Hate Crime: First Amendment Issue?

mirrored from http://bplolinenews.blogspot.com/2012/11/bpl-archives-opens-robert-e-chambliss.html

Not too long ago, perhaps three or four years past, I was of the opinion that, as a whole, the idea of a ‘hate crime’ was a bad one, mainly as a result of the following argument:

According to the law, we determine the nature of a crime by what was actually done. If we re-classify it as a hate crime, we’re punishing the criminal for the very thoughts in his/her head, or the content of their speech. At the very least, this is a violation of First Amendment rights. At worst, we’re legitimizing the Orwellian idea of ‘thoughtcrime’.

Upon reflection, however, I realized that this argument misses the point of what I think is the most important reason that some crimes should be classified as hate crimes. When the law is applied to an act to determine its criminality, we already do consider the motivations and thoughts of the actor in the case. For example, if one person causes the death of another, we ask whether the act was purposeful, whether it arose from a moment of extreme provocation or planning, and so on. In other words, intent, which is what was going on in the actor’s mind at the time, is essential for determining the criminal nature of the act.

One of the main reasons for this, why, for example, we consider intentional, deliberate violent crimes worse than off-the-cuff or accidental violent crimes, is how much of a threat the criminal presents to the community. The law says that a person who kills someone out of anger upon catching them cheating with a romantic partner, for example, is considered far less dangerous to a community than a person who plans and then executes a shooting spree in a public place. A person who kills someone after planning the crime ahead of time also presents a larger danger to a community than the ‘heat of the moment’ killer, since they reveal themselves capable of killing at least one person even after sustained reflection. While the danger is still mainly confined to a single target, the killer’s still a potential threat to the wider community in this sort of case since they might become homicidally angry at someone else.

A person who commits a hate crime, however, presents a wider danger to the community because their intent or wish to harm is not aimed at a single target. The target of their hate or anger is an entire class of people, as the evidence of their own expressed intent and beliefs reveal. The harm that they do, or intend to do, or wish to do, is likely to be far more widespread.

In this way, the way the law determines whether or not a crime is a hate crime is very similar, or even nearly identical, to the way it determines whether a homicide is first degree murder, second degree murder, or manslaughter. I think this sort of deliberation is necessary and appropriate, and therefore, I think that the separate classification of hate crime is likewise appropriate. We just need to be careful, as a society, that we don’t become hasty or overzealous in over-applying the term to thoughts and speech alone, or to philosophically or morally repulsive but relatively harmless actions.

* Also published at The Dance of Reason, Sac State’s philosophy blog