Hate is a strong word, it goes beyond mere distaste and disagreement.
The people who left death threats and scared Kathy Sierra out of a planned appearance didn't just hate her. They had no reason to hate a person who writes a blog about computer interfaces. Their hate is for women, and their actions were driven by a hate for all women, and a desire to hurt all women.
The people who called a random pedestrian in Lawrence a "faggot," jumped out of their car and beat him to the ground may not have hated him personally. If the police charge of a hate crime bears out, it will be because of hatred for gay men. When they beat that man, they were trying to beat all gay men, to hurt and scare any and all gay men.
When Don Imus called the Rutgers women's basketball team "nappy-headed hos," I'm sure he bore then no personal animus. His comments still expressed a general hatred for people with skin of a particular color.
Fred Phelps doesn't protest at funerals because he objects to any particular soldier. He just hates, and wants attention.
It's one thing to attack one person. The Rutgers players can defend themselves, they showed that on the court. The police can protect Kathy Sierra and the victim in Lawrence. Crimes that affect a single victim are different than crimes directed at a whole community through a single victim.
Lynching in America and pogroms in Europe were tools designed to repress minority groups. Those tools of hatred run deep in our culture and are hard to fight individually. The black women on the Rutgers team can defend themselves against Imus, but black women in general cannot. Kathy Sierra can put her life back together, but the how can we repair the damage done to female bloggers (and female techies) in general? How do we tell Lawrence's gay community that they are safe? How can families mourn in peace with the Phelps clan shouting obscenities?
Don Imus is fired, and I can't say I'm sorry. I never listened to him, but he has a history of these sorts of comments, and that isn't appropriate, especially for someone who aspires to be taken seriously as a newsmaker. Kathy Sierra is working with people to promote a Blogger Code of Conduct, which will have no influence on anyone who doesn't already want to behave well. Kansas and other states have required buffers around funerals to keep Phelps at a distance.
Congress is currently debating a modification of the federal hate crimes law which would include sexual orientation alongside race, religion, nationality and gender as protected categories. To me, this makes sense. A hate crime is a crime against a community. A beating motivated by bigotry and intended to harm an entire community is a different, much more serious, offense than a beating that originates in barroom beef. It is the difference between a murder and a pogrom.
The argument against hate crimes laws is that, as Rep. Todd Tiahrt puts it, "Hate-crime legislation would require the government to provide more punishment for a given violent crime or physical assault simply because the government decided that the motive for the crime was more heinous than another." He regards the right to beat people because of the color of their skin, their sexual preference, or their gender as one of "our basic liberties." J.D. has a less boorish take.
The problem is that some motives are more heinous, and we judge crimes differently based on motive all the time. Depending on your motive, after you run someone over with a car, you could get charged with anything from capital murder to negligent homicide. Capital murder requires intent and premeditation, negligent homicide requires that you fail to consider the harm that could result from your broken brakes.
Aggravated assault in Kansas is an assault committed "with intent to commit any felony" (or committed with a deadly weapon, or committed while trying to conceal your identity). Assault is a misdemeanor, aggravated assault is a felony. The difference lies in a judgment of motive and thought. I doubt Tiahrt, j.d. or other critics of hate crimes laws would object.
Given Tiahrt's language concerns about "passing laws that infringe upon our basic liberties," it's hard not to think that there is some part of him that wants to distinguish between the right to act on intent to commit a felony (not protected) and the right to act on personal hatred (protected). I confess that I do not see it.
Of course we all have a right to our prejudices and beliefs. I have prejudice against Texas – some call it irrational, others thinks it makes sense. I have every right to that (irrational) distaste, but not to beat up Texans, or to wage a private war against the Lone Star state. As a wise man said, your right to swing your fist ends at my nose. Hate has to have limits also.
The wise man who said, "...a man's right to swing his fist ends where another man's nose begins..: was Oliver Wendell Holmes.
Relatedly, Tiahrt's wish to make a distinction between one's intent to commit a crime and the acting out one's personal bigotries does not make the distinction is real. As per the Law of the Land, we all have a right to our bigotries and petty hatreds as much as we do any other set of beliefs. One does not, however, have right to cause
the injury or death of other people in the service of those beliefs.
In essence, there is no right to act on one's personal hatred if one's actions would injure or kill another person.
I have to disagree with Josh, here. I think hate crime laws are well meaning, but given the fallibility and prejudices of people, and the limitations of our justice system, I think they are going to be poorly implemented (at best), and prone to abuse.
If I get into a bar fight with a man, assoult charges might be filed against one or both of us. Now if that same bar fight happens and our skins also happen to be of a different color, how easy would it be to be charged with a hate crime? How evenly will it be applied, would both parties in this proverbial bar fight now be charged with a felony because they slung racial insults at each other long after they were past the point where a fight was going to occur anyway?
Bad idea if you ask me. I think our current laws sufficiently cover the crimes. The system is n't fair yet, but I don't think making more complicated laws is the answer.
I agree with you, Fastlane, but I'll add another reason. Hate crimes are based not on the crimes themselves, but on the thoughts behind them. This doesn't seem too far from Orwell's thoughtcrime, wherein thoughts that the state doesn't approve of are themselves criminal acts. This strikes me as a bit, well, unamerican, not in the HUAC way, but in the "you're either with us or you're with the terrorists" way. There's a reason the ACLU also defends the speech of white supremacists.
D&F: I think I've shown that we punish people for what they are thinking all the time. It is the difference between a needle in the arm/life in prison and an acquittal on self-defense. Did the killer believe his life was in peril? If so, it's self-defense. If, on the other hand, he thought out how he'd kill the victim, it's capital murder.
White supremacists are entitled to speak, and I support the ACLU for defending them. They do not have a right to use violence to advance their cause. I think that violence directed at a community is of a different nature than violence directed at an individual, just as there is a difference between carefully planning a murder and running someone over while driving drunk. We judge intent all the time.
Hate crimes are defined by their intent to terrorize a segment of society. Lynchings are a form of terrorism, an act of violence directed at one victim but used to scare everyone with skin of the same color or a sexual attraction to the same gender.
It's true that the justice system isn't perfect, but that isn't a reason to let certain crimes get a free pass, nor to make it less just. Punishing a crime as a hate crime is a way to show the entire terrorized community that they are protected, and it shows those who would use crime to divide society that that behavior isn't acceptable.
There's a difference between getting into a bar fight because you walk into a sports bar and start insulting the Jayhawks and getting into a bar fight because you and your skinhead friends walk into a gay bar and start whaling on people. Different crimes deserve different punishments.
Demonstrating intent beyond a reasonable doubt is challenging and I don't have any sense that it's done lightly.