More “Hate Crime” Follies in D.C.
Putting the lie to my recent theory that Congress can’t manage to accomplish anything, the House of Representatives voted yesterday to further expand so called “hate crime” legislation to include “those committed because of a victim’s sexual orientation” which will include attacks on lesbian, gay and transgender people. Of course, in typical fashion, Democratic sponsors of the measure used what amounts to blackmail to get it through, attaching it as an amendment to a critical military funding bill rather than having a stand alone vote for the proposal on its own merits.
Now, given how often I have written here in support of gay rights, equality in marriage rights and equal opportunity for gays in the military, you might suppose I’d be in support of this measure. And in one way you’d be right. (Well, sort of…) I mean, if we’re going to keep festooning our legal system with a series of bad, essentially unconstitutional and largely ineffective laws offering special protections to certain interest groups and demographics, then I suppose we might as well include the gays as well.
None of this, though, addresses the fundamental flaws in all of these so called “hate crime” laws. We’ve been through most of it before and I hardly expect the liberal supporters of these unconstitutional measures to change their minds now, but that doesn’t improve the situation at all. There remain two bedrocks questions about these laws which have never been adequately answered by their supporters.
First, there is the very simple question of unequal protection and enforcement of the law. When you expend more resources on the prosecution of, for example, one person’s murder, and apply stiffer punishment to the perpetrator, based solely on the demographic definition of the victim, then you are effectively stating that the lives of those who don’t fit that description are worth less. The mental gymnastics which I see supporters go through to try to deny this never ceases to amaze me.
Second, and more to the question of constitutionality, is the fact that these laws take actions which are already fully covered under current laws and expand them based on absolutely nothing more than what the perpetrator was thinking at the time of the crime. Supporters will, of course, begin chiming in with the tired old argument of, “Nay nay! Motive is taken into account on many crimes!” This line of thought has had more holes shot in it than a swiss cheese, but that never seems to stop them. Motive and thought are critical in finding a suspect and defining the crime as per intent and level, but the views and feelings of the criminal at the time of the act are not punishable.
So, yet again, the Federal Government moves to expand the increasing volume of “thought crimes” in our country, constitution be damned. Sadly, there seems to be far too little spine among officials fearful of angering any block of voters to stop the slide. This Friday proves to be another sad chapter in our legislative history.
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41 Responses to “More “Hate Crime” Follies in D.C.”
I have always gone back and forth over this issue. However, the views and feelings of perpetrators are considered all the time in criminal cases and a regular element in “state of mind” at the time of the crime. They are certainly taken into consideration when it comes to sentencing.
Furthermore, you completely ignore the compelling case for hate crime legislation in that the crime is intended not just to harm to victim, but to instill fear into a entire segment of the population. In some way, they are comparable conceptually from the terrorism laws that sit on the books. The impact of the crime is greater then just the crime itself.
Like Jazz, I am also in favor of gays being allowed to marry and serve in the military. However, I also have a problem with these hate crimes laws, for reasons that I have explained here at TMV numerous times and at my own blog.
But let's put aside our opinions on hate crimes legislation for one moment and consider wha the Democrats in congress did. They weren't able to pass the law on its own merits, so they added it as an amendment to a more popular piece of legislation (a $680 billion defense policy bill) in order for it to pass.
This is dishonest. Gay rights legislation has absolutely nothing to do with with defense policy. By cramming two completely different issues into a single bill, it forces our congressmen and congresswomen to having to make a choice between to false choices: either you vote in FAVOR of both military spending and hate crimes legislation OR you vote AGAINST both military spending and hate crimes legislation.
The vote passed 281-146 with 15 Democrats and 131 Republicans in opposition.
What this means is: not only did a significant number of Republicans vote against a defense policy bill that they would have otherwise supported, but some Democrats voted against the bill (in spite of their support for hate crimes legislation) due to their opposition to the defense spending.
Congratulations, Democrats! Arch liberal congressman Dennis Kucinich is now on record as having voted against hate crimes legislation. Presumably, he voted no because he opposes spending more money on the two wars we are fighting in the Middle East.
This is no better than when the Republicans tacked on amendment banning online gambling to a port security bill back in 2006.
Let's not forget the guns in national parks amendment to a credit card bill. There is a long list of mismatched amendment included into bills for political purposes – to either sneak items through or to create political fodder for future campaigns. This is a enormous flaw in our legislative process, but without a non-partisan entity to allow/disallow the introduction of such amendment, I have no idea what the solution would be. The fact of the matter is that just isn't going to happen.
Jazz -
This is a re-post of a comment from a couple days ago on this subject. Hope it helps with the discussion.
The legal difference between intent and motive is as follows: Intent means a person meant to do it, i.e. it wasn't an accident or stupid reckless behavior. Motive is why a person did something. The law does not require proof of why a person did something. Often the “why” is locked in the defendant's head, and nobody knows what the “motive” was unless he/she talks. So the law relies on intent as the element of the crime. An “element of the crime” is what the prosecutor must prove to establish guilt. They do not have to prove motive. Btw, telling the jury that they don't have to prove motive is a stock part of many prosecutor's opening statements.
Here's a real example of a simple misdemeanor criminal statute.
“A person commits the crime of harassment if the person intentionally:
(a) harasses or annoys another person by:
(A) subjecting such other person to offensive physical contact.”
As you can see, motive is not mentioned in the statute. Example: If I shove you in a bar, and witnesses say they saw me reach out to shove you (intent), it doesn't matter whether the motive was because you were hitting on my date, whether you were in my way as I was trying to get to the Men's Room or whether I didn't like the message on your tee shirt. All that matters is that I shoved you and did so intentionally.
You also asked, “Are you saying motive is not a part of the difference between an intentional murder and a premeditated one?” Yes, actually that's true. Premeditation requires contemplation and [usually] planning. Intent can be formed almost instantaneously…you're hitting on my date or I see something I don't like printed on your tee shirt, so I reach out and shove you. Intentional, not premeditated. No motive need be proven.
Perhaps a good and understandable example would be a serial killer. Who knows what motivates a serial killer? I don't. But, serial killers do contemplate and plan their killings, often stalking their victims and planning the event prior to the kill, or at the very least they contemplate, obsess sometimes, about how to kill in certain situations. They act with both intent and premeditation, but the “motive” is unclear to most rational people, and therefore not necessary for conviction.
“Hate crimes” have serious repercussions on First Amendment rights and alter the traditional focus of criminal law. Speech that is allowed, perhaps even award winning, in an artistic context, becomes the basis for sentence enhancement in another. To say that speech/thought is or is not protected based on the context in which it used is a very slippery slope. And, opening the door to add “motive” as an element of criminal behavior invites all manner of unintended consequences.
These are all good points. And they are illustrative of the tactics politicians will resort to push through their political agendas.
This isn't the first time the Democratic-controlled House has pushed through a defense spending bill and attached all sorts of pet projects to it. They did it back in 2007. Having promised the American people that they would work to bring our troops home, instead, they pushed through a defense appropriations bill that not only refused to defund the war, but also loaded it with pork-barrel spending projects that had absolutely nothing to do with defense or the war in Iraq.
Shame on the Democrats for continuing these dishonest tactics.
And shame on all the Republicans hypocrites who are now complaining about Democrats injecting their “social policies” into a defense policy bill, but were absolutely silent when Republicans did the exact same thing in 2006–tacking an internet gambling ban onto a port security bill.
Yep — I noticed this, too. The House seems emboldened (with the relatively good news from CBO about the Baucus bill and prospects for “progress” on health care “reform” that it implies) and I noticed that the House lib-Dems didn't waste any time getting restless and mischievous once more. Time for “thought crimes” legislation, they believe.
“This is a enormous flaw in our legislative process”
It's time for the line-item veto, or at least letting the President veto amendments to original legislation.
MD72 -
State of mind refers to issues of intent, knowledge (as opposed to mental defect), premeditation, recklessness or negligence…not motive. As I pointed out above, in many criminal cases motive is never known. That's why it is traditionally not an element of a crime and is often not a factor at any stage, including sentencing.
As to the argument that society, or a segment of society, is victimized in addition to the “actual” victim, I'll repeat what I said two days ago in another context: “I'm not sure I agree that hate crimes are based on separate victims. If that were the case, it would not be a sentence enhancement but would be charged as a second, separate, criminal charge.” Separate victims equal separate criminal counts in an indictment traditionally…if you kill two people, you are charged with two crimes, not one with a sentence enhancement for the second.
Thank you for the clarification tidbits. As I am far from a legal scholar, these are valuable distinctions that I was not understanding. I was under the impression that “thoughts and feeling” were taken into consideration for sentencing… I stand corrected.
So can you speak to terrorism laws? Are they more palatable due to their structure as separate charges rather than sentence enhancement?
MD72, you asked -
“So can you speak to terrorism laws? Are they more palatable due to their structure as separate charges rather than sentence enhancement?”
I must confess that I am less familiar with terrorism laws than general criminal law, my principal area of expertise being in the capital murder area. What I will do is take a few minutes (or more) to research what the terrorism statutes actually say and get bakc to you.
It is dishonest of you to call these laws “unconstitutional” when they have been upheld by the Supreme Court.
William Rehnquist was no liberal.
Wisconsin v. Mitchell was a unanimous decision. Scalia and Thomas–also not liberals–were on the court that voted unanimously.
You can even read the Rehnquist decision and follow his reasoning.
It's one thing to disagree–and another to misrepresent.
I don't offer these comments either in support or opposition to this bill. Creating a special category for certain crimes is done to address things we consider potential or current social issues. Can anyone deny that “lynching” a black person is different from a shooting or stabbing? Does anyone see 9-11 as an “act of war” or “terrorism” rather than what defines it legally? It was a case of arson. So while I understand Jazz pointing out that the crime of murder is already illegal, so is the act of arson or murder by hanging. I think “hate crime” legislation is intended to make certain murders higher visibility and tougher punishment crimes to move society toward greater condemnation of those crimes, just as we rebranded the WTC arson as an act of war and terrorism. The jury is still out, so to speak, on the effectiveness of any of these redefinitions. For example, we'll never know if the NY Police, FBI and Interpol would have been more effective in tracking down and bringing to justice the 9-11 planners (conspirators).
These laws may not be unconstitutional. But they are obviously excessive, as well as obviously arising out of political motivation and activism. All crimes can be viewed with respect to not only the kind of intent but the depth or “heinousness” (relative or absolute, by society's standards) of the nature of them, already. What's being done here is blatant politics and yes, appealing to and favoring some people, explicitly.
MD72 -
Found two federal statutes defining terrorism. The terms they use are acts “intended”, one statute, or “calculated”, the other statute, to “influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” One of the statutes also refers to “intimidate or coerce a civilian population”, which is actually pretty close to what you were talking about earlier.
Legally, the standard in these statutes would be called “specific intent”, but they do put motive into the picture at least circumstantially. I knew there was a reason I didn't like the Patriot Act.
The one distinction between this and hate crime sentence enhancement legislation is that these are separate crimes.
As GS pointed out, hate crime legislation has been found constitutional, notwithstanding my lowly concerns about the First Amendment. So, I guess I'm tilting at windmills, but diminishing free speech, even ugly speech, is to me a windmill worth tilting at.
Your question caused me to learn something today. Thank you.
GD, you asked: “Can anyone deny that “lynching” a black person is different from a shooting or stabbing?”
As you know, you are too well up on things not to, many of the lynchings and other murders of civil rights worker, church bombings, etc were actually prosecuted as criminal civil rights violations, not under state murder statutes. So you are absolutely correct that there is a difference. Unfortunately, the difference was often shorter, less severe sentencing than would have come about from a state murder conviction.
I take issue with your description of 911 as “arson”. It was premeditated mass murder. A fireball was simply the means used to accomplish it…just like a toxic chemical release or bomb would have been.
I'd be interested to hear you views on dilution of the First Amendment vis-a-vis hate crime legislation. Strikes me as something of a Hobson's Choice to say it's socially desirable to have hate crime legislation, therefore one should be willing to sacrifice First Amendment speech rights. Are there any other rights we should be willing to “dilute” for socially desirable goals?
I think “hate crime” legislation is intended to make certain murders higher visibility and tougher punishment crimes to move society toward greater condemnation of those crimes.
This is the opposite of the usual rationale, that hate crimes demand extra punishment because we find them “worse” in some sense. Your version is more honest and makes more sense: the extra punishment is needed because we *don't* find the crimes worse. Or rather, some people don't consider murdering a gay guy as bad as murdering a straight guy. We're trying to send those people a message in the hope, one supposes, of making the average come out right.
I don't object to trying to shape people's attitudes on social issues like these, but the criminal justice system is an inappropriate tool. We should all be equal before the law.
Tidbits–
I'm sure your concerns about the First Amendment are not lowly. But there's a difference between talking about beating somebody up and actually beating somebody up.
In our criminal justice system, motive matters for the degree of the crime. As anyone who watches Law and Order knows, there are significant differences between Murder One, Manslaughter One and Criminally Negligent Homicide. It's not a question of equality before the law. It's a question of fitting punishment to crime. Not all crimes are the same.
When people become victims of violence just because of their race, religion, or membership in some other group, it's hard to see them as being privileged. I don't see the black man being lynched as privileged. I don't see the Hasidic Jew attacked by a mob as privileged. I don't see the guy who gets punched in the face when he walks out of a gay bar as privileged. Just the opposite.
In case linked above, Wisconsin v Mitchell, a group of black men beat up a randomly passing white kid just because he was white. Presumably, if no white person had passed by, there would have been no crime.
And I confess I see no Hobson's Choice in the Mitchell case. Mitchell's expressed motivation for his crime was the color of his victim's skin. He gave voice to this motivation in order to motivate a group of accomplices to his crime. And then they beat the kid up.
I'd be interested in any counter-examples.
GS -
Don't want to beat a dead horse (if PETA got it's way that might be a hate crime, lol), but intent and motive are two different things, though often confused in the media primarily because intent is not as interesting as motive.
Intent is whether one meant to do it. Motive is why one did it. Using your example of criminally negligent homicide, manslaughter and intentional murder is a perfect example. They are degrees of “intent”, or lack of intent. Motive (why) is not part of the equation.
1. Criminally negligent homicide (real life example): person leaves infant alone in a bathtub for twenty minutes. Infant drowns and dies. Not intentional, the person didn't mean for the infant to die, but criminally negligent, therefore criminally negligent homicide. Does it matter whether the infant was left unattended because a) person went to the store, b) person was having sex, c) person was in the garage changing a battery? Answer, no. The person's motive for leaving the child unattended is not needed to prove the crime.
2. Manslaughter (real life example): Person shoots another person in the leg, intending to maim him. Person bleeds to death. Intent to kill is not present, so manslaughter, not murder. Why did he shoot hm in the leg or want to maim him? Not necessary to prove for conviction.
3. Murder (real life example): Person tells friend “I'm going to kill X” (intent). Two days later X shot to death, bullet to the head, point blank range. Forensics tie the person to the murder, he is arrested, asserts his right to remain silent and never discloses motive. Result, conviction.
You asked for a counter example, here's one (real life). Man stands on a street corner with a gun in his pocket. The first person to walk by, a total stranger, he shoots in the head and kills. Motive? He wanted to watch someone die. Honest to God. How is that any better or worse than the Mitchell case? Do you want Mitchell off the street more than you want that guy off the street? If so, why?
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I too, am against hate crime bills. The reasons have already been stated above (by Tidbits, etc).
Unless, of course, they include a stipulation that any crime against someone named Jefferson Davis is punishable by A) forcing the perp to stand naked in the center of town with clown make-up on for three days, and B)Paying my wife $10,000,000. Then maybe, I'd be for the bill.
damn, tidbits. you gonna make me actually look at the wording of the bill? Maybe I can avoid that. I believe very strongly in largely unfettered frst amendment rights. My mama told me 'sticks and stones…' and in general, I think acting out legally or especially militarily based on “fighting words” is wrong. Guess I was thinking more in terms of why Congress would elevate murder of a black or gay person to a higher level than similar crimes that lack the bigotry-driven element. My assumption is that it is intended to address bigotry and as DJ says, send a message.
As for the arson comment, well, it was. We were not attacked by a sovereign nation, but by what is essentially an organized criminal conspiracy. Arson does often murder people, and we can certainly assume intent. I'm not at all trying to minimize that crime, just to point out that we consider some crimes to be of a higher order than others, though the nature of the crime is the same. There's an irony here; there seems to be a pushback from conservatives who consider “fighting words” against Israel to be an act of war, punishable by pre-emptive attack. Interesting…
Tidbits–
In your case, the head-shooter doesn't care who he shoots. His intended crime is bound to be committed.
In the Mitchell case, Mitchell only wanted to beat up a white guy. If no white guy comes along, there is no crime committed.
That's the difference. The difference between a crime and no crime is clear enough, I think.
And the difference is significant: No hate, no crime. Right?
And as far as the First Amendment goes, a person can feel the hate, think the hate, speak the hate. But a person cannot beat someone so badly they end up in a coma for four days. Violence is a crime. And the intent behind the crime matters.
I appreciate the clarity of your distinction between intent and motive. But I am not a lawyer. Obviously I am unable to deploy the technical language of the law properly. So maybe where I used the term “motive” I should have used the term “intent”.
For example, in your third definition, you lay out the murderous situation as follows:
So using parallel language, here's my revised situation:
As I say, I am not a lawyer. Thank you again for clarifying for me, an amateur, the difference between motive and intent. But the thing of it is, Tidbits, that Rehnquist, Scalia and Thomas were lawyers. And they didn't have any problem understanding Mitchell's intent when they decided the Wisconsin hate crime law was Constitutional.
I hope I've been more clear this time.
This has potential, but of course the POTUS himself is very much a political entity. Then of course, the “unamended” bills would have to go back to Congress or else you completely blur the line between the Executive and Legislative branches.
Of course, this is all mute to an extent as the Line Item Veto Act of 1986 was already declared unconstitutional for these exact reasons. So it would require a constitutional amendment or reversal of precedent, which would like require that it go to the Supreme Court (another political entity, which makes me wonder how a conservative court would rule with a opposition party sitting president).
tidbits, thank you very much for taking the time to research this. It gives me a much better understanding of the two .. and also gives me one more reason to dislike the Patriot Act.
I would echo your concerns about diminishing free speech laws, but would like to see some quantification (perhaps through a separate charge) of violent acts that are intended to disrupt a community through the creation of fear and intimidation. I don't have answers to this, merely sky-gazing daydreaming.
Regarding 9/11: I agree fully with tidbits. Suggesting that the crime was arson is wholly off-target. It's like saying that the chargeable crime for Columbine was firing a weapon within city boundaries, or in a public-owned building. It makes the deaths incidental.
Tidbits — You may be right that incorporating motive as an element of a crime could potentially change our entire approach to criminal law. I could see it going any of several different directions if applicability seeps into other areas: reduction in the number of successful prosecutions; radically increased CJ costs; new statutes.
If it goes that direction, though, we'll likely see a number of challenges on appeal of other (non-motive considered) convictions, as defense attorneys leverage the precedent. Case law will perhaps skew and twist for some years, but ultimately will swing back to the traditional model, if things go too far afield.
At least, that's my hope.
GS -
Thanks for the reply. You make a strong distinction between my example and the Mitchell case. Well thought through.
This would not be the first time I have disagreed with Renquist, Scalia or Thomas, though I certainly respect the precedent of the Court even when I disagree.
My broader problem is that I hate watching our rights eroded away for this “good cause” or that “good cause”. Privacy rights, warrantless searches eroded, habeas corpus suspended, internet and telephone invasion by government for the “good cause” of security. Free speech and free thought eroded for the “good cause” of teaching a societal lesson about hate. Note that I use one example that is conservatively based and another that has a liberal base. Both sides have their agenda, and those agendas often leave the rights of the people in the dust, and not as protected as I believe they should be by the courts.
I beieve goals can be accomplished without sacrificing the rights of individual liberty purportedly guaranteed by the Constitution. It is, admittedly more difficult that way, and I acknowledge that I am in a minority. Example: in the Mitchell case I would prefer a law that enhanced sentencing based on level of injury to the victim, rather than what the defendant thought or said.
MD72 -
Just a note on free speech. The Constitution says congress shall pass “no law” abridging freedom of speech. Over the decades, we have carved out many exceptions to that from the Patriot Act, to hate crime legislation, to pornography, to slander laws, to broadcast tv regulations, to George Carlin's famous schtick about the seven words ou can't say on radio.
To my “strict constructionist” friends, I would ask just what does “no law” mean? It seems to mean less and less the further down the road we travel.
Thanks very much for your interest in this. It's obviously one of my pet peeves and a windmill at which I will continue to tilt.
Thanks Polimom. You beat me to it. Columbine being viewed as discharging a firearm within city limits is exactly the example I was thinking of.
As to the rest, our national experience is that once we go down these roads, allowing our freedom to be eroded for a “good cause”, those freedoms are rarely returned to the people. Precedent is established then used for the next cause, and the next, and the next. I hope I'm wrong.
Tidbits — specific to slander laws, it's worth pointing out that they predate the Constitution via our common law root, and although the Constitution protects free speech, states maintained slander laws both before and after it was ratified (as I understand it).
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Polimon -
You are correct. And, that exact reasoning has been used to interpret the First Amendment as not having been meant to include slander laws, though the First Amendment has also been used on the other side to water down slander laws, particularly as relates to “public figures.”
However, as a matter of legal heirarchy, it has long been established that common law can be subsumed or altered by statute, treaty or constitution. For example the legislature can alter principles of common law by statute as has been done with “tort reform” legislation placing caps on recovery, contrary to common law, or subsuming common law relief through Workers Comp laws and removing those claims from the common law courts.
By principles of legal construction, the Constitution would trump common law, though in the case of slander the courts have given defference to the common law.
Tidbits–
I appreciate your answer.
I am also in favor of First Amendment rights. For that matter I am also in favor of the Fourth Amendment right against self-incrimination. I am in favor of individual liberties. I don't want to see them eroded in any way. If people who feel this way about individual liberty are in the minority, I believe I am in the same minority that you are.
And I don't think hate crimes legislation erodes individual liberty.
Again, I am not a lawyer. But let's go back to your comment drawing the distinction between the degrees of homicide, so I can clarify why I don't think hate crimes erode any liberties.
You defined murderous intent using this example:
It's not a violation of the murder's First Amendment right to free speech to use his previously made statement against him. He made this statement before taking any criminal action. If he had taken no subsequent criminal action, there would be no crime. He made this statement to a friend, not a police officer. Presumably the friend testifies to this in court, or at least informs the police of this statement so they can pursue the forensic investigation.
Equally, it is not a violation of Mitchell's First Amendment right to free speech to use his previous statement against him. Mitchell is not being prosecuted for his feelings, thoughts or speech. Mitchell is not being singled out for his dislike of the members of Group X. He is being prosecuted for committing an injury to an individual solely because the individual belonged to Group X.
The murderer in your example said he was going to kill a specific individual. Mitchell said he was going to beat up a white guy. In both cases, speech prior to the crime indicated intent.
As I keep saying, I am not a lawyer. But I don't see any slippery slope at all.
Tidbits, you said, “For example the legislature can alter principles of common law by statute as has been done with “tort reform” legislation placing caps on recovery, contrary to common law, or subsuming common law relief through Workers Comp laws and removing those claims from the common law courts.”
There's a distinction that I think is getting lost, generally, in discussions about laws / legislation vs. constitutional law / judicial interpretation. Laws can — and are — made at any number of levels: local, state, federal, etc. They are also subject to challenge as to their constitutionality, from the bottom up. At the top of the heap is the US Constitution, and how SCOTUS views those laws within that framework.
In the slander laws, then, the reason they're handled at the state level is because SCOTUS has not chosen to address them constitutionally. (Yes? No? I'm free-handing here.)
Of course, slander is not the topic here. However, legislation and its ability to withstand challenges does relate. If hate crime legislation is a violation of a fundamental right, then I would fully expect to see specific cases of various iterations making their way through the system. It's too soon to know what direction this might go.
Polimom–
In fact, the case of Wisconsin v Mitchell, which Tidbits and I have been discussing, was decided in 1993.
I'm not a lawyer, historian or expert on this subject. But I'd guess there were previous forms of hate crime legislation that failed to pass Constitutional muster because they failed to meet the kinds of concerns expressed by Tidbits.
A fairly conservative court including Rehnquist, Scalia, and Thomas voted unanimously that the Wisconsin hate crimes legislation did not violate any fundamental right. They voted on it sixteen years ago, which is kind of a long time ago. I'm not sure it's fair to say the matter has been settled, since I have no idea if there are continuing challenges progressing through the courts, but the precedent in favor of hate crimes legislation has been clearly established.
GS -
I get the distinct impression that neither one of us is liekly to back off our position much. Let's accept that and move forward. What I'd like to know is how far you are willing to go.
Would you support a law that made it a crime and allowed seizure of assets for any organization/person that advocated violent action against another group, even though the organization/person it/himself participated in no such action? How about if that organization/person advocated nothing but beneficial things, but gave money to a group that advocated violent action? How about if the organization/person gave money to the other group but only for the beneficial purposes of the group and not to support the groups violent actions?
The reason I ask is that the Patriot Act allows for all of the above. People have been arrested and assets seized over giving money to Hamas (I think it was Hamas) even though the money was specifically desinated to be used for Hamas's humanitarian endeavors.
Polimom -
In a way you again make my point for me. First, the Supremes have decided on the constitutionality of slander laws and found them to be constitutional, using the reasoning you referred to earlier. Sorry I don't remember the case names…I need to see the Wizard for a brain…they're are pretty famous cases.
And, as GS pointed out, hate crime legislation has also been up to the Supremes and they found it constitutional as well. My silly opinion is that we have a Supreme Court currently peopled by justices who put prosecution above principle when it comes to eroding the Bill of Rights for the sake of security or political correctness.
Where are the gutsy justices who care about civil liberties like Wm. O Douglas and Hugo Black when you need 'em? It just isn't any fun being a civil libertarian anymore.
Freedom is messy, but without it we have a clean, sanatized, homogeneous…and vapid…culture. My view.
It's worth noting that Wisconsin v. Mitchell by no means settles the constitutionality of federal (rather than state) hate crimes legislation, since federal criminal laws, to be constitutional, are (with a few outliers) tied to acts affecting interstate or international commerce. (For example, this is why knocking off a jewelry store might be a federal crime — those diamond rings didn't just materialize in your hometown; they came from somewhere.) In United States v. Morrison, the Supreme Court held that the federal Violence Against Women Act — which would have, among other things, made rape a federal crime, just as the recently-passed hate crimes bill would make assault and battery a federal crime — had far too remote a connection to interstate commerce to be constitutional.
Tidbits–
I appreciate the fact that we've a rational, polite discussion in spite of our disagreement.
I've been getting into these discussions for several years now and never understood the distinction between motive and intent. Then you came along and clarified it in about twenty words, no fuss, no muss, nothing left to discuss. So thank you for the clarity you've brought to this.
As I said above, I am in favor of civil liberties. I am well aware that in the aftermath of Pearl Harbor, Japanese-Americans were rounded up and put into concentration camps. People freak out after events like Pearl Harbor and 9/11 and the government that represents them–represents us–freaks out in response. I pretty much have a knee-jerk reaction against the Patriot Act. I think George Bush was a disaster. (On the other hand, it seems to me that Mr Bush went out of his way to say things that were protective of the rights of Arab-Americans and other American Muslims, so I feel duty-bound to give him that much credit.)
While I think threats should be taken seriously, I don't people should be arrested if all they're doing is talking, even if their speech is incendiary. Giving money might be a little different–presumably the argument could be made that by giving money to Hamas' humanitarian arm you free Hamas to spend more of its own money on violent activity. On the other hand, giving money to humanitarian organizations seems like a worthy idea to me, so I guess I'd have to know more about the specifics of the case to really decide. And if you'd be willing to grant me a third hand, probably I'd donate my own money to the Red Cross or Doctors Without Borders instead of Hamas.
As I say, though, speech alone isn't a crime and shouldn't be made into one. I think we agree on that.
GS – You said, “I appreciate the fact that we've a rational, polite discussion in spite of our disagreement.”
Me too! And we not be quite as far apart as when we started. Mutual respect and understanding has a wonderful unifying quality.
tidbits and polimom. I was really careful to state that I was not minimizing 9-11. Columbine, which happened right down the road from where I live, was murder, AND discharging a firearm in a public place, AND carrying a concealed weapon without license etc. 9-11 was murder and arson, and more. But neither was an “act of war” as that term is defined. 9-11 is defined by arson and murder; mass murder. Look up those definitions in the legal code. You'll see. It was defined as something more outside the penal code.
Maybe you missed my point. We elevated 9-11 above murder and arson because it was especially heinous and motivated by political and hateful intent. We have done the same with “hate crimes” legislation, with respect to it being an additional infraction (as 9-11 was certainly additional to murder and arson).