themselves - people target blacks, people target Jews, for whatever reason: this is empirically observable and measurable. And were similar observations made with respect to hate against athletes, similar laws would be required.
4. "Proponents of hate crime legislation believe that such laws will increase tolerance in our society and reduce intergroup conflict. I believe hate crime laws may well have the opposite effect. That's because the men and women who will be administering the hate crime laws (e.g. police, prosecutors) will likely encounter a never-ending series of complaints..."
Hate crime legislation already exists in nations around the world, for example, in Canada. While complaints about the administration of the law do exist (as they do regarding the administration of any law) there is no evidence that increased intolerance results. Indeed, most people regard nations such as Canada, which has hate crime legislation, as more tolerant than nations that do not. So empirically, there is little or no support for this contention.
5. "Hate crimes legislation will take our law too close to the notion of thought crimes. It is, of course, true that the hate crime laws that presently exist cover acts, not just thoughts. But once hate crime laws are on the books, the law enforcement apparatus of the state will be delving into the accused's life and thoughts in order to show that he or she was motivated by bigotry..."
This argument misrepresents the constitution of a hate crime as being 'Act plus thought'. The suggestion is that, over and above the act, what is being punished is the thought. The author also suggests in this argument that we may descend a slippery slope such that only the thought, even without an attendant act, is punished.
But a hate crime is not merely 'act plus thought'. It is, rather, an act intended to 'send a message' where the purpose of the message is, on the one hand, to instil a climate of fear in the target group, and on the other hand, to convince others to commit the same act. The purpose of purpose of looking at books, magazines, computer files and the like is to detect instances of that message.
And it is important to understand part of a hate crime over and above the act of violence is not merely a thought; indeed, it is not even merely the expression of a thought. A hate crime is an instance of what is commonly known as a 'speech act' - that is, the person in question does not merely hold or express a view, but rather, employs communication (including voice, print and computer messages) in order to commit an act (specifically, to convince other people to commit similar crimes).
Speech acts are not rare and mysterious; they are everyday events, easily identified. When a person says 'I do' at a wedding, he is commiting a speech act - by virtue of uttering some words, he is entering into a contract. A general who commands his troops to 'Fire!' is similarly committing a speech act. By virture of uttering the words, he is causing an event, in this case, the firing of a gun by a soldier. A person who yells 'Fire!' in a movie theatre is once again not merely uttering an opinion, he is acting in such a way as to cause people to rush to the exits.
Speech acts have consequences, and (through jurisprudence and precedent) people are morally and legally responsible for the consequences of their speech acts - that is why we have legislation concerning alimony, war crimes, and criminal negligence.
A hate crime is a speech act where the utterer intends the act to be successful, that is, to result in crimes of violence against the target of the hate. In many cases, a hate crime also involves an element of violence - the utterer is speaking through both words and deeds. That is why merely punishing the deed is not enough. Part of the act consists of uttering the words, and the commission of this speech act is an offense for which the criminal must be held responsible over and above the act of violence.
To wrap up...
We know that people can cause hate - and therefore, crimes of violence against target groups - by expressing hate. History is filled with examples. And we know that some people express such hate with the specific purpose of causing such violence. To fail to take note of and address such acts in criminal law is tantemount to taking the point of view that certain crimes of violence are acceptable in society, and that the causing of such crimes not against the laws and morals of society.
It has been my observation that nations that do not have, or do not enforce, hate crime legislation are nations that, both internally and externally, breed more hate and more violence. We find in such societies not only an increased level of mistrust and holstility, not only an increased tendency for violence and strife, but also very commonly a tendency on the part of that society to export instances of its prejudices and hate, to too easily allow itself new types of ate and new expressions of hate.
Such a country, for example, is able very easily to dehumanize the populations of other nations in which it is involved, to refer to all inhabitants of such nations, whether freinds or foe, as 'gooks' and to treat them as less than human, to fail to distinguish between members of a population, to too easily slide into practices that involve the indiscriminate torture and killing of those inhabitants.
For legislation, too, constitutes a type of act, and the sort of behaviour a nation fosters or prohibits in its laws, is the sort of behaviour it can expect, in the long run, from its citizens.
By way of background, here's a cogent argument against "hate crime" legislation.
There is no doubt that it is an argument; whether it is cogent is a matter of opinion.
Let's examine it.
1. "All of the violent acts that would be prohibited under the proposed bill are already crimes under state law [therefore] federal legislation is unnecessary."
Quite so. Violent acts are already prohibited. But the intent of hate crime legislation is to counter acts or aspects of those acts that are not violent, and therefore, not covered under existing law. This first argument therefore misrepresents the nature and purpose of hate crime legislation.
2. "The so-called 'Hate Crimes Prevention Act' is not going to prevent anything. Any thug that is already inclined to hurt another human being is not going to lay down the gun or knife because of some new law passed by Congress."
This argument presumes that intent and willingness to commit a violent act is a static and unchanging characteristic of a person, impermeable to external influences, which is a dubious assumption at best. Moreover, it considers only the existing population of thugs and murderers and concludes (somewhat tautologically) that they would be thugs and murders no matter what. It does not contemplate the possibility that new thugs and murderers may be created by the commission of hate crimes, nor even that this is typically the intent of hate crimes.
One might characterize a hate crime this way: it is an attempt, through act or deed, to convince someone else to commit a crime of violence. Even if this attempt has a low probability of success, if exercised on a large enough population the effect becomes almost certain. Therefore, such attempts do in fact, in some situations, cause mayhem and violence.
Even if the people convinced to undertake acts of violence would have done so in any case, it is possible (indeed, likely) that hate crimes would convince them to commit more acts of violence than they otherwise would, and to commit more serious crimes of violence. Moreover, there is ample evidence from around the world - from Nazi Germany, from Rwanda, from former Yugoslavia - that such attempts will also convince previously peaceful people to commit their first act of violence.
3. "The whole concept of 'hate crimes' is fraught with definitional difficulties... If the athletes had been the sole targets of the school shooting, such a crime would not have been considered a hate crime."
The specific example cited by the author is misleading. No external agenciy attempted to convince the murderers to target jocks. Moreover, there is no evidence that the murderers expected their targeting of jocks to result in other people targeting jocks. Nor is there any evidence of an organized campaign targeting jocks. Nor, given existing social beliefs and prejudices, could such a campaign have any reasonable chance of success.
That said, were any of these conditions fulfilled, then advocacy of violence against jocks would indeed be a hate crime. What makes the current list of subjects - people of given race, nationality, sexual orientation, etc - the subject of hate crime legislation is the observation that they have been the targets of organized attempts to incite violence and that these attempts have been successful in sufficient numbers so as to warrant especial mention.
There is nothing inherent in the characteristic motivating hate that makes it the subject of hate crime legislation. You cannot examine the 'state of being a Jew' or 'the state of being black' and conclude thereby that we should have special laws countering the advocacy of hatred against these groups. The evidence for the need for such laws is in the crimes themselves - people target blacks, people target Jews, for whatever reason: this is empirically observable and measurable. And were similar observations made with respect to hate against athletes, similar laws would be required.
4. "Proponents of hate crime legislation believe that such laws will increase tolerance in our society and reduce intergroup conflict. I believe hate crime laws may well have the opposite effect. That's because the men and women who will be administering the hate crime laws (e.g. police, prosecutors) will likely encounter a never-ending series of complaints..."
Hate crime legislation already exists in nations around the world, for example, in Canada. While complaints about the administration of the law do exist (as they do regarding the administration of any law) there is no evidence that increased intolerance results. Indeed, most people regard nations such as Canada, which has hate crime legislation, as more tolerant than nations that do not. So empirically, there is little or no support for this contention.
5. "Hate crimes legislation will take our law too close to the notion of thought crimes. It is, of course, true that the hate crime laws that presently exist cover acts, not just thoughts. But once hate crime laws are on the books, the law enforcement apparatus of the state will be delving into the accused's life and thoughts in order to show that he or she was motivated by bigotry..."
This argument misrepresents the constitution of a hate crime as being 'Act plus thought'. The suggestion is that, over and above the act, what is being punished is the thought. The author also suggests in this argument that we may descend a slippery slope such that only the thought, even without an attendant act, is punished.
But a hate crime is not merely 'act plus thought'. It is, rather, an act intended to 'send a message' where the purpose of the message is, on the one hand, to instil a climate of fear in the target group, and on the other hand, to convince others to commit the same act. The purpose of purpose of looking at books, magazines, computer files and the like is to detect instances of that message.
And it is important to understand part of a hate crime over and above the act of violence is not merely a thought; indeed, it is not even merely the expression of a thought. A hate crime is an instance of what is commonly known as a 'speech act' - that is, the person in question does not merely hold or express a view, but rather, employs communication (including voice, print and computer messages) in order to commit an act (specifically, to convince other people to commit similar crimes).
Speech acts are not rare and mysterious; they are everyday events, easily identified. When a person says 'I do' at a wedding, he is commiting a speech act - by virtue of uttering some words, he is entering into a contract. A general who commands his troops to 'Fire!' is similarly committing a speech act. By virture of uttering the words, he is causing an event, in this case, the firing of a gun by a soldier. A person who yells 'Fire!' in a movie theatre is once again not merely uttering an opinion, he is acting in such a way as to cause people to rush to the exits.
Speech acts have consequences, and (through jurisprudence and precedent) people are morally and legally responsible for the consequences of their speech acts - that is why we have legislation concerning alimony, war crimes, and criminal negligence.
A hate crime is a speech act where the utterer intends the act to be successful, that is, to result in crimes of violence against the target of the hate. In many cases, a hate crime also involves an element of violence - the utterer is speaking through both words and deeds. That is why merely punishing the deed is not enough. Part of the act consists of uttering the words, and the commission of this speech act is an offense for which the criminal must be held responsible over and above the act of violence.
To wrap up...
We know that people can cause hate - and therefore, crimes of violence against target groups - by expressing hate. History is filled with examples. And we know that some people express such hate with the specific purpose of causing such violence. To fail to take note of and address such acts in criminal law is tantemount to taking the point of view that certain crimes of violence are acceptable in society, and that the causing of such crimes not against the laws and morals of society.
It has been my observation that nations that do not have, or do not enforce, hate crime legislation are nations that, both internally and externally, breed more hate and more violence. We find in such societies not only an increased level of mistrust and holstility, not only an increased tendency for violence and strife, but also very commonly a tendency on the part of that society to export instances of its prejudices and hate, to too easily allow itself new types of ate and new expressions of hate.
Such a country, for example, is able very easily to dehumanize the populations of other nations in which it is involved, to refer to all inhabitants of such nations, whether freinds or foe, as 'gooks' and to treat them as less than human, to fail to distinguish between members of a population, to too easily slide into practices that involve the indiscriminate torture and killing of those inhabitants.
For legislation, too, constitutes a type of act, and the sort of behaviour a nation fosters or prohibits in its laws, is the sort of behaviour it can expect, in the long run, from its citizens.
