Jones and Ted Pike on the New Hate Crime Legislation

The Matthew Shepard Act (S.909) is essentially an updated version of the hate crime law that was passed four decades ago, which allows for federal prosecution of crimes committed on the basis of victims' race, religion, or ethnicity while the victim(s) is engaged in a federally-protected activity such as voting or attending a public school.

The act simply adds gender, sexual orientation, and disability to the list, and removes the stipulation that the victim(s) must be engaged in federally-protected activity when the crime occurs. It also provides an opening for federal investigators to get involved in hate-crime investigations that state and local law enforcement can't handle or won't pursue. This makes sense, as federal hate-crime legislation applies only to federal crimes.

Opposition to hate-crime legislation focuses primarily on the definition of "hate". Critics point out that:
- all crimes are hate-based; therefore, laws specifically aimed at hate crime are unnecessary
- the legislation provides special status and protection for minority groups while ignoring hate crimes against majority groups
- the legislation may criminalize free speech. For example, members of religious groups have been charged with hate crimes for publicly criticizing homosexuality.
- the laws can be exploited by individuals or groups who wish to silence ideological opponents
- it is difficult or impossible to determine a perp's motive. For instance, an assault that seems to be racially motivated may actually be a random attack.
- the laws criminalize stupidity and ignorance. Example: Holocaust deniers may not be engaging in hate speech; they may just be poorly educated.
- a perp's motive is immaterial to the nature of the crime and how it should be prosecuted

I believe there is some validity to all of these arguments, except for the last two.
Intent is a crucial component of the legal system. Determining what a perp intended to do at the time a crime occurred is a major factor in the filing of charges, prosecution, and sentencing. It can spell the difference between a life sentence and a death sentence.
Stupidity should never be a prosecutable offense, but it should be up to the legal system to decide if a particular case involves hate or ignorance.

Let's look at Jones' and Ted Pike's reasons for opposing the new hate-crime legislation:

It will criminalize free speech. There is some validity to this, as mentioned above, but the notion that the Megan Meier Cyberbullying Prevention Act will criminalize all free speech is absurd. And the Matthew Shepard Act specifies that hate speech can be used as evidence of hate crime only if it directly relates to the crime. Hate speech is still fully protected by the First Amendment. In other words, you're not going to be charged with a hate crime because you said "I hate gays". However, if you said "I hate gays" while beating a gay man with a baseball bat, your comment can be used as evidence at your trial.
Groups that have previously rejected proposed hate-crime legislation on the grounds that it threatened free speech, like the ACLU, have embraced the Shepard Act because it is the first such act that protects free speech.

It will create a "supergroup of supercitizens, and titles them nobility" (Jones). Okay, that's almost too weird to even discuss on a rational level.
Like civil rights legislation, hate crime laws are designed to protect the rights of historically persecuted minorities. If you want to argue that minorities don't need extra protection from persecution or discrimination because existing laws are sufficient, fine. But don't try to argue that minorities are suddenly going to be elevated to privileged status by some amendments to existing laws. Even in Canada, where hate speech laws are in effect, minorities do not enjoy special social status.

You can be arrested and charged for hurting someone's feelings, because the Megan Meier Cyberbullying Prevention Act specifies that "causing significant emotional distress" via electronic means can result in prosecution. This seems like ridiculously loose wording, but there are actually well-defined legal perimeters for what constitutes emotional distress. In fact, emotional distress (commonly known as "pain and suffering") is a key component of personal injury law, anti-stalking legislation, and the law against cruel and unusual punishment, among other things. So if you're going to oppose anti-bullying legislation on those grounds, you should oppose all these other laws as well.
Some countries, like Canada, have hate propaganda laws that forbid the denigration of minorities. The U.S. does not. Hate speech is fully protected in the U.S. The Matthew Shepard Act applies only to existing hate crime legislation; it does not create a new hate propaganda law.

That said, I actually agree with Jones et.al. that other parts of the Cyberbullying Act are too loosely worded. In fact, I think the entire act needs to be scrapped or redrafted.

It doesn't protect straight white people from hate crimes. Sorry, guys, but you're not a minority. Get your own damn bill.

The legislation is identical to policies of the Soviet Union. Pike claims that Lenin's recorded speech against anti-Semitism contained a warning that any Soviet citizen who referred to a Bolshevik as Jewish would be put to death. Untrue. This was written by Stalin in 1931, and even Stalin didn't slice hairs so thinly - he wrote that "active anti-Semites" were liable to the death penalty. Lenin simply told Russians they should be ashamed of themselves for anti-Semitism, pogroms, and other atrocities against the Jewish people. There was no death penalty for anti-Semitism under Lenin. And Stalin's own anti-Semitic hate crimes belie the notion that ethnic and religious minorities had any true protection in Soviet Russia.

If your speech incites or influences the commission of a hate crime, you can be prosecuted. Again, hate speech is fully protected by the First Amendment. This stipulation in the original 1969 hate crime law applies only to speech that incites or provokes federal crimes against specified minorities. You can say, "Immigrants shouldn't be allowed to vote", but if you say "You must physically prevent immigrants from voting" and your audience does just that, you can be liable. If you want to avoid being prosecuted under this section of the law, simply avoid telling other people to commit hate crimes.

You can be arrested for saying that 5, 999, 999 Jews died in the Holocaust or using a racial slur. Okay, for the last freaking time, hate speech (including Holocaust denial and racist speech) is protected in the U.S.
The Cyberbullying Act may make it harder for racist broadcasters to sound off on the radio or television, but they're already subject to FCC regulations (not to mention company policies) that limit that sort of thing.

The Matthew Shepard Act violates states' rights by allowing federal investigators to intervene in hate crime cases. As mentioned, these are already federal crimes. Permitting federal agents to investigate federal crimes makes sense, doesn't it? I don't see anyone complaining when the feds step into kidnapping, drug trafficking, or terrorism cases.
The act also increases funding to state and local jurisdictions for the investigation and prosecution of hate crimes, but neither Pike nor Jones mentioned this.

The bottom line: If the Shepard Act is defeated, federal hate crime legislation will still be in place. It just won't protect as many minorities. If the act passes, you can still be a bigot to your heart's content - you just won't get away with any bigoted crimes you commit.