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Hate Crimes Act Doesn’t Violate Freedom of Speech Rights

Some people object to the new Hate Crimes Prevention Act because they say it restricts First Amendment free speech rights.

For example, Pat Robertson said last week in a TV .”

But actually the law has no such effect.

Sherry Colb, law professor at Cornell University, talks about the difference between expressing hate and committing a crime based on hate. While the expression of hate may be covered by the First Amendment, committing a crime based on that hate is not:

The aspect of conduct that permissible hate crime legislation targets is not the expression of ideas but the driving motivation behind the crime, because some motivations are rightly considered more culpable than others.

The professor provides a couple of examples that help explain:

To take one example, consider a person who attacks a Catholic man and also hates Catholic men, but who selects his victim for non-religious reasons, such as the latter's cutting him off in traffic. Such a perpetrator will not (and may not) be punished for his hatred of Catholic men (To punish him for that would represent the prosecution of “thought crime.”) Now consider another person, who attacks a Catholic man because he is Catholic. The latter person is actually doing something quite different from the former – and many would say that he is doing (and not just thinking) something worse.

Even the Act itself goes out of its way to protect First Amendment rights. The law says that it does not “prohibit any constitutionally protected speech, expressive conduct or activities” nor “allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs.” This language narrows the law's effect to crimes motivated by hate, not the expression of hate itself.

So if the hate crimes law doesn't punish thoughts or the mere expression of hate, then why do some people oppose the law? Professor Colb thinks it's because of their own personal biases:

Those who dislike gay people . . . might not like the idea of singling out crimes committed on the basis of the victim's perceived homosexuality for more severe punishment. Such opponents might, in fact, view an action that is taken out of animus toward gay people to be understandable and less worthy of condemnation than other similar crimes.

Whatever their reason, opponents of the Hate Crimes Act make arguments unsupported by the actual law.

[Cross-posted at the Gay Couples Law Blog, which discusses same sex family law, estate planning, and taxes.]

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Gideon Alper

Gideon Alper