Senate Hate Crimes Bill Threatens First Amendment

There are inherent First Amendment and equal protection issues with any "hate crime" legislation as I pointed out when Eric Holder started aggressively pushing Congress for passage of a new bill. That said, if you are going to enact such laws, they must be targeted, rational and designed to effect the result desired and not any other. Such laws should not be vague and expansive, should not be able to be wielded by prosecutors as selective bludgeons and should not infringe on First Amendment rights to free speech and association.

Late Thursday night, the Senate passed a Hate Crimes Bill that arguably violates all of the above.

People attacked because of their sexual orientation or gender would receive federal protections under a Senate-approved measure that significantly expands the reach of hate crimes law.

The Senate bill also would make it easier for federal prosecutors to step in when state or local authorities are unable or unwilling to pursue hate crimes.

"The Senate made a strong statement this evening that hate crimes have no place in America," Senate Majority Leader Harry Reid, D-Nev., said after the chamber voted Thursday to attach the legislation as an amendment to a $680 billion defense spending bill expected to be completed next week.

The House in April approved a similar bill and President Barack Obama has urged Congress to send him hate crimes legislation, presenting the best scenario for the measure to become law since Sen. Edward Kennedy, D-Mass., first introduced it more than a decade ago.

According to the ACLU however, the Senate botched the job:

The Senate late Thursday passed an amendment as part of the Department of Defense Authorization bill that would give the federal government new authority to prosecute certain violent acts based on race, color, national origin, religion, gender, sexual orientation, gender identity and disability. However, the Senate version of the hate crimes bill lacks the strong protections for speech and association included in legislation passed by the House of Representatives in June. The American Civil Liberties Union believes that without the speech and association protections included in the House bill, the Senate hate crimes legislation could have a chilling effect on constitutionally protected speech and membership.

The following can be attributed to Christopher Anders, ACLU Senior Legislative Counsel:

“It has been our experience that the fight for better and stronger civil rights protections is more successful when free speech and association are protected along the way. Fierce protection of free speech rights has historically created the space for the improvement of civil rights protections. Unless amended to block evidence of speech and association not specifically related to a crime, the Senate hate crimes amendment could chill constitutionally protected speech and association. An otherwise unremarkable violent crime should not become a federal hate crime simply because the defendant visited the wrong website, belonged to a group espousing bigotry, or subscribed to a magazine promoting discriminatory views, however wrong and repugnant those beliefs may be. We urge Congress to instead adopt the House version of the hate crimes bill, which protects both civil rights and free speech and association.”

The actual bill passed is S 909 and it passed 63-28. The better House version is H.S. 1913. Basically, the upshot is that the scope of the legislation is so broad that it arguably can be used to criminalize and potentially prosecute protected free speech and association. This is a very real fear, witness how fast one lobby, the fundamentalist religious sect, went to work on the issue; they had an amendment tacked on prior to allowing the bill to reach a vote:

The amendment, which was introduced by Senator Sam Brownback (R-Kan.), essentially clarifies that speech from the pulpit, electronic or otherwise, remain protected unless its intent was to cause violence.

The amendment says that nothing "shall be construed or applied in a manner that infringes the rights under the First Amendment to the Constitution of the United States, or substantially burdens any exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, association, if such exercise of religion was not intended to 1) plan or prepare for an act of physical violence or 2) incite an imminent act of physical violence against another."

So the lethal right to life zealots will bath themselves in the trappings of the church and march on. No such protections for other groups though; in fact, the Senate version arguably expands the ability to use the legislation as a selective tool. The main provision contained in the House version the ACLU is complaining of being omitted from the Senate bill passed last night is as follows:

Evidence of expression or association of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing the impeachment of a witness.

Interestingly enough, this provision was contained in the original Senate draft of the legislation in 2007. The ACLU feels the language is necessary to block admissibility of evidence of speech and association not specifically related to a crime, and that the legislation without such language could chill constitutionally protected speech and association. How did it come to be removed? By relentless lobbying by the Department of Justice (Hey isn’t that Eric Holder guy over there?). From a July 14 ACLU letter to Senators:

Although the Justice Department has argued that it usually avoids attempting to introduce evidence proving nothing more than that a person holds racist or other bigoted views, it has lobbied hard this year against having the Senate include the House-passed speech and association protections in the Senate bill. The Justice Department is specifically seeking to use evidence of a person’s speech or association even if the evidence does not specifically relate to the offense.

The problem today is that there is an increasing focus on “combating hate,” fighting “hate groups,” and identifying alleged perpetrators by their membership in such groups–even in the absence of any link between membership in the group and the violent act. Those arguments are very different from the arguments made in support of the criminal civil rights statute when it passed as an important part of the historic Civil Rights Act of 1968.

There is a danger that–after years of debate focused on combating “hate”–courts, litigants, and jurors applying a federal hate crime statute could be more likely to believe that speech-related evidence that is unrelated to the chain of events leading to a violent act is a proper basis for proving the intentional selection element of the offense. The House-passed evidentiary provision would stop the temptation for prosecutors to focus on proving the selection element by showing “guilt by association” with groups whose bigoted views we may all find repugnant, but which may have had no role in committing the violent act.

The ACLU is exactly correct here, the provision, as elegantly brief as it is, is critical. It is my experience that prosecutors use hate crimes statutes much more as leverage to force plea agreements and prove defendants guilty simply on the basis of non-conforming speech and membership in gangs, fringe political groups and the like than they do for the righteous purpose intended. The DOJ is point blankedly saying that is exactly what they desire to do and the Senators allowing this are carrying their ill-conceived water.

Congressmen Conyers, Scott and Frank have vowed to keep the language included in any final hate crimes legislation, they deserve accolades for their efforts, and the DOJ and Senate deserve jeers for theirs. And there is another bastardization of the process in the offing too. On Monday, Senator Jeff Sessions is having his amendment to include the death penalty added to the penalty provisions of the Senate Hate Crimes Bill voted on.

Quite frankly, it is arguable whether hate crimes laws are appropriate in the first instance, but if they are to exist, they must not be allowed to be tools of selective prosecution and prosecution of thought and status crimes, and there is no need for the conservative fixation on the death penalty to be involved either.

  1. sgwhiteinfla says:

    I have a question. Isn’t this an amendment on the bill that President Obama has vowed to veto because it includes funding for the F22? If so is it possible that the Senate didn’t push hard for the protections needed in the amendment because they know its going to get vetoed? I don’t know but I haven’t really seen any grand pronouncements about passing the amendment like I would have expected to if they were really proud of getting it passed in the Senate. Then again I could of course be all wrong about this.

    • belewlaw says:

      My understanding is that it is on the Defense Authorization bill, which is likely to be vetoed if the F-22 funding stays in. The authorization, unlike the appropriations bill, is not essential legislation, so there may be a scenario in which the bill gets vetoed or dies in conference.

  2. Rayne says:

    Wonder whether the entire point behind insertion of the text which could criminalize and prosecute protected free speech and association is a feature, not a bug.

    In other words, the bill is so bad it will be shot down by the courts if it happens to pass, leaving no hate crime protections at all.

    • bmaz says:

      I do not think so. Actually, it was language that was removed, not inserted. And I do not believe a challenge on this ground alone could invalidate the entire bill. I think it really is just caving to the law and order types at DOJ. If prosecutors can convict you based on prejudicial evidence you are a bad man, evidence unrelated to the charges at issue, it makes their jobs light years easier at trial, and far fewer cases will go to trial. It is their wet dream in spite of how fundamentally wrong it is.

      • Ishmael says:

        Very good point on the sensationalizing of unpopular defendants by reference to their beliefs, not their actual actus reus crimes. That’s the whole thing – hate crimes by definition criminalize motivation in addition to the criminal act. But my gut agrees with Mary’s gut. Hate crimes are not separate offences, but rather traditional ones motivated by the offender’s bias toward an identifiable group. In that way, they are similar to terrorism – the purpose of the crime, whether vandalism of synogogues or gay-bashing, goes beyond the effect on the individual victim and is intended to create fear and damage in a larger, often despised group. How do you address the effect on the larger group without some kind of hate crime sanction?

        • bmaz says:

          In a way I agree, but the greater proportion of me says I dunno, maybe there are a few situations here and there where you just cannot have the perfect answer in the criminal code. So be it; but I maintain that in the long run we are much better off without trying. When you try for that last righteous measure, it is diminishing returns; you get it, but open up a whole lot of unintended and deleterious jurisdiction. We now have too much coverage, too much anti-terrorism, hate crime and every other jurisdiction extant and it is killing the root Constitution. Too much law and order soon becomes far worse and more disastrous to the root ethic than not enough.

          • Ishmael says:

            Rapes can be a war crime as well as a sex crime, and in fact has been recognized as such distinct from the crime against the victim – there is no reason it cannot have a dual nature in law. Hate crimes got their genesis in part from lynchings in the south, which had the dual nature of the murder of an African American individual, and the terrorizing of the African American community.

          • bmaz says:

            Under the misguided guise of hate crimes, the answer is yes – hate toward women. That is the type of conundrum that makes hate crimes, no matter how well intentioned, a wrongheaded idea. If there is to be any individualization for the criminal conduct and who and what it was directed to, it should be a sentencing factor, not separate and/or heightened crimes. It is nothing but a gravy train for lazy and heavy handed prosecutors.

            • Ishmael says:

              “….. it should be a sentencing factor, not separate and/or heightened crimes. It is nothing but a gravy train for lazy and heavy handed prosecutors.”

              This is how we address it in Canada – a judge is required by our Criminal Code to consider hate circumstances in sentencing. In Canada it is also illegal to (a) advocate genocide, or (b) willfully incite hatred against an identifiable group in a public place.

        • esseff44 says:

          It seems like the expanded terrorism laws would take care of that. If it is intended to scare a group and not just the incident victim, it’s a terroristic act.

          • esseff44 says:

            The Alabama church arsons could have been hate crimes and had a terrifying effect for a time because people thought they might be. Even at the time, I suspected it was teens on a drunken binge pulling stupid pranks. Nevertheless, church arsons had been federalized and they are doing federal time.


          • Ishmael says:

            I accept the analogy between terrorism and certain hate crimes, but I think the precision of a hate crime provision is necessary to stem the over-aggressive prosecution that may result using theories (and investigative techniques and punishments) that are more applicable to Al-Qaeda than the KKK. Criminal statutes do not do well when they are expanded (or stretched beyond recognition) to target other criminal offences.

  3. earlofhuntingdon says:

    While selling this as protection to minorities, this legislation really seems to be designed to attract the Blue Dogs and the 1/2 or one Republican who might vote with them. Just as Bush’s “Civil Rights” Division morphed into a protection racket for “victimized” white christianists.

    In the 1960’s, federalization of murders and assaults was a legitimate response to state courts and juries that laughed and patted on the back their perpetrators – when the victims were non-white.

    Now, it seems, the feds want to federalize state crimes as part of a package of federalizing law enforcement generally. The better to integrate the data into their secret, non-existent total information awareness databases, outsourced to still Republican IT service providers at rates that would probably make EDS blush. All to protect us mind, not to snoop on law abiding citizens who exercise their constitutional rights.

  4. belewlaw says:

    Thanks for the excellent post, bmaz. I think that it is a mistake to target “hate” or “hate groups” per se. Prosecutors should target actions, not emotions. There is, unfortunately a lot of harsh language in the media and online. Just listen to Glenn Beck. Deciding what speech or association to target will prove problematical for prosecutors.

    The Bush Administration attempt to fight “extremism” and promote “moderation” was wrong-headed IMO. In the Arab world Fox News is extreme and Al Jazeera is moderate. In the US the reverse is true, as the excellent film Control Room demonstrates.

    • bmaz says:

      Yeah, I have fundamental problems with “hate crimes” to start with; I think there are equal protection issues with the very idea. I am not necessarily in the majority with that thought though….

        • Cellar47 says:

          The road to Hell is paved with the dismembered corpses of murdered queers.

          “Free Speech” is a myth. Speech is VERY expensive.

          Amd we are not free.

          None of us.

          And those of us who are LGBT have giant targets pinned to our backs.

          You breeders don’t have a FUCKING CLUE of what it’s like to live in this culture.

          • bmaz says:

            Are you more important than the Constitution? It appears you think you are. I appreciate your plight, but not your attitude. Of all places, for you to attack FDL with that kind of crap is laughable.

            • Cellar47 says:

              Yes I’m more important than the constitution. And so are you. Remember what Benjamin Franklin said about it. Go Google “Benjamin Franlin” + “Gore Vidal” and you’ll find it — cause it’s never quoted. And once you read what he said you’ll know why.

              • bmaz says:

                No individual, nor collection of individuals, is more important than the Constitution. That is why federal officers, including the President, are sworn to protect the Constitution and not people.

                  • macaquerman says:

                    Some of us shitholers haven’t been able to think of a really good alternative to Constitutional law.
                    Would you care to interrupt your complaining long enough to explain your thoughts of how better to structure a regime?

                    • macaquerman says:

                      Glad to hear it. Wouldn’t want you to think that you should have ownership of your own shit or shitter.

              • nrafter530 says:

                Dangerous territory…this is the same argument Conservatives use to justify stuff like torture and warantless wiretapping…people are more important than the Constitution.

                • Cellar47 says:

                  Uh no. Coservatives claim to uphold the constitution.

                  For white breeders only, needless to say.

                  • nrafter530 says:

                    Still, you’re using the same arguments they do…that people are more important than the Constitution…that sometimes it’s ok to subvert it so long as it protects some people.

    • Cynthia Kouril says:

      Prosecutors should target actions, not emotions.

      THAT is IT, in a nutshell. Well said.

  5. Mary says:

    Really nice post bmaz, thanks.

    I like the concept of hate crimes legislation in my gut, and fear it in my heart and head. That’s a two to one vote against.

    OT, but I thought you might like this if you haven’t already read it:…..ach_motel/

    A piece in the ABA about the Office of Professional Responsibility – aka the Roach Motel (the cases go in, but they don’t come back out).

    • phred says:

      Given gut-related decision making over the last several years by politicians, I would say the votes between heart, head, and gut requiring a weighting system, say 24%, 75%, and 1%, respectively ; )

      bmaz, great post. I agree with this completely. However, if I remember correctly there are limits to free speech in the sense of inciting riots or panic (like yelling fire in a crowded theater, when there is no fire). I would be really interested if you could give us a legal comparison to clarify how those sorts of restrictions are defined v. the willy nilly approach in this legislation.

    • fatster says:

      O/T. Look what’s down the page in this article. Is our lawmakers learning yet?

      Lawmakers Blast Obama “No-Visit” Gitmo Policy
      Foreign Intelligence Said to Meet Detainees – But Lawmakers Can’t

      Lawmaker Threatens Funding Cut over Gitmo

      “Rep. Dana Rohrabacher, R-CA, was visibly upset by the Obama administration’s apparent decision to continue the Bush administration’s policy of barring detainee visits by lawmakers. “I am being denied — all of us are being denied the same access that was denied during the last administration,” he said. “George Bush, ‘what a horrible man, a horrible president!’ [But] these very same restrictions on us and are being reaffirmed in today’s testimony by this administration.”

      “During questioning Liotta referred most lawmakers’ at-times incredulous queries to the Justice Department, or claimed the answer they sought was a national secret and could not be shared in a public hearing.

      “Those demurrals ignited Moran. “My frustration continues to mount,” he said. “In order not to answer a question, you can suggest it be provided in classified form. That’s not acceptable. There is no classification of that answer. This is a manipulative, evasive tactic you are employing.”‘


      • bobschacht says:

        Actually, I take this as a constructive sign: Republicans are starting to get the idea that, while they might have approved of Gestapo tactics from Bush, they really don’t like Gestapo tactics from Obama. Which will, ultimately, result in Republicans voting with Democrats against Bush DOJ tactics.

        Bob in HI

        • Mary says:

          To give Rohrbacher his due, he complained while Bush was in office about the Uighurs as well. He’s also, IIRC, one of the few in Congress who actually apologized to Maher Arar, although he said collateral damage mistakes like that can’t tar and tarnish the glow of the GWOT.

          • fatster says:

            and @17, did y’all see this?

            Shuster slams Yoo for ‘dishonesty, incompetence’


Published: July 17, 2009 
Updated 6 hours ago

            “Speaking with Scott Horton, a contributing editor with Harper’s, Shuster drove right at Yoo’s opinion that the FISA court is “obsolete.”

            ‘“Mr. Yoo […] argues that the presidency itself was created specifically because the founders wanted a quick moving action hero in charge for emergencies,” said Shuster. “Care to respond?”

            ‘“Well, that’s exactly right,” replied Horton. “Our founding fathers obviously wanted George III to remain as king of the kingdom of America. That’s the … Yoo view.”’


    • itshissong says:

      Couldn’t agree more with this sentiment. I understand the motivation to go after hate crimes due to the roles that regional and personal prejudices can end up playing on prosecutorial discretion, judge and jury biases, and overall enforcement of the underlying substantive offenses but I really think that we need to stand strong for the traditional ideas that America criminalizes actions not thoughts/motivations.

      • itshissong says:

        Additionally, I am still skeptical that killing someone because they are gay is actually worse in some meaningful way than killing someone because they spurned you as a lover. It isn’t clear to me why the former would be worse than the latter. Then again, I have never really understood a lot of the distinctions that we make in these kinds of areas. Another good example would be why genocide is thought of as being worse than other kinds of mass murder. Can someone on here explain to me why they think these distinctions are meaningful or should exist at all? I am open to being convinced but never have been in the past.

        • bmaz says:

          I am still skeptical that killing someone because they are gay is actually worse in some meaningful way than killing someone because they spurned you as a lover. It isn’t clear to me why the former would be worse than the latter.

          That is exactly my thought. I have profound equal protection problems, among others, with hate crimes. I did not put a ton of discussion on that in this post, but the earlier one I did that I linked to has a lot of detailed discussion in the comments thereto. If you are interested in this subject, it might be worth looking at that post and comments too.

          Glenn W. Smith @ 43 – Thank you.

  6. fatster says:

    Not a hate crime, but definitely hateful.

    Texas May Bar Students from Learning About Cesar Chavez, Thurgood Marshall
    by Tula Connell
    July 16, 2009

    “United Farmworkers founder César Chávez is an unfitting role model for students, and former Supreme Court Justice Thurgood Marshall is not an appropriate historical figure. So say “expert reviewers” in their report to the Texas State Board of Education, which recommends removing the two U.S. leaders from the social studies curriculum taught to its 4.7 million public school students.”

    • emptywheel says:

      I edited a high school business writing textbook in the 1990s and I remember that Texas was the hardest school in the country to deal with.

      Still, it’s appalling that a state with the Latino population of Texas won’t teach Chavez.

  7. JamesJoyce says:

    Great post bmaz…. Attempts to control offensive speech predicated on ignorance seeking to victimize a “group” are unconstitutional. The correct way to challenge absurd assertions predicated on ignorance is to challenge the assertions on the merits. The importance of a “free press” cannot be understated. If I “assault” a person I have committed a crime. If I perceive a threat to my safety I have a right to self defense.

    “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    Hate Crimes legislation, is on it’s face unconstitutional. Limiting free speech enabled the “”silence”" in Nazi Germany and Hitler rise to power. Hate Crime Legislation is indicative of government’s short coming(s) and the failure of “ELECTED” prosecutors to prosecute because of conditioned ingrained ignorance and prejudices propagated for decades along religious and economic lines utilized as wedge issues for opportunist like Hitler, who limited free speech under the color of law, with disastrous results? Perceptions created to justify “law” are seldom the realities realized…… the shell game!

    “When the Nazis came to Skokie Illinois”

  8. Zombiebirdhouse says:

    Thank you, Bmaz. Excellent post and excellent discussion! I am confused about whether or not the issue of speech and association has already been dealt with in the Senate Bill.

    There is the Brownback amendment…

    S7492 section X10, “Rule of Construction”.

    (3) CONSTITUTIONAL PROTECTIONS.–Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the First Amendment and peaceful picketing or demonstration. The Constitution does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

    (4) FREE EXPRESSION.–Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.

    And the NYT reported yesterday that:

    In response to conservative criticism that the legislation could lead to charges against those who speak out against gay rights, Mr. Leahy added a provision banning prosecution for exercising the rights of free speech.

    I can’t find any comment on either the Brownback amendment or the Leahy amendment from the ACLU. I hope that you will keep us updated on this as it progresses.

    • bmaz says:

      Yes Leahy allowed the Brownback Amendment. However that provision is quite different than what the ACLU is talking about. Brownback concerns the charging of crimes in the original instance, the ACLU is talking about evidence admissible at trial. If you can take statements and acts from a person’s past, unrelated to the crime they are on trial for today, and put them in front of the jury to show that the defendant is a “bad man” and therefore must be guilty of the unrelated crime today, that is a powerful weapon in the hands of prosecutors. And that is exactly what they are trying to gain here. The Brownback Amendment does not address that in the least.

  9. Zombiebirdhouse says:

    Thank you for the clarification. I thought that there were two different amendments and that the language was similar to that in the House bill. I’ll have to get my ex-lawyer partner to explain the exact difference between charging and admissibility of evidence. He has long been dubious about the constitutionality of hate crimes legislation in general.

  10. bmaz says:

    From best I can tell, it was only the one by Brownback; although I could be mistaken. At any rate, that is pretty different from what the ACLU is talking about. I join your friend in being dubious about Constitutionality of hate crimes laws. I think peoples’ hearts are generally in the right place in proposing them; I just don’t think they are in keeping with the spirit and letter of the Constitution. Note that the Supreme Court does not necessarily agree with us there.

  11. ThingsComeUndone says:

    What would we want from a good hate crimes bill? I want Lou Dobbs and Glen Beck off the air before an other immigrant is killed.
    Maybe making it easier for immigrants to sue the MSM would work better.

  12. ThingsComeUndone says:

    Politically Glen and friends are egging on their people sooner rather than later there will be a mass causality attack Glen and friends will of course tone done their crazy acts and deny any responsibility.
    Then Congress will pass something much more restrictive than this but not necessarily better.
    I would like to see Lou and Glenn devote 3 times as much airtime admitting their lies as they spend saying them.
    Mexicans spread Leprosy, Lou was trying to start a plague riot.

  13. Glenn W. Smith says:

    The right to speech and association can be undermined in many ways, even well-intentioned ways. This is an important post. Thanks for it.

  14. esseff44 says:

    It seems to me that the hate crime notion needs more study to see if it will do more harm that good. If the point is to deter a certain kind of behavior or violence, it might deter only the verbal expressions of ‘hate’ but not the actual behavior. What would then be the evidence to make it a hate crime? There’s a lot of hateful speech out there, but what good does it do to drive it underground or replaced by coded language and symbols?

    I think we would do much more good by concentrating on education and closing social gaps and schisms than adding to the list of federal crimes and adding to sentences already so long that adding to them becomes meaningless in most cases. Do we have case studies to show that there is any change in the real world? I agree with others that the risk for abuse by prosecutors is too great. Then, one gets into the complications of who can sit on a jury and who cannot for certain categories of hate crimes. Once again, backgrounds and attitudes would come into play.

    Does anyone know of any research done on these questions?

    • esseff44 says:

      I found this study. It’s based on economic theories but does bring up issues that need to be studied. It raises the notion that greater penalties for hate crimes could backfire and actually increase the targeted criminal incidents. Since the laws requiring statistics be kept for hate crimes have been in effect for such a short time, it is too soon to tell what effect the enhanced penalties have.…..cadams.pdf

  15. RoadScholar says:

    Before you get in a tizzy about hate crime legislation impinging free speech, bear in mind how blithely the Christers limit our ability to hear Chris Rock use the F word, or why I have to use the euphemism ‘F word’ here. Or even that a thug on Law and Order can’t even say “sh.t!” when arrested.

    They want the freedom to say “Death to fags,” but want to prevent you from hearing the word “tits” on TV.

    Speech is limited all the time. Get over it. The main thing the Founders had in mind was making sure you couldn’t be punished for criticizing the government.

  16. bmaz says:

    So far, there has been exactly one person here who has had any concerns with profanity: you. We were always focused on the big picture of free speech. Get over that.