you can't be a white hat without tied hands
Making Light posted a link over to a piece Glenn Greenwald just wrote on his problems with hate speech/hate crime laws, and it got me thinking.
See, I sympathize with a lot of his argument--criminalizing a kind of thought is dangerous, and it gives the Powers That Be license to criminalize kinds of thought we're more sympathetic towards. It's easy to have a slippery slope--first you're condemning Nazis and Klansmen, which gets easy support in most quarters, and then, pretty soon, it's you and me. There's that. And it's very easy to forget that law and morality aren't the same, and there are many wrong things that are legal, and many right things that are not, and that this is a wise distinction to have.
But it also takes up part of an argument about hate crime laws that really bothers me. Hate crime law, as far as I'm concerned, doesn't criminalize thought if properly applied. You can't, as far as I'm aware, charge someone with hate crime or speech for having vile and bigoted opinions--thank God--or discussing them to their hearts' content. You can't really charge someone with a hate crime for even publishing them, though hate speech laws are another animal, and one with which I'm not as familiar.
Hate crime charges are usually added onto other charges--assault, arson, murder, vandalism--to boost the seriousness of the claim. This bothers a lot of people--what did they do in addition to the assault/vandalism/cross burning that makes it worse? how do their motivations increase the seriousness of the crime, which we already acknowledge as criminal? aren't you charging someone twice for the same offense or act?--and this makes sense, unless you consider what makes a hate crime qualitatively different from, say, a normal assault. If you go out and kill a guy for being gay, and make it clear that that's why, you're doing more than just killing the guy. You're also sending a message to every gay person who hears about it, reminding them that what they are makes them a target for assault. Though I'm sick of overuse of the word, you're essentially committing an act of terrorism against the group whose representative you have harmed individually. It is an additional act added onto your original crime. When you burn a cross on a black family's lawn to scare them because they're black or shoot a Sikh because you think he's Muslim or burn down a synagogue because it's a specifically Jewish building, you're committing a symbolic assault on top of your standard one. It's not the same as just scaring one family or shooting one guy or burning down one building. Because you're attacking these people because they belong to a particular group, motivated by that hatred, you're giving that group a message: I can get you, and so can someone else. Get out of town. Change your activities. Act like I want you to.
It's terrorism at its most basic: a single, simple act that sends out ripples of fear, with the intent to frighten a group of people into complying with your wishes. It's an additional attack, and thus an additional crime. That's why, though I will be the last person to support any law restricting thought--even thought that wants me and all I love obliterated--I support the existence of hate crime laws. They do have an application to a specific kind of crime, and treating a hate crime like it was just a murder, or just an act of vandalism, or what have you, is ignoring a bigger and more complex picture of the act actually committed.
Now, hate speech laws--that's another matter, and one I have very mixed feelings on. On one level, I agree with Greenwald: it's much closer to legislating and prosecuting thought than I'm comfortable with. Restricting thought, no matter your intentions, is a very, very dangerous game. In cases like these, I agree with the old saw that the best way to combat free speech is more free speech. Hate speech needs to be drowned out by love speech, and I'm not convinced courts are the way to do it. At the same time--there is hate speech that, like more violent or direct acts, functions as terrorism. Leafletting a Jewish neighborhood with Nazi propaganda doesn't seem like just speech, or just thought, to me, for instance. Going on the radio and advocating the assault of queer people doesn't strike me as just an act of speech. Neither does posting the addresses and photos of abortion providers on a website encouraging people to take them out. When your speech serves to threaten whole communities, or is designed to keep your hands clean while encouraging others to commit real and terrible crimes, I can't see it as a simple act of free speech. These are real attacks on people, even if nascent or at-present-intangible. Left unchecked, this hate speech will produce actual, physical, awful hate crimes. How to deal with them? Hate speech laws are a mess. There has to be a way to restrict the kind of thing I just mentioned without making it about prosecuting the thoughts behind it--just the use of those thoughts to frighten, coerce, and threaten communities at risk.
I sympathize with the German model of hate speech laws, I do. They know as well as any of us that putting that kind of poison out into human minds has real consequences, has actual, bloody results. Hate speech has a net harm on culture and society and, I think, sometimes does indeed constitute actual hate crime. What do we do, though? How can we fight it without our arms being turned against us in the end? How do we fight vile acts, even if acts of speech, without turning it into a crusade against thoughtcrime?
See, I sympathize with a lot of his argument--criminalizing a kind of thought is dangerous, and it gives the Powers That Be license to criminalize kinds of thought we're more sympathetic towards. It's easy to have a slippery slope--first you're condemning Nazis and Klansmen, which gets easy support in most quarters, and then, pretty soon, it's you and me. There's that. And it's very easy to forget that law and morality aren't the same, and there are many wrong things that are legal, and many right things that are not, and that this is a wise distinction to have.
But it also takes up part of an argument about hate crime laws that really bothers me. Hate crime law, as far as I'm concerned, doesn't criminalize thought if properly applied. You can't, as far as I'm aware, charge someone with hate crime or speech for having vile and bigoted opinions--thank God--or discussing them to their hearts' content. You can't really charge someone with a hate crime for even publishing them, though hate speech laws are another animal, and one with which I'm not as familiar.
Hate crime charges are usually added onto other charges--assault, arson, murder, vandalism--to boost the seriousness of the claim. This bothers a lot of people--what did they do in addition to the assault/vandalism/cross burning that makes it worse? how do their motivations increase the seriousness of the crime, which we already acknowledge as criminal? aren't you charging someone twice for the same offense or act?--and this makes sense, unless you consider what makes a hate crime qualitatively different from, say, a normal assault. If you go out and kill a guy for being gay, and make it clear that that's why, you're doing more than just killing the guy. You're also sending a message to every gay person who hears about it, reminding them that what they are makes them a target for assault. Though I'm sick of overuse of the word, you're essentially committing an act of terrorism against the group whose representative you have harmed individually. It is an additional act added onto your original crime. When you burn a cross on a black family's lawn to scare them because they're black or shoot a Sikh because you think he's Muslim or burn down a synagogue because it's a specifically Jewish building, you're committing a symbolic assault on top of your standard one. It's not the same as just scaring one family or shooting one guy or burning down one building. Because you're attacking these people because they belong to a particular group, motivated by that hatred, you're giving that group a message: I can get you, and so can someone else. Get out of town. Change your activities. Act like I want you to.
It's terrorism at its most basic: a single, simple act that sends out ripples of fear, with the intent to frighten a group of people into complying with your wishes. It's an additional attack, and thus an additional crime. That's why, though I will be the last person to support any law restricting thought--even thought that wants me and all I love obliterated--I support the existence of hate crime laws. They do have an application to a specific kind of crime, and treating a hate crime like it was just a murder, or just an act of vandalism, or what have you, is ignoring a bigger and more complex picture of the act actually committed.
Now, hate speech laws--that's another matter, and one I have very mixed feelings on. On one level, I agree with Greenwald: it's much closer to legislating and prosecuting thought than I'm comfortable with. Restricting thought, no matter your intentions, is a very, very dangerous game. In cases like these, I agree with the old saw that the best way to combat free speech is more free speech. Hate speech needs to be drowned out by love speech, and I'm not convinced courts are the way to do it. At the same time--there is hate speech that, like more violent or direct acts, functions as terrorism. Leafletting a Jewish neighborhood with Nazi propaganda doesn't seem like just speech, or just thought, to me, for instance. Going on the radio and advocating the assault of queer people doesn't strike me as just an act of speech. Neither does posting the addresses and photos of abortion providers on a website encouraging people to take them out. When your speech serves to threaten whole communities, or is designed to keep your hands clean while encouraging others to commit real and terrible crimes, I can't see it as a simple act of free speech. These are real attacks on people, even if nascent or at-present-intangible. Left unchecked, this hate speech will produce actual, physical, awful hate crimes. How to deal with them? Hate speech laws are a mess. There has to be a way to restrict the kind of thing I just mentioned without making it about prosecuting the thoughts behind it--just the use of those thoughts to frighten, coerce, and threaten communities at risk.
I sympathize with the German model of hate speech laws, I do. They know as well as any of us that putting that kind of poison out into human minds has real consequences, has actual, bloody results. Hate speech has a net harm on culture and society and, I think, sometimes does indeed constitute actual hate crime. What do we do, though? How can we fight it without our arms being turned against us in the end? How do we fight vile acts, even if acts of speech, without turning it into a crusade against thoughtcrime?
Labels: building blocks, queer, race
posted by little light | 10:17 AM
4 Comments:
Thankyou. This is one of the better considerations of hate speech and hate crime laws that I've read in a while.
I'd just like to add: There's already ample precedent in law for giving greater or lesser punishments for crimes based on motivation. Look at the difference between 1st degree murder, 2nd degree murder, involuntary manslaughter, justifiable homicide, etc. We already say that it's worse to kill someone in cold blood for money than to kill them in the heat of passion... which is worse than killing someone by careless accident... which is worse than killing someone to defend yourself or someone else. Nobody calls these differences "thought crimes."
Hate speech laws... now that's another can of worms. I really don't see any way to ban hate speech without endangering free speech for all of us.
That's a damn good point, greta, and one I don't often see brought up in this discussion--which is odd because it seems so obvious.
I wonder what the difference is? Why is there such defensiveness around considering-the-thought-pattern-bigotry and not, say, considering-the-thought-pattern-intent or considering-the-thought-pattern-avarice? I've never heard anyone argue that we can't prosecute a rape-murder differently from a robbery-murder differently from a crime-of-passion-murder and those differently from involuntary manslaughter, because they're all killing; or that modifying charges of manslaughter or murder with respect to these patterns is "prosecuting twice for the same crime" or "punishing undesirable thought."
Any ideas why the distinction is made?
" Look at the difference between 1st degree murder, 2nd degree murder, involuntary manslaughter, justifiable homicide, etc. We already say that it's worse to kill someone in cold blood for money than to kill them in the heat of passion... "
i agree that this is a great point. what is also interesting is that many people who defend hate crimes argue that they are passion crimes. Especially, when strait men kill gay men. "Well, he was so shocked that he had hit on a transvestite that he went crazy and couldn't think strait." the same thing was said when white men killed passably white women of color years back. "Well, his honor was at stake for marrying a black woman. he went crazy. it is her fault for not telling him about her great, great, great grandmother being black."
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