hate crimes

The Political Climate is Too Dull and Conformist Already

by Hans Bader on January 12, 2011 · 1 comment

in Culture, Nanny State, Personal Liberty, Zeitgeist

There is a lot of cynical and dishonest blather right now about the need to dial down America’s political rhetoric because of the shootings in Tucson, even though such rhetoric played no role in the shootings. As the Denver Post‘s David Harsanyi notes, this blather is being used as a pretext by liberals (some of whom are quite nasty) seeking to shut down debate and criticism of abuses by big government.

Lost in the furor over the shootings is the fact that America has a fairly bland political culture that discourages harsh criticism of political leaders: bland by both historical and international standards. My French relatives regularly denounce their country’s leaders in far more heated and pungent terms than Americans like Sarah Palin do. Founding fathers like Thomas Jefferson and John Adams were attacked far more vitriolically in the media than recent presidents like Obama and Bush were, as Reason magazine points out here and here. Recent attempts to blame the shootings in Arizona on the political climate are ignorant of both America’s own history and the world beyond America’s borders.

As reporter Robert Barnes noted days ago in the Washington Post, there is “no evidence that the suspect in Saturday’s shootings that left six dead and Giffords and 13 others wounded was influenced by inflammatory political rhetoric, or that any voices that motivated him were outside his own head.” But Congressman Bob Brady (D-Pa.) responded by introducing a bill to “shut” harsh rhetoric aimed at politicians “down.” And the liberal establishment, speaking through the editorial board of the New York Times, recently called on Arizona to “quiet” the harsh “voices” who allegedly promote “division” by criticizing liberal constituencies like illegal immigrants, “welfare recipients,” and “bureaucrats.” The Times insinuated that “opponents of health care reform” had helped create a political climate that led to the shootings.

Chilling sharp criticism of political leaders is a bad idea. It will make it even harder to get entrenched politicians to address problems like America’s skyrocketing budget deficit, which has mushroomed as result of feel-good “bipartisan” policies like the recent deal between Obama and Congressional leaders (which will add $900 billion to the national debt to perpetuate welfare-expansions in the failed stimulus package, and tax-cuts that the country can’t afford), the Iraq War, the failed $150 billion Bush-Pelosi-Reid stimulus rebates, and the costly No-Child-Left-Behind Law backed by Ted Kennedy and George Bush (Bush increased education spending by 58% even as wasteful education spending exploded).

Chilling criticism of Obamacare is also a bad idea, given that even liberal commentators admit that it is a “disaster” that has not lived up to its promises, and given how it has increased state budget deficits, healthcare costs, and red-tape. And it has been criticized by law professors as violating Constitutional limits on Congress’s power under the Commerce Clause and Spending Clause.

The intellectual climate is already so stiflingly conformist in liberal circles that it is considered a faux pas or even racist to criticize Obama at some Washington-area dinner parties, no matter how factually based the criticism. The closing of the liberal mind is manifested in books such as I Can’t Believe I’m Sitting Next to a Republican. (Vitriolic and violent rhetoric from the left in recent years has made any controversy over Sarah Palin look like a tempest in a teapot: Palin’s use of martial metaphors in campaign rhetoric was completely commonplace and unobjectionable, as Slate’s Jack Shafer and others have noted, and the word “campaign” is itself of martial origin.)

Making politics blander will not do anything to prevent future shootings. People who threaten to kill government officials are seldom influenced by the tone of political rhetoric. I was once a law clerk for a federal judge (a moderate Republican much like John Roll, the widely respected federal judge who was slain in Arizona). My judge had received many death threats over the years (and his family later received death threats after his funeral). Accordingly we, his law clerks, were vigilant to make sure that six people who had threatened the judge not be allowed into his chambers. But none of these death threats were tied to politics, much less to heated political rhetoric or Talk Radio.

Most of the judges in this country who are slain are killed by people unhappy over outcomes in non-publicized cases, such as divorce cases, or child-custody disputes, or run-of-the-mill criminal cases. Political rhetoric plays no role in their death whatsoever. Similarly, would-be assassins like President Reagan’s assailant, John Hinckley, often have bizarre motives completely unrelated to politics.

On the other hand, silencing dissenters will prevent them from harmlessly letting off steam and thus increase the likelihood that a few of them will resort to violence. As Supreme Court Justice Louis Brandeis, who was once venerated by liberals, observed in Whitney v. California, “repression breeds hate,” and “hate menaces stable government”; “the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.”

Class Action Lawyers Ripped Off Their Clients, With Approval From Federal Judge

by Hans Bader on April 26, 2010

in Legal, Personal Liberty, Politics as Usual, Sanctimony, Zeitgeist

Class-action lawsuits all too often benefit only the lawyers, not the allegedly victimized consumers they claim to represent.  The Center for Class Action Fairness takes aim at such abuses.

Today, it filed a brief with the Ninth Circuit Court of Appeals “appealing a district court’s controversial approval of a class action settlement where attorneys recovered a $850,000 fee for themselves despite failing to provide any benefit to the class.” The lawsuit, “In re Bluetooth Product Liability Litigation, No. 07-ML-1822, alleged that three manufacturers of Bluetooth headsets for cell phones committed consumer fraud because consumers might not be aware that extensive use of headsets at high volume could cause hearing loss. Before the district court could rule on a pending motion to dismiss, the parties settled, with $100,000 going to charity, minor changes to defendants manuals and websites, and $850,000 to the attorneys — an 850% contingency fee. The purportedly injured class members received nothing.” Despite objections, “the district court approved the settlement and the entirety of the fees.”

In short, the lawyers ripped off their clients, with the trial judge’s blessing.

Earlier, I wrote in the Washington Post about how class-action lawsuit “settlements intended to benefit consumers get paid instead to groups that lobby for affirmative action, hate-crimes laws, undocumented immigrants, and public funding for abortions.”  (See Hans Bader, “Not Their Money to Give Away,” Washington Post, December 22, 2007, at A16).

The Washington Post similarly lamented how federal judges use such settlements for purposes unrelated to the underlying lawsuit, giving the money to “religious organizations,” “law schools,” and other organizations that “hire lobbyists” to influence judges  (See Editorial, “When Judges Get Generous,” Washington Post, December 17, 2007, at A20).

The practice seems to be even worse in state court than federal court.  As I noted in 2007, “In California state court, leftover money from a consumer class action settlement is commonly given not to consumer groups, but to groups that have nothing to do with consumers, like the left-wing La Raza Legal Center; the politically correct Employment Law Center of the San Francisco Legal Aid Society (which seeks to curb employers’ First Amendment rights); the ever-litigious Lawyers’ Committee; and groups that specialize in advocating affirmative action, broader definitions of ‘hate crimes’ (at the expense of civil liberties), or expanded access to welfare programs for illegal aliens. This ripoff of consumers is magnified as a result of practices like ‘fluid recovery.’”

Parody Becomes Law: Crimes Against Homeless Become “Hate Crimes”; Hate-Crimes-Envy Spreads

by Hans Bader on April 22, 2010 · 4 comments

in Legal, Personal Liberty, Politics as Usual, Sanctimony

Florida is now poised to join Maryland and Maine in treating crimes targeting the homeless as “hate crimes,” with increased penalties of up to five years for assaults on a homeless person.

The idea started out in Maryland as a parody.  The legislation’s author, a socially-conservative state senator, was by his own admission “motivated by cynicism: He was offended by legislation adding sexual orientation to the list of protected categories, which includes race, religion and national origin.”  So to parody it, he proposed adding all sorts of groups like the homeless to the protected list.

But his idea unexpectedly took off, as anti-poverty groups and homeless advocates backed his legislation to add the homeless to the state’s hate crimes law.  And he came to view it as a good idea, based on what you might call “hate crimes envy”: wasn’t it only fair to add the homeless if gay people were already included, especially since homeless people were allegedly more “vulnerable,” more deserving, and had less political “clout?”   (There is a related phenomenon called “censorship envy” that results in foreign hate speech laws getting broader and broader over time, as each minority group demands its own protection against political blasphemy.)

Lost in this train of reasoning is the fact that violence against the homeless is already forbidden by law, without any need for hate crimes laws.  The idea that every “vulnerable” group needs its own hate crimes law threatens to leave criminal codes littered with special protections for an ever-growing laundry list of protected groups.

Turning crimes into “hate crimes” can also make prosecutions considerably more expensive. Often, it is easy to establish that a criminal committed a crime, but very difficult to establish precisely why the criminal committed the crime.   A violent crime could have been committed because of personal animus against the victim (not a hate crime), an animus towards the victim’s group (a hate crime), or some combination of the two.  A criminal may select victims partly out of greed and partly based on membership in a protected group (like a robber who disproportionately preys on women or the disabled based on their perceived vulnerability), making it hard to determine whether the crime is a hate crime.   Proving why the criminal acted could add enormously to the expense of the prosecution even though the criminal is equally dangerous, and deserves to go to jail, regardless of why he committed the crime.

Moreover, homelessness is not an immutable characteristic, like race or gender, but rather is defined partly by behavior.  That makes it hard to interpret what it means to commit a crime based on someone’s homelessness, i.e., a hate crime.  If you get into a fight with a homeless person who is squatting on or near your property, over their squatting, is that based on their homeless status (because it presumably would not have occurred unless they were homeless), and thus a hate crime, or is it based on their behavior (the squatting, which is arguably linked to their homeless status)?  (Note that many so-called hate-crimes laws, like the federal hate crimes law, do not, contrary to their name, require proof of hatred, only that the defendant have acted because of, or partly because of, the victim’s protected status or characteristic.  As law professor and U.S. Civil Rights Commissioner Gail Heriot notes, if a burglar kills a male homeowner to avoid detection, but then lets a female homeowner live because he finds “himself unable to shoot a woman,” he has literally violated the federal hate crimes law, since his actions were based partly on gender.)

(My former apartment-mate in Los Angeles, a bleeding-heart liberal, got into a fight with a homeless man over his squatting on the parking lot of the apartments we lived in; it culminated in the homeless man slashing his tires.  It will probably never be clear to what extent my apartment-mate’s animus was exacerbated by the man’s bad smell and other characteristics arguably associated with his homeless status, such as his excreting on the pavement.  My apartment-mate was not pleased to have the homeless man there on premises while he was seeking to rent out the apartment, viewing it as an impediment to finding a tenant.  If prosecutors wanted to, they could easily find an “expert witness” to testify that my apartment-mate harbored an animus towards the homeless.  It is not hard to find so-called “expert witnesses” to testify to real or imaginary biases in California, as any lawyer who practices employment discrimination law there could no doubt attest.  A plaintiff’s lawyer can easily find a psychologist or diversity consultant to testify as an “expert witness” (for a fee) that the plaintiff has suffered Post-Traumatic Stress Disorder as a result of workplace jokes (even though that is impossible, according to findings by psychologists like Paul Lees-Haley), or that the plaintiff is a victim of discrimination (even if the plaintiff and the accused supervisor belong to the same gender or race).)

These state hate crimes laws are unwise, but at least they do not raise the serious civil liberties problems associated with the recently-expanded federal hate crimes law.  The federal hate crimes law is designed to circumvent constitutional double-jeopardy safeguards (by allowing people found innocent in state court to be reprosecuted all over again in federal court).  It also raises serious federalism issues, since it may exceed Congress’s power under the Commerce Clause.

False Claim About Justice Scalia from Liberal Reporter: No, He Didn’t Say He Would Have Voted to Uphold Segregation

by Hans Bader on October 27, 2009

in Employment, Labor, Legal, Personal Liberty, Politics as Usual, Sanctimony

Liberals are busy sending each other twitters falsely claiming that Justice Antonin Scalia, one of the more conservative members of the Supreme Court, said that he would have voted to uphold school segregation in Brown v. Board of Education (1954).

There’s just one problem: he never said any such thing. He said the very opposite!

A liberal reporter for Capitol Media Services, Howard Fischer, made the claim that Scalia said he would have voted to uphold segregation, in a story carried in the East Valley Tribune. But as even liberal law professor Jack Balkin, who was initially fooled by the story, now admits, it’s pure bunk: a video recording of the event shows that Scalia actually said he would have voted to strike down segregation.

Before the error was uncovered, the story circulated all around the internet, including at CQ Politics’ Political Wire, and as a result, we can expect to see the false claim repeated for weeks in the press. (Political Wire, for example, contains a commentary by Taegan Doddard entitled, “Scalia Would Have Voted to Keep School Segregation.”)

This sort of reporting is typical for liberal court reporters, who routinely make false claims that make conservatives or businesses look bad or politically-correct constituencies look good. A classic example is the Ledbetter v. Goodyear decision, which Linda Greenhouse of the New York Times deliberately distorted to make it seem like the Supreme Court had created a rule that discrimination plaintiffs have to sue even before they could have learned about pay discrimination. (In fact, the plaintiff in the Ledbetter case had known of the pay disparity she later claimed was discriminatory for at least 5 years before complaining to the EEOC. By distorting the facts of the case, and what the Supreme Court actually held, the press also created a political weapon for the Obama campaign to use against McCain in the 2008 campaign.)

Another example is the Duke Lacrosse case, where the prosecutor was later jailed for misconduct for pressing a baseless interracial rape case against innocent Lacrosse players. DNA evidence proved the players were innocent, and North Carolina’s attorney general admitted that they were in fact innocent. But the New York Times’ Duff Wilson claimed that a substantial “body of evidence” pointed to the defendants’ guilt.

CBS News legal “analyst” Andrew Cohen repeatedly denounced the Duke lacrosse players, calling for the gagging of their attorneys. At a time when few journalists dared question the rape claim for fear of being seen as politically incorrect, Cohen absurdly claimed that the media had rushed to the “defense” of the players and that “there is no balanced coverage in the Duke case. There is just one defense-themed story after another.” He demanded for prosecutor Mike Nifong “the privilege of seeing the case unfold at trial” against the players, rather than dropping the prosecution.

Sadly, both Wilson and Cohen still have their jobs, suggesting that liberal bias is viewed as a plus when it comes to employment with the “mainstream” media. (Cohen’s “evidence-free” commentaries denouncing Justice Scalia are a self-parody of left-wing bias.)

I don’t agree with Justice Scalia on everything. (See my law journal article criticizing the ruling he and the “conservative” justices issued in Morse v. Frederick.)  But the liberal bias of Supreme Court press coverage is obvious to me.

UPDATE, Oct. 27, 4:12 p.m.: the reporter who made the false claim about Scalia (Howard Fischer) has now deleted his claim that Scalia would uphold segregation from his story, tacitly admitting that he was wrong.  But he did not disclose the error in his original story for readers.  As a commenter to his story, jayr23, notes

“Sorry Scalia. I disagree with you in general but it looks like you were terribly misquoted here. The only hack is the reporter.

Mr. Fischer should probably correct this and then apologize.

BTW, a correction is not simply a deletion of the offending material! Sheesh. Journalism has sunk to an all time low.”

SECOND UPDATE, Oct. 27, 6:22 p.m.: The erroneous story’s internet version has now been revised to contain a vague reference to its error, in a passage that reads:

“Editor’s note: This is an updated version of a story that was originally posted Oct. 26. It removes an incorrect reference to Brown v. Board of Education in the initial version.”

Hate Crimes Bill Passes, Eroding Civil Liberties and Double Jeopardy Safeguards

by Hans Bader on October 23, 2009 · 1 comment

in International, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

Yesterday, Congress approved a measure to dramatically expand the existing federal hate crimes law, by adding it to an unrelated defense appropriations bill.  The measure would expand current law to cover virtually all hate crimes already covered by state law (both by adding gender, sexual orientation, disability, and transgender characteristics to a law originally designed to protect racial minorities, and by getting rid of the requirement that a hate crime effect federally-protected activities to be prosecuted in federal rather than state court.)

The measure was opposed by the U.S. Commission on Civil Rights on double-jeopardy grounds.  As I previously explained at length, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy.  Civil libertarians like Nat Hentoff and Wendy Kaminer also object to the bill on double-jeopardy grounds.   Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of trying all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).

Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial.  When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.

The bill contains speech-related provisions designed to allow prosecution of people who are not violent and do not intend to cause hate crimes, but whose speech inadvertently incites a hate crime by some violent, bigoted nut.  For now, courts are likely to block such prosecutions on First Amendment grounds, under the Supreme Court’s Brandenburg decision banning prosecutions of people whose speech unintentionally incites violence or other illegal acts (and the federal appeals court ruling in White v. Lee faithfully applying that principle to speech that incites violations of federal civil-rights and anti-discrimination statutes).  But if the ideological composition of the Supreme Court changes substantially, it is conceivable (although far from certain) that that could change.  Although the provisions will probably prove unsuccessful in censoring speech, it speaks volumes about the mindset of the hate-crimes bill’s backers that they would even try.

The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision, as I explained earlier.

Passage of the bill was aided by lousy reporting, in which journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.

Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.”  Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded (and DNA evidence showed), and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

The Obama administration supports the hate-crimes bill, which it used as a wedge issue in the 2008 election.

The Obama administration recently urged restrictions on hate speech and blasphemy at the United Nations, joining in calls by left-wing lawyers and conservative Islamic countries to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation.  Religious minorities have often been persecuted for “blasphemy” in Islamic countries for disagreeing with Islam, criticizing the prophet Mohammed, or interpreting Islam’s holy book, the Koran, differently than the majority of Muslims do.  In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, defending the death penalty against racism charges, and calling homosexuality immoral.  In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.

Obama Accepts “Blasphemy” Exception to Free Speech

by Hans Bader on October 21, 2009

in International, Labor, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

In USA Today, liberal law professor Jonathan Turley is criticizing the Obama administration for endorsing a “blasphemy” exception to free speech: “Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.”

Granted, blasphemy may be patently offensive to significant numbers of people, but it is precisely such hard cases for which First Amendment protection is most important. Consider the fate of those unfortunate enough to live in countries without such protections. (Note: Some readers may find the following examples shocking.)

Religious minorities have often been persecuted for “blasphemy” in Islamic countries for disagreeing with Islam, or interpreting Islam’s holy book, the Koran, differently than the majority of Muslims do. Turley says that Western blasphemy cases have included the arrest of a Dutch cartoonist for depicting a Christian fundamentalist and a Muslim fundamentalist as zombies who want to marry and attend gay rallies; the investigation of an Italian comedian for joking at a rally that in 20 years, the Pope will be in hell, tormented by gay devils; the exclusion of a Dutch politician from Britain because he made a movie describing the Quran as a “fascist” book and Islam as a violent religion; and the prosecution of writers in Austria, India, and Finland for calling Mohammed a “pedophile” because of his marriage to 6-year-old Aisha (which was consummated when she was 9).

Earlier, conservatives and civil libertarians criticized the Obama administration for endorsing restrictions on so-called “hate speech” at the United Nations. The administration is backing proposals to classify hate speech as a violation of international human rights law. Left-wing lawyers are now likely to argue that these proposals constitute “customary international law” binding on the U.S., as a consensus interpretation of treaties the U.S. has already signed, like the CEDAW equal rights treaty. The U.S. courts are unlikely to accept such arguments in the near future, although if Obama manages to appoint enough left-wing judges, the chances of such arguments prevailing will increase.

In Canada, hate speech laws have been used to punish ministers for anti-gay sermons. In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, defending the death penalty against racism charges, and calling homosexuality immoral. Ironically, hate speech laws have often been used against minorities in the Third World, with prosecutors arguing that advocating the rights of minorities is an inflammatory form of racial separatism.

Left-wing lawyers claim that “customary international law” dictates a host of controversial requirements that few countries would voluntarily adopt on their own, like mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” in academia, government-sponsored “access to rapid and easy abortion,” “comparable worth,” and “the application of quotas and numerical goals and measurable targets aimed at increasing women’s political participation.”

The UN is quite hostile to human rights, as is its “Human Rights Council,” which has included genocidal dictatorships among its members.  The U.N. recently declared Fidel Castro, the longtime Communist dictator of Cuba, a “World Hero.” Castro killed thousands and thousands of people during his rule, torturing some to death (including a few American citizens), and Cuba remains an oppressive dictatorship even today.

While advocating bans on hate speech, the Obama administration has turned a blind eye to hate speech and hate crimes by its allies and supporters.  It turned a blind eye to voter intimidation by the New Black Panther Party, which is a racist, anti-Semitic hate group that backed Obama and included an Obama poll-watcher and Democratic Party official in Philadelphia.  It was silent about the violent, racially-charged SEIU assault on a black conservative critic of Obama’s health care proposals.  The administration and its allies use the SEIU as shock troops at town hall meetings, and Obama recently appointed a high-ranking SEIU official, Craig Becker, to the NLRB.  (The SEIU is closely linked with, and even overlaps with, the controversial group ACORN, which gave Obama his start, and whose affiliate received $800,000 from his campaign.  ACORN was recently involved in a high-profile scandal promoting underage prostitution.)

While turning a blind eye to hate and prejudice from the Left, the administration has backed a bill in Congress, now virtually certain to become law, that will allow some people found innocent of hate crimes in state court to be reprosecuted all over again in federal court, taking advantage of a loophole in Constitutional protections against double jeopardy.

Congressional Conference Committee Attempts to Turn Hate Crimes Law Into a Speech Code

by Hans Bader on October 14, 2009

in Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

Hate crimes are irrational, and what sets them off is often unpredictable. The hate-criminal whose sentence was upheld in Wisconsin v. Mitchell by a unanimous Supreme Court attacked a young white boy because of the outrage he felt after watching the movie Mississippi Burning, which depicted racism against black people in the Deep South. To him, two wrongs made a right.

If the victim had attempted to sue the makers of Mississippi Burning for inciting the hate-crime, the lawsuit would have been dismissed under the Supreme Court’s rulings in Brandenburg v. Ohio (1969) and Hess v. Indiana (1973), which say that the First Amendment protects speakers from being held liable for inciting a crime unless they intended to incite the crime, and to cause it imminently. This is the so-called Brandenburg test, and appeals courts have consistently applied it to all but one context (workplace discriminatory harassment claims under the federal civil rights laws).

A conference committee reconciling House and Senate versions of the federal hate-crimes bill recently decided to reject the Brandenburg test, however, hoping to snare people who do not intend to incite a hate crime in hate-crimes prosecutions. Both the House and Senate had earlier passed versions of the federal hate crimes bill that included language intended to limit, rather than expand, its reach over speech. The conference committee turned this language inside out, converting the free-speech language into anti-speech language. It inserted new language that made it clear that the absence of any intent to incite a crime should not necessarily protect the speaker from punishment if the government can show a “compelling interest” in prohibiting the speech that cannot be achieved through less “restrictive” means. A speaker can now be convicted even if his “exercise of religion, speech, expression, or association was not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another.” (This changed version then passed the House as an amendment to a defense appropriations bill, and it is now expected to pass the Senate in a few days.)

The purpose of the conference committee’s change appears to be to allow the government to prosecute people for otherwise protected speech, under the theory that it is “incidentally swept up” within a ban on discriminatory conduct — a rule uniquely applied to workplace discrimination law. In sexual harassment cases, employers get held liable for allowing employees to read things that incite them to harass fellow employees, even though such liability would not be possible under Brandenburg, which requires a closer link between speech and the incited action. (See Robinson v. Jacksonville Shipyards (1991) (trial judge ruled that employer was partly liable for letting employees read porn, which made them view female employees as sex objects, and thus resulted in sexual harassment).) The argument is that such speech is not banned for its own sake, but rather is “incidentally swept up” in a larger ban on discrimination, an “incidentalness” that somehow is supposed to make the ban on speech less objectionable (legal commentators have long ridiculed this reasoning, but the courts sometimes accept it in the workplace). (See R.A.V. v. St. Paul (1992) (Supreme Court said in dictum that race-based fighting words could be “incidentally swept up” within a ban on racial and sexual harassment in the workplace).)

Courts have by and large refused to restrict speech on this basis in society as a whole, outside the workplace. In White v. Lee, 227 F.3d 1214 (9th Cir. 2000), a federal appeals court held that the speech-protective Brandenburg test — not the speech-hostile standards of workplace discrimination law — applied to investigations under the Fair Housing Act, meaning that public speech against housing projects for minority groups like recovering drug users and the mentally ill could not be “incidentally swept up” within a statutory ban on discriminatory acts. Such speech remained protected, the appeals court unanimously ruled, even if it led to municipal action against such housing projects, as long as it did not intentionally cause imminent attacks on minority group members. The court rejected the argument that the speech lost its First Amendment protection because it was “discriminatory” in its purpose and effect. By contrast, in Presbytery v. Florio, federal district judge William Bassler suggested that anti-gay handbills could be restricted under New Jersey’s gay-rights law based on its “secondary effect” of causing discrimination against gay people, regardless of the Supreme Court’s Brandenburg ruling.

The conference committee’s changes to the hate-crimes bill appear to be intended to nudge courts interpreting the hate crimes law towards a more speech-hostile “secondary effects” interpretation, akin to Judge Bassler’s interpretation of the gay-rights provisions in the New Jersey Law Against Discrimination.

Courts may well decline this invitation to regulate speech so broadly, however. Under the canon of constitutional doubts, courts are supposed to construe statutes narrowly to avoid potential constitutional problems. Criminal statutes like hate-crimes laws have to be more precise than a purely civil enactment like a workplace discriminatory harassment law. Interpreting the hate-crimes statute as not requiring that speech “imminently” and intentionally incite a hate crime for a conviction would render the hate-crimes law unconstitutionally vague, meaning that courts would generally interpret the law as requiring intentional, imminent incitement, under the canon of constitutional doubts. On the other hand, a court might refuse to do that based on the argument that it cannot rewrite the explicit language of the hate-crimes law inserted by the Conference Committee, which expressly assumes that speech can be banned even if it does not intentionally incite a hate crime. That would present a serious constitutional problem.

The language of the hate-crimes bill itself requires a violent crime to have occurred for a prosecution. However, another federal statute, the federal aiding and abetting statute, 18 U.S.C. 2, holds people liable for a federal crime even if they did not physically perform it, as long as they “induce,” counsel, aid, or abet it: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” The conference committee appears to be trying to get courts to interpret those words, such as “induces,” broadly at the expense of free speech, by preventing courts from construing those words narrowly to comply with the Supreme Court’s Brandenburg test.

In the long run, as the political climate shifts, and courts begin watering down the Brandenburg test even outside the workplace, such language could open the door to prosecutions over speech that offends a prosecutor, if it allegedly had some influence on a hate criminal. In Canada, hate-crimes laws were on the books for decades before they began to be used in earnest against publishers for peacefully dissenting against politically correct orthodoxies or offending radical Islamists.

Moreover, even if the attempt to convert the hate-crimes law into a speech code or hate-speech law fails, it still says volumes about the mind-set of the bill’s backers, who want to take a law seemingly aimed at violent hate crimes, and use it as a backdoor way of censoring speech, contrary to the wishes of many of their colleagues. Members of the public should ask the members of the conference committee, like Senator James Webb (D-VA), why they substituted this harmful language for the harmless language in the previous House and Senate versions, which were designed to protect against censorship, rather than cause it.

The hate crimes bill raises other problems as well. While the original version of the hate-crimes bill did not raise free-speech problems (contrary to the claims of the Religious Right, which also focused obsessively on the inclusion of sexual orientation in the bill), it did, sadly, seek to take advantage of a loophole in constitutional protections against double jeopardy (as I noted here and here), and it also did raise serious constitutional federalism issues. Those problems are equally present in the version of the hate-crimes bill that is now slated to be enacted by Congress.

Hate Crime in St. Louis? Obama Backers Beat Up Black Critic of Health-Care “Reform,” Use Racial Slurs

by Hans Bader on August 9, 2009 · 2 comments

in Healthcare, Labor, Legal, Personal Liberty, Politics as Usual, Sanctimony

Kenneth Gladney, a black critic of Obama’s health-care plan, was beaten, kicked, and called racist names by members of the SEIU, a corrupt and powerful left-wing union that backs Obama’s plan, leaving him wheelchair-bound and too weak to speak. This apparent hate crime took place at a St. Louis “town hall” meeting. SEIU members are bused in to town hall meetings called by liberal lawmakers in order to create the illusion of grassroots support, and intimidate would-be critics.

To curry favor with the corrupt SEIU, the Obama Administration has betrayed union workers by gutting federal regulations that help uncover corruption by union leaders and their misuse of union members’ dues. The SEIU spent over $60 million to elect Obama.

Although the federal deficit has exploded, due to massive new government spending, the Obama Administration wants to pile on even more federal spending, including a health-care “reform” proposal predicted to cost at least $1,000,000,000,000 ($1 trillion). In reality, Obamacare will likely cost far more than predicted, the way past health-care expansions always have.

One of Obama’s own advisers says the Obama Administration’s health-care plan will harm people with insurance while raising their taxes. CNN says Obamacare will take away 5 freedoms. It will also destroy many affordable health-care plans while breaking Obama’s campaign promises.

ObamaCare also contains subsidies for left-wing community organizers, and preferences for illegal aliens, who are exempt from its taxes and penalties, but may be able to access its benefits due to lack of meaningful eligibility verification safeguards.

The Obama Administration has a glaring double standard when it comes to hate crimes. It has turned a blind eye to hate-crimes committed by liberals, such as voter intimidation in Philadelphia by black panthers who included a Democratic official and Obama poll-watcher. Yet it has advocated reprosecuting in federal court other people found innocent of hate crimes in state court, taking advantage of a loophole in constitutional protections against double jeopardy.

The Obama’s Administration’s Strange Double Standards on Hate Crimes, Terrorism, and Health Care: Soft on the Guilty, Cruel to the Innocent, Unfair to Taxpayers

by Hans Bader on July 30, 2009 · 3 comments

in Healthcare, International, Legal, Personal Liberty, Politics as Usual, Sanctimony

When black panthers were caught on videotape menacing white voters in Philadelphia, using nightsticks and racial epithets to drive them away from the polls, Obama political appointees, including Assistant Attorney General Tom Perelli, intervened to dismiss the lawsuit that had been won against them by career Justice Department lawyers — dismissing the case after it had already been won! The Obama political appointees insisted that the Justice Department should throw out its victory by not permitting a default judgment against two of the defendants even after the court clerk had already entered a default, claiming lack of evidence — even though the evidence of voter intimidation was captured on videotape! (The Obama appointees did allow the court to enter a toothless injunction against the third of the three defendants, which did nothing more than instruct him not to engage in such criminal acts again. But the defendants have paid no penalty for their crimes).

While bending over backwards to protect black hate-criminals who menaced voters in violation of the Voting Rights Act, the Administration has insisted that others found innocent of hate crimes in state court should be prosecuted all over again in federal court, relying on a loophole in Constitutional protections against double jeopardy. The recently passed federal hate-crimes bill, which Obama has pledged to sign, broadens the federal hate crimes law to the point where it punishes the same conduct already prohibited by state criminal laws and hate-crimes laws, allowing federal prosecutors to bring charges all over again after a jury has found that the defendant is not guilty of hate crimes.

As law professor Gail Heriot, a member of the U.S. Commission on Civil Rights, notes in the Philadelphia Inquirer, advocates of the federal hate crimes law have insisted that even in state cases where the evidence of a hate crime was very weak, leading to acquittals, federal reprosecution is warranted. For example, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.” Amazingly, even though DNA evidence proved the Duke Lacrosse players did not commit any rape (much less the racially-motivated rape they were accused of), and the North Carolina attorney general has admitted that they were innocent, there are still those who wish they had been prosecuted in federal court.

The U.S. Commission on Civil Rights voted 6-to-2 to oppose the federal hate-crimes bill. The Commission called the bill a “menace to civil liberties” because “its most important effect will be to allow federal authorities to re-prosecute a broad category of defendants who have already been acquitted by state juries.” Thus, it will erode protections against double jeopardy.

But Congress chose to heed instead the 2 dissenting Commissioners, such as Michael Yaki, who has argued that the bill was necessary to allow people found not guilty of a hate crime in state court to be reprosecuted all over again in federal court. In his July 6 San Francisco Chronicle website commentary “Why We Need the Matthew Shepard Hate Crimes Bill,” Yaki points to the example of Joseph Silva and George Silva, who were found guilty of a crime in California state court, but not guilty of committing it for racial reasons, as an example of people who need to be reprosecuted for hate crimes in federal court. In fact, the Silvas are already being reprosecuted by the Obama Justice Department in federal court under the existing, narrow federal hate-crimes law, which only reaches the minority of hate crimes that affect federally-protected activities. The new hate-crimes law eliminates the longstanding requirement that hate crimes affect federally protected activities before federal prosecutors have jurisdiction to reprosecute them, making most state hate-crimes federal hate-crimes as well. (The Obama Justice Department “strenuously resisted efforts to tighten the bill’s language” to eliminate unjustified prosecutions).

A desire to get around constitutional double-jeopardy protections was also voiced by many backers of the bill, like the Leadership Conference on Civil Rights and MALDEF, which pointed to a state jury’s acquittal of Pennsylvania teenagers accused of a hate crime against an illegal alien as a reason for passing the federal hate-crimes bill.

While seeking to erode the constitutional rights of American citizens, the Obama Administration has given foreign terrorists rights that they are not entitled to under the Constitution, such as giving enemy combatants captured in Afghanistan Miranda warnings even though that is not legally required. Terrorists captured overseas by U.S. troops are not entitled by the U.S. Constitution to Miranda warnings. Nor are Miranda warnings required by Afghan law, international law, or treaties like the International Covenant on Civil and Political Rights.

Even the liberal Washington Post, which has not endorsed a Republican for President since 1952, has criticized Obama’s foreign policy, admitting that Obama has shown “willful disregard of political oppression” by left-wing dictators. Meanwhile, he has attacked friendly governments in places like Honduras, the Wall Street Journal notes. All too often, Obama has behaved like a friend to our enemies, and an enemy to our friends.

Many supporters of the federal hate-crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of defendants in state court will frequently trigger demands for federal prosecution.”

Obama is also guilty of double standards in health-care. He’s trying to push through an ill-conceived health-care overhaul at home which will give preferential treatment to illegal aliens by qualifying them for federal health-care coverage, while exempting them from proposed taxes that would apply only to citizens.

One of Obama’s own advisers says his health-care plan will harm people with insurance while raising their taxes. CNN says Obamacare will take away 5 freedoms. It will also destroy many affordable health-care plans while breaking Obama’s campaign promises.

Tourism Bill to Be Combined With Anti-Civil-Liberties Hate Crimes Bill

by Hans Bader on June 16, 2009

in International, Legal, Nanny State, Odds & Ends, Personal Liberty, Politics as Usual, Sanctimony

If you were a tourist, would you like to come to a country where you could be tried twice for the same crime — even if you were found innocent the first time around? Not me. But the Senate will likely attach a bill that promotes such reprosecutions to the Travel Promotion Act, reports the Christian Science Monitor. Liberal Senators plan to amend the Travel Promotion Act, a bill to attract international tourists to the U.S., by combining it with a deeply controversial federal hate-crimes bill. The hate-crimes bill’s supporters want to allow people who have been found not guilty in state court to be reprosecuted all over again in federal court.

By adding the hate-crimes provisions as an amendment to an unrelated bill, they hope to prevent the hate-crimes provisions themselves from being amended by Senators seeking to limit the reach of federal hate-crimes law. The hate-crimes legislation will likely “be amended to the Travel Promotions Act . . . which is scheduled to be voted on this week. The report cites a Democratic source as saying the legislation would be approved by Wednesday.”

On April 29, the House voted 249-to-175 to pass the federal hate crimes bill, which the bill’s supporters explicitly want to use to prosecute people already found innocent in state court all over again in federal court. Such reprosecutions are, sadly, allowed under a Constitutional loophole known as the “dual sovereignty” doctrine, which says that state and federal governments are different sovereigns, and that double jeopardy only applies when you are prosecuted twice by the same sovereign. (This loophole was established in the Supreme Court’s 5-to-4 Bartkus decision, over a stinging dissent by Justice Black).

In the past, the possibility of reprosecutions was viewed as a vice, not a virtue, and civil-rights advocates and lawmakers alike have sometimes cited this risk in opposing bills broadening the reach of federal criminal laws. But civil-rights groups now view double jeopardy as a virtue when it comes to people accused of hate crimes. They consider hate crimes so terrible that not even innocence should be a defense.

The latest example of this comes from the Leadership Conference on Civil Rights (a coalition of hundreds of liberal civil-rights groups including the ACLU), and the Mexican American Legal Defense and Educational Fund in a May 5 blog commentary entitled, “Pennsylvania Teenagers Acquitted of Hate Crime; Federal Law Needed.” It approvingly quotes the General Counsel of MALDEF arguing that the federal hate-crimes bill is needed based on not-guilty verdicts like the recent acquittal in state court of teenagers accused of a hate crime against an illegal alien from Mexico: “Last week, the House of Representatives passed the Local Law Enforcement Hate Crime Prevention Act, which will . . . give federal government jurisdiction over prosecuting hate crimes in states where the current law is inadequate. ‘[T] his verdict underscores the importance of the passage of this Act,’ said Henry Solano, MALDEF interim president and general counsel. ‘It is time for the Department of Justice to step in and bring justice to the Ramirez family and send a strong message that violence targeting immigrants will not be tolerated and will be prosecuted to the full extent of the law.’ The Justice Department is currently investigating whether to prosecute the two teenagers under federal civil rights statutes.”

By contrast, four members of the U.S. Civil Rights Commission opposed the federal hate-crimes bill in an April 29 letter, calling it a “menace to civil liberties,” since its “most important effect” will be to circumvent double-jeopardy guarantees. The full U.S. Commission on Civil Rights subsequently decided to oppose the bill.

MALDEF and the Leadership Conference on Civil Rights are not alone in seeking to reprosecute people found innocent in state court. Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

Civil libertarians like Wendy Kaminer and law professors like Gail Heriot have criticized the federal hate-crimes bill for taking advantage of a loophole in constitutional double-jeopardy protections.

The hate-crimes bill also violates constitutional federalism safeguards, such as the Supreme Court’s decision in United States v. Morrison (2000).

Supporters of the hate-crimes bill have all sorts of lame rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had “inadequate resources” or were of “questionable effectiveness.” (These rationalizations make no sense and have no principled limits: there is no evidence that state juries are more biased than the federal juries that would hear federal hate-crimes cases, or that they are typically biased; and even well-funded prosecutors have complained of having inadequate resources).

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution.”

The bill’s sponsors seldom talk about that controversial aspect of the bill, however, when addressing the general public. Instead, they trumpet the fact that the hate-crimes bill would include gays, lesbians, and transgendered people among the classes of people it covers (the existing federal hate-crimes law only covers race, but not gender, sexual orientation, or disability, and it does not reach most hate-crimes, but rather only those that involve federally-protected activities).

The bill’s supporters, such as the National Center for Lesbian Rights and the ACLU, claim the law is needed because of the case of Angie Zapata. Zapata is a transgender woman whose lover killed her when he found out she was biologically a man. But this argument makes little sense, given that Zapata’s killer was swiftly convicted and sentenced to life in prison without the possibility of parole by a Colorado state court, which found the killer guilty of both murder and hate crimes. (The federal hate crimes bill does not provide for the death penalty, and its maximum penalty is the same one that Zapata’s killer got: life without parole).

But precisely for that reason, a federal hate-crimes law is duplicative and unnecessary. Moreover, even the few states that don’t have hate-crimes laws, like Wyoming, still punish hate criminals under their laws against murder and assault. The killers of Matthew Shepard were given life sentences, which is the maximum penalty available under the federal hate-crimes bill. (Ironically, the Wyoming prosecutor wanted them to get the death penalty, while liberal groups like Lambda Legal, which supports the federal hate-crimes bill, oppose the death penalty in all cases). There is no evidence that any state gives people who commit hate crimes lesser sentences on average than people who commit similarly violent crimes not motivated by bias.

There are plenty of reasons to oppose the federal hate crimes bill, which is known as the Local Law Enforcement Hate Crimes Prevention Act of 2009. But since it was used as a political wedge issue in the 2008 election by both the Democratic Party and President Obama, who support it, there is little doubt that it will pass Congress and be signed into law by the President.

The ACLU long opposed the loophole in Constitutional double-jeopardy protections that the bill is designed to exploit. But it switched its longstanding position in order to back the federal hate crimes bill, apparently believing that civil-liberties must be sacrificed in order to fight hate.

The ACLU’s support for the federal hate-crimes bill is hypocritical for another reason: the bill seeks to circumvent double-jeopardy protections recognized by a treaty called the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified (albeit with a long series of reservations, understandings, and declarations — including one dealing with double jeopardy) in 1992. The ACLU has also long argued that the United States should not only comply with that treaty but give it a very expansive interpretation, and not seek to hide behind any reservations made by the U.S. in ratifying the treaty.

Article 14 of the treaty specifically prohibits double jeopardy, without any exception for the loophole relied on by supporters of the federal hate crimes bill, mandating that “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted.”

But the ACLU conveniently ignores the treaty when it comes to the federal hate-crimes bill, even though the ACLU has sought to stretch the treaty’s language to achieve a host of liberal political goals, such as mandating “affirmative action” in the U.S. The ACLU also has argued for an expansive interpretation of the treaty to require benefits for illegal aliens. For example, the ACLU criticizes the U.S. Supreme Court’s decision in the Hoffman Plastics case, which refused to award illegal aliens backpay against employers who fired them. The ACLU’s bizarre interpretations of the treaty conflict not only with its language, but also with the longstanding practices of most ICCPR signatory countries.

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