hate speech

Judge Censors Speech About Affirmative Action and Fraud in Racial Set-Asides

by Hans Bader on September 28, 2011 · 2 comments

in International, Legal, Nanny State, Personal Liberty

Political “commentator Andrew Bolt ‘was found guilty Wednesday of breaking Australian discrimination law by implying that fair-skinned Aborigines chose to identify as indigenous for profit and career advancement.’ A judge ‘said he will prohibit reproduction of the offending articles,’ and ‘Bolt and his publisher must meet with the plaintiffs to discuss appropriate court orders that would reflect the judgment.’”

This is an extremely damaging blow to free speech. The problem of fraud in affirmative action programs is neither new nor rare. People who are not minorities often pretend to be minorities in order to obtain benefits under affirmative-action programs and racial set-aside schemes. (The Massachusetts Supreme Court upheld the firing of two brothers who pretended to be black to receive preference in hiring). And people often push the envelope in claiming minority status when they have only a small fraction of non-white or minority ancestry. (For example, beneficiaries of affirmative action included people who were only one-quarter Hispanic, under a consent decree in the U.S. v. New York City Board of Education case.)

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The Meaning of Civility in the Aftermath of the Tucson Shootings

by Hans Bader on January 13, 2011

in Culture, Politics as Usual, Sanctimony, Zeitgeist

In his speech last night, the president called for more civility in American discourse. I discuss what commentators mean by “civility” in a commentary at the Washington Examiner. Appeals to civility are plagued by hypocrisy, double standards, and viewpoint discrimination.

As we noted earlier, there’s no evidence that anything in the current political climate, uncivil or not, contributed to the Tucson shootings, and America’s political climate is fairly tame compared with other cultures and America’s own past.

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.”

Supreme Court Overturns Life Sentences Without Parole for Violent Juveniles, Citing “International Opinion”

by Hans Bader on May 17, 2010 · 3 comments

in Culture, International, Legal, Nanny State, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation, Sanctimony, Zeitgeist

The Supreme Court has just held that violent juveniles cannot be given a life sentence without the opportunity for parole, unless they succeed in killing their victim. Even torturers and rapists who attempt to commit murder cannot be denied the opportunity for release under the Court’s decision today in Graham v. Florida.

Most states have long authorized life sentences without parole for vicious 17-year-olds who commit rape and attempted murder. But the Court looked instead to “international opinion” to declare such sentences “cruel and unusual,” writing that “The United States adheres to a sentencing practice rejected the world over,” illustrating “the climate of international opinion” against life without parole.

The Court’s opinion was joined in by all the liberal Supreme Court justices–including Obama’s appointee, Sonia Sotomayor–and authored by swing vote Anthony Kennedy.  Conservative justices Alito, Thomas, and Scalia dissented.

Chief Justice Roberts agreed with the liberal majority only that the defendant in this particular case deserved a chance for parole.  But he disagreed with its sweeping ruling that all violent juveniles must be given a chance for parole unless they succeeded in killing their victim. He cited the examples of nightmarishly evil people who will now be given an opportunity for parole thanks to the Supreme Court:

“But what about Milagro Cunningham, a 17-year-old who beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill?” asked the Chief Justice. “Or Nathan Walker and Jakaris Taylor, the Florida juveniles who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son?”  These vicious predators will now be free to seek parole.

The Court’s decision today illustrates that the Supreme Court is a liberal court, not a moderate or conservative court. The great majority of states–even “Blue States” like California–permit life without parole for violent juvenile torturers and rapists.  The Court ignored the wisdom of the sages, such as the ancient maxim that “he who is kind to the cruel is cruel to the kind.”

In relying on “international opinion” to decide the case, the Supreme Court ignored the pleas of civil libertarians and libertarian think tanks like the Cato Institute not to smuggle international standards into the interpretation of the American Constitution, since doing so is a dangerous precedent: international law and opinion are often hostile to important American civil liberties like free speech, freedom of the press, and freedom of religion; the right to self-defense against home intruders; and laws designed to secure those protections.

The libertarian Cato Institute, which frequently files amicus briefs in the Supreme Court seeking to promote civil liberties and privacy rights, filed an amicus brief in today’s case asking the court not to rely on “international norms,” since doing so would “undermine the democratic process and rule of law, casting considerable uncertainty over many U.S. laws.” (Disclosure: Competitive Enterprise Institute joined that brief.)  Sadly, the Court ignored that brief.

Courts should not rely on “international opinion” to decide cases, since it is vague and manipulable.  So-called international law is applied selectively by lawyers and judges, who cite real or imagined ”international law”  to push the ideological goals they support, while ignoring actual international court rulings they don’t like.

Left-wing lawyers take vague international treaties and interpret them as mandating liberals’ ideological wishlists, like restricting criticism of Islam and minority religions as “hate speech,” banning Mother’s Day as sexist, and 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.” Never mind that most countries don’t even have affirmative action.

But they ignore foreign law and world opinion when it calls into question liberal policies in the United States. One classic example is the horror that most countries’ courts have for the American practice of letting virtually unguided juries award punitive damages. In most of the world, punitive damages are forbidden.  But you will never see a liberal Supreme Court justice talk about “international law” or “international opinion” when it comes to punitive damages, which are sacrosanct in the eyes of many liberal judges.

Ultimately, even liberals may come to regret the reliance on “international opinion” by today’s Supreme Court decision, which sets a dangerous precedent for civil liberties.

In USA Today, liberal law professor Jonathan Turley earlier criticized the Obama administration for foolishly endorsing a “blasphemy” exception to free speech at the UN, in an effort to curry favor with Muslim countries: “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.”

Turley says Western blasphemy cases have included the arrest of a Dutch cartoonist for depicting Christian and Muslim fundamentalists as zombies; the investigation of an Italian comedian for joking that in 20 years, the Pope will be in hell; the exclusion of a Dutch politician from Britain because he made a movie describing Islam’s holy book as “fascist”; and the prosecution of writers 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 in an effort to ingratiate itself with other countries. The Administration is backing proposals to classify hate speech as a violation of international human rights law.  Some 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, writing about the racial implications of the death penalty, 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.

Obama Signs Hate-Crimes Bill Into Law; Critics Say It Circumvents Constitutional Safeguards Against Double Jeopardy

by Hans Bader on October 28, 2009 · 2 comments

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

Today, President Obama signed into law a bill that will dramatically expand the federal hate crimes law, enabling prosecutors to bring federal charges against people who were previously found innocent of hate crimes in state court.  The hate-crimes provisions were added to a defense appropriations bill, which the President signed in a White House signing ceremony this afternoon at around 2:30 p.m.

The new law dramatically expands the reach of the existing federal hate-crimes law that was already on the books, by getting rid of the requirement that a hate crime affect federally-protected activities to be prosecuted in federal court.  It also adds sexual orientation, gender, disability, and transgender characteristics to a law that was originally designed to protect racial minorities.

The hate-crimes bill was opposed by the U.S. Commission on Civil Rights for allowing the reprosecution in federal court of people found innocent in state court.  The Commission called the new law a “menace to civil liberties” because it is an end-run around constitutional guarantees against double jeopardy.

As explained earlier, 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 thus 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 prosecuting 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 also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision.

Passage of the bill was aided by lousy reporting, in which some 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 has long supported the hate-crimes bill, which it used as a wedge issue in the 2008 election.

As law professors like Jonathan Turley and Eugene Volokh have noted, the Obama administration recently urged restrictions on hate speech at the United Nations, joining in calls to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation in violation of international human-rights treaties. In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, discussing the racial implications of the death penalty, and calling homosexuality immoral.  In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.

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.