Saturday, October 31, 2009

Ends, Means, and the Thought Police

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Justice Jackson, writing for the Court in West Virginia State Board of Education v. Barnette.

Wednesday, President Obama signed the latest hate crimes law. Greenfield's already taken it on at length (here). I'm doing the short version.

The idea behind hate crime law is that if you hurt someone for poitically incorrect reasons - due to the person's race, religion, national origin - that's a special sort of crime. The new law adds to the list of prohibited reasons for violent crime gender, sexual orientation, gender identity and disability. Do the bad for the bad reason, and there's a federal offense.

Put another way, the new law says that having bad thoughts while committing violent crimes is also a crime. It's another one of those cases where we have to bring out the rule: Noble Motives Lead to Bad Legislation.

The problem, of course, is that the Constitution (and good sense) protects both free speech and free thought. Even bad speech and bad thoughts (whatever those might be). As Justice Harlan wrote in Cohen v. California, it is "often true that one man's vulgarity is another's lyric." And it's not like the law is necessary. The underlying acts are themselves crimes. Within statutory sentencing ranges, motivation is generally a basis on which sentences can be increased anyway. And there are already federal criminal laws used to prosecute violent civil rights violations when the states are unable or unwilling to obtain convictions on the underlying offenses. (That's what was done to the cops who beat Rodney King.)

So we've made a hash of the Constitution in order to punish bad ideas. And since the acts that lead to the punishment are already crimes - well, there's just no point.

And this isn't the only case where the Obama seems comfortable abandoning principles of free speech and free thought in favor of avoiding giving offense. We joined with Egypt in sponsoring a resolution in the UN's Human Rights Council that says, "The exercise of the right to freedom of opinion and expression is one of the essential foundations of a democratic society," but also condemns "negative racial and religious stereotyping" and
urges States to take effective measures, consistent with their obligations under international human rights law, to address and combat such incidents.
So there it is again. Free speech is an absolute virtue but if it's offensive, it should be stopped.

Look, I'm not saying that the former professor of Constitutional Law is an opponent of free speech. He certainly hasn't made the sorts of comment that came from the Bush adminstration after September 11.

You remember that one. Bush had called the terrorists who flew the plaines "cowards." Bill Maher disagreed.
Staying in the airplane when it hits the building. Say what you want about it. Not cowardly.
The response from the Bush administration, via Press Secretary Ari Fleischer,* Americans
need to watch what they say, watch what they do. This is not a time for remarks like that, there never is.
But Obama has also not been a forceful advocate for civil liberties. It's of a piece.

And it's not just the feds. There is, for instance, the Chicago Police Department as reported by Packratt at Injustice Everywhere.

On the same day a study released a damning report finding that Chicago’s civil service review board overturns decisions to discipline police officers found to have committed acts of misconduct in a majority of cases and that officers found to have committed misconduct are rarely fired because of this…

The city announced that they are moving forward with a plan to criminally charge people who file police misconduct complaints that are later ruled as unfounded by internal investigations… and if that’s not enough to discourage complaints about police misconduct they also announced that they are taking every civil rights lawsuit to trial and appeal instead of offering settlements from this point forward.

So… Apparently Chicago’s solution to being criticized for failing to discipline bad cops is to make sure everyone is too afraid to complain about bad cops.

Nor is it always government. Matt Brown, an Arizona criminal defense lawyer with a blawg had the temerity to write about a lawyer accused of smuggling drugs to an inmate at the county jail. He says it's a hot topic of conversation among the local criminal defense bar. He noted that this lawyer is the second one to be accused of criminal conduct in representation of the same defendant. It made him wonder. Makes me wonder, too.

Ah, but a few of Matt's brothers and sisters wondered something else: How could he be so outrageous as not to decry the accusations! They savaged him in the comments to his post. when he posted again in wonder at the reaction, they savaged him again. When Scott Greenfield came to his defense, one of them savaged Matt yet again (and Scott, some, too) in the comments to Scott's post.

I understand that the lawyer has friends. And I understand, for sure, that the local criminal defense bar must stand up for members of that bar who are accused of criminal wrongdoing (just as they should stand up for prosecutors and cops and judges who are, but with maybe a bit more sense of a personal stake). I get that.

I also get that comment on topics of public interest is what we do. And we'd better be damned sure about things before we condemn ourselves for wondering aloud. The judges condemn us, and sometimes yank our licenses, for questioning them. We think, rightly, that should be protected speech. So should questioning each other - and wondering how two lawyers both got caught up in allegations of similar misconduct witht the same defendant.

Long ago, back when I was a kid, they taught us to suck it up.
Sticks and stones may break my bones, but names can never hurt me.
Shakespeare made much the same point in Romeo and Juliet. Names, Juliet said to Romeo, don't count. It's who you are:
What's in a name? that which we call a rose
By any other name would smell as sweet;
Except, well, as Bette Midler said
Everyone's just too fucking sensitive.
*Fleischer insists today that the remark was not intended to be an attack on Bill Maher. Maybe. There's some ambiguity in the transcripts. Regardless, it was widely understood at the time as a threat to clamp down on free speech, an understanding not then repudiated by Fleischer or anyone else in the administration.


  1. When I first heard of “hate crimes” bills, I had a similar reaction but I later realized there are true differences between hate crimes and other crimes. The motives and thoughts are different but this is irrelevant. The difference is the effect of the crime.

    If I go to a synagogue and write “Rabbi Smith must die” it is very different from writing “Jews must die.” One is a threat to a particular person and one is a threat to a large group of people. These are different crimes.

    Let’s go to the civil rights era and compare two crimes. In crime one, a man is killed in a jealous rage. In crime 2, an uppity black man is lynched. Both crimes are murders but in the lynching there is an implicit threat to all blacks who want to exercise their civil rights. The effect of the crimes is different and the punishment should be as well.

  2. But see, in the lynching there's also the crime of civil rights violation and, if you can prove it, additional crimes of intimidation and the like (depending on your jurisdiction, of course). And within sentencing ranges, there's commonly room that judges have to increase sentences for criminal effects.

    The law, including criminal law, parses all sorts of things. The killing in a jealous rage is likely to be manslaughter. The killing because a black man is seen as not knowing his place is likely murder, or even some intensified form of murder - again, jurisdictions vary in details. So the crimes are different because the acts are different and the is different.

    The alternative really is punishing the thought. And that's what we don't (shouldn't) do.

  3. Formerly anonymous.

    I think we agree almost everything . There should be extra punishment for the intimidation aspects of certain crimes. I am not a lawyer but I thought that was what the hate crime bills were for. I guess you are saying that they are not needed and overly broad.

    Perhaps this is semantic (legal vs. common word) but I do not think that a normal citizen can violate someone's civil rights.