HATE IS HARMFUL AND DANGEROUS
BUT CRIMINALIZING IT IS TYRANNY
“I disapprove of what you say, but I will defend to the death your right to say it.”
Unfortunately, it appears that this oft-cited declaration in defense of intellectual liberty comes from a book about Voltaire, and that, even if it reflects his opinion, he never actually said it. Which may serve as a metaphor for the current tenuous condition of the First Amendment.
Recent weeks have brought parallel scandals surrounding the DOJ’s snooping into the confidential communications of various media organizations and the IRS’ sandbagging of conservative groups seeking tax-exempt status — both of which are growing like Topsy and posing significant threats to certain prominent members of the Obama Administration. We’ve also seen a federal judge allow the use of so-called “National Security Letters” — secret, warrantless orders which cannot be discussed or even acknowledged publicly — to let the government go fishing in the user files of Google, one of the world’s great depositories of personal data.
Now the conservative watchdog group, Judicial Watch, reports that the Justice Department is warning it may take legal action against individuals “using social media to spread information considered inflammatory against Muslims” on the basis that such talk could be a violation of civil rights.
At the invitation of the American Muslim Advisory Council of Tennessee, or by arrangement with the AMAC — Who knows how such things actually come about? — Bill Killian, U.S. attorney for the Eastern District of Tennessee, and Kenneth Moore, special agent in charge of the FBI’s Knoxville Division, are giving a presentation titled, “Public Disclosure in a Diverse Society” tonight (Tuesday, June 4), In Tullahoma, near Chattanooga.
According to the Tullahoma News:
“Killian and Moore will provide input on how civil rights can be violated by those who post inflammatory documents targeted at Muslims on social media.
“‘This is an educational effort with civil rights laws as they play into freedom of religion and exercising freedom of religion,’ Killian told The News Monday. ‘This is also to inform the public what federal laws are in effect and what the consequences are.’
“Killian said the presentation will also focus on Muslim culture and how, that although terrorist acts have been committed by some in the faith, they [most Muslims] are no different from those in other religions.”
I’m sure it will be an informative session and a great opportunity for people in Manchester-Coffee County to get to know their Muslim neighbors (assuming there are Muslims in the crowd; clearly, the event is geared toward non-Muslims). I urge anybody living in the area to attend.
But let’s consider the threat implicit in this exercise:
If you say something “inflammatory against Muslims,” you can go to jail.
It is certainly true that within the landscape of today’s social media there lies a vast swamp of nastiness and bigotry — as opposed to honest concern about religious or cultural conflict. Anti-Muslim invective shows up from time to time in my Facebook news feed. It’s not a large portion of the messages posted by my Facebook friends. But then, my Facebook friends are, by and large, a pretty good-hearted lot.
On occasion, I have ventured into some rather different territory, following links in search of readers for this blog. I can tell you there are a lot of angry and/or fearful people out there.
Islam stirs quite a bit of apprehension and no small amount of rancor after those terrorist acts which U.S. Attorney Killian notes have been committed by “some in the faith.” But you don’t have to be planning a Facebook campaign aimed at defaming Muslims to worry about the objectionable messages-legal consequences linkage.
The ability of government to threaten such consequences rests on the concept of hate crimes, a well established and court-affirmed category of law that came to prominence in the aftermath of the Civil Rights Movement, and upon which layer upon layer of legal precedent has accumulated. The hate crimes concept has permitted massive extensions of federal jurisdiction into areas of criminal law previously understood as the province of the states.
Determining that a crime was motivated by hate — defined as hostility toward a particular identifiable and protected group — can increase the severity of sentencing. And in cases where defendants have been found innocent of tangible wrongful acts in state courts, federal hate crime charges are often brought under the supposition that, even if someone isn’t guilty of a statutory offense, they may still have transgressed a victim’s civil rights.
It is certainly true that hate has been the source of incalculable criminal acts and human misery through the years. Many people have died and many rights violated at the hands of hate-filled wrongdoers. One has only to review the history of sufferings endured by black people and the frequent unwillingness of local authorities to protect them (sometimes the actually complicity of those local authorities) to understand how the concept of hate crimes came to be.
But however understandable (indeed, justified), however well established and court-affirmed, the concept of hate crimes has at its heart a fundamentally flawed idea: that society can — indeed must — eliminate harmful attitudes by criminalizing them.
To make a certain type of opinion criminal, in and of itself, detached from any particular act, is to ascribe to government the power to dictate the thoughts of its people. That is an idea in total opposition to America, as the nation we assume it to be, and to the Constitution (specifically the First Amendment) as the definitive statement of its foundational principles.
It is, in fact, the very definition of tyranny.
But aside from federal overreach, the hate crimes concept has abetted an atmosphere of belligerence in which everyone who perceives themselves on the receiving end of other people’s dislike or disapproval has been empowered to brand those attitudes hate.
It’s obvious, for instance, that the hate crimes concept is the animating spirit behind the aggressiveness of the Gay Rights movement. And so someone’s objection to two people of the same gender living openly in a sexual relationship, or raising children in that setting, is not a moral reservation. It’s bigotry. In California, after recent legislation, a psychiatric counselor’s suggestion of therapy to help someone control same-sex attraction can make that counselor subject to legal action — even if the client has asked for help and is open to such therapy.
Singer-activist Harry Belafonte provided a picture-perfect illustration of this belligerent outlook when he commented recently on MSNBC’s Al Sharpton program:
“That there should be this lingering infestation of really corrupt people who sit trying to dismantle the wishes of the people, the mandate that has been given to Barack Obama, and I don’t know what more they want. The only thing left for Barack Obama to do is to work like a third world dictator and just put all these guys in jail.”
When opinion can be labeled hate and hate is a crime, we find ourselves right smack in the middle of Thomas Hobbes’ terrifying war of all against all. Anything can be called hate, because the definition of hate is endlessly elastic. It’s anything someone perceives as criticism or rejection or even lack of enthusiasm for whatever is important to him.
And don’t think that’s an exaggeration. Consider an internal document distributed to Department of Justice managers in advance of Lesbian, Gay, Bisexual, and Transgender Pride Month. Titled, “LGBT Inclusion at Work: The 7 Habits of Highly Effective Managers,” it instructs:
“DON’T judge or remain silent. Silence will be interpreted as disapproval.”
“DO assume that LGBT employees and their allies are listening to what you’re saying (whether in a meeting or around the proverbial water cooler) and will read what you’re writing (whether in a casual email or in a formal document), and make sure the language you use is inclusive and respectful.”
This has an all-too-familiar ring. St. Thomas More died not for speaking out against the king, but for remaining silent.
Which brings us to Catholic teaching, as expressed in Paragraph 2499 of the Catechism of the Catholic Church. In this case, the subject is totalitarian governments that manipulate media and the courts in order to suppress the independent exercise of conscience…
“Moral judgment must condemn the plague of totalitarian states which systematically falsify the truth, exercise political control of opinion through the media, manipulate defendants and witnesses at public trials, and imagine that they secure their tyranny by strangling and repressing everything they consider ‘thought crimes.’”
Thought crimes, hate crimes — it’s all pretty much the same thing. And it’s not too much of a leap to apply this reasoning to an analysis of the situation in our own country which, by small steps, has been veering in a totalitarian direction for a long time.
Congress is pressing forward with its investigations of the IRS and DOJ scandals, and we should be pleased that a hunger for truth is growing. On both sides of the aisle, I dare say — it’s beginning to dawn on Democrats that the current administration has pushed long-developing trends to the limit.
But we must not stop at hand-slaps, or even criminal penalties, for the specific bad actors the hearings identify. It’s past time to revisit the legal premises underlying the concept of hate crimes — not just to stop those trends that threaten our basic liberties, but to roll them back.
We cannot depend on the political class to take the initiative. Politicians are deathly afraid to approach this question, knowing full well that appearing in any way reluctant to endorse anti-hate laws pretty much guarantees being tarred as a racist.
But 2014 is coming. And to all you tea drinkers I would suggest pressing the candidates on this issue. It could provide a very helpful tool in deciding which to get behind.
I’m not so naive as to assume we’ve entered some kind of golden age when people no longer harbor prejudices. There will always be hate. No law can eliminate it, and there’s no ignoring it, because it can be a factor in crime. The answer is to enforce the criminal laws that are on the books — mostly state statutes — without encouraging the undue extension of federal power and without contributing to the atmosphere of belligerence that lets people charge hate where no hate may exist.
The legal understanding of years past was that hate goes to motive. It can be a determinate of why a crime was committed, which is always considered in sentencing. But hate (which is to say, thought) is not a crime in itself.
So I’ll tie things up with another famous quote. Like the assumed Voltaire line, it most readily brings to mind someone who didn’t originate it: W.S. Gilbert of Gilbert and Sullivan fame…
“Let the punishment fit the crime.”
Not the thought.
Constitutional attorney Matt Barber, vice president of the Liberty Counsel, reported the Justice Department instructions regarding attitudes toward LGBT employees on the conservative webzine, Townhall…
The National Association of Lay Catholics recently cited the Catechism’s notation on totalitarian thought suppression in a brief discussion of the IRS scandals — with special reference to bureaucratic intimidation of Catholic scholar Dr. Anne Henderschott…
For information about Voltaire and his defense of free speech, see this Wikipedia article which attributes the famous, but apparently apocryphal, quote to Evelyn Beatrice Hall, (writing under the pseudonym S. G. Tallentyre) in her 1906 biographical book, The Friends of Voltaire…