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).

Me too! And we not be quite as far apart as when we started. Mutual respect and understanding has a wonderful unifying quality.

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.

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.

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.

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.

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.

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.

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:

3. Murder (real life example): Person tells friend “I'm going to kill X” (intent).

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.

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.

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.

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 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.

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.

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.

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).

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:

Person tells friend “I'm going to kill X” (intent).

So using parallel language, here's my revised situation:

Person tells friend, “I'm going to beat up a white person and since only a white person will be a satisfactory target of my assault, if there are no whites I'm not going to commit any crime at all” (intent).

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.

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…