Does Hate Crime Legislation Threaten Free Speech?

Some socially conservative groups, most notably Liberty Counsel, have argued that hate crime legislation such as the Matthew Shepard Act threatens freedom of speech and freedom of religion. Their arguments tend to be based on two concerns.

The European Precedent

In some parts of Europe, where free speech protections are taken less seriously than anti-bigotry mandates, there has been hate crime legislation specifically written to criminalize hate speech on the basis of race, gender, religion, immigration status, and sexual orientation. For example:

• On several occasions in recent years, the French government has fined actress Brigitte Bardot for hate speech directed against Muslims, immigrants, and those of mixed racial ancestry. (Worth noting: while she has also made controversial anti-gay comments, she has not been fined for them.)
• In 2006, Holocaust denier David Irving was briefly imprisoned in Austria for, well, denying the Holocaust. He was released on appeal.
• Several recent British acts of parliament have criminalized hate speech of various kinds.

Hate crime legislation in the United States has not been, and under current Supreme Court precedents could not be, used to prosecute hate speech. While any speech that is specifically directed towards inciting violence or disrupting events can run afoul of public order laws, hate speech in and of itself--whether the hatred is grounded in racism or homophobia--is protected by the First Amendment, and as legal as any other kind of speech.

The same cannot be said of much of Europe, where in many instances laws prohibiting blasphemy remain on the books. As recently as 1977, one British gay activist was prosecuted under blasphemy laws for a poem he wrote in which he described Jesus as gay. England's blasphemy law was finally repealed in 2008.

None of this is relevant to the United States, where laws criminalizing the content of speech are virtually unenforceable. In the infamous National Socialist Party v. Skokie (1977) case, the U.S. Supreme Court even held that a Nazi organization had the right to organize a rally in a small Illinois city with a disproportionate number of Holocaust survivors among its population. As long as First Amendment jurisprudence remains strong, hate crime laws won't be used to prosecute speech. And if First Amendment jurisprudence becomes weak, hate crime laws will be the least of our worries.

The Conspiracy Argument

Another argument, advanced by Liberty Counsel in its pamphlet "The Impact of Hate Crimes Laws Upon Religious Organizations and Clergy" (Adobe PDF), holds that clergy who provoke violence against lesbians and gay men could be prosecuted under hate crime laws:

It is conceivable that a minister who preaches a strong sermon against the homosexual lifestyle and urges his or her congregation to do whatever necessary{sic} to oppose the lifestyle could be prosecuted for conspiracy if a member of the congregation who hears the sermon misinterprets it and commits an offense covered by a Hate Crimes law. This could occur even though the minister never intended or even dreamed that violence would be used as a result of his or her sermon on the issue but had merely chose{sic} his or her words carelessly or in a way that could have been misinterpreted.

This fear is completely groundless. The Matthew Shepard Act (in opposition to which the pamphlet was written) does not redefine the crime of conspiracy; it does not make anything that was previously legal illegal. What it does do is add a layer of federal oversight to investigation of existing bias-motivated crimes, and provide additional funding to state-level investigations of same.

Opponents of hate crime laws often cite the so-called "Philadephia 11" incident, in which a group of eleven anti-gay activists were arrested for disrupting the 2004 OutFest National Coming Out Day Block Party in Philadelphia, blocking a public street, and refusing to leave when ordered to do so by police. But this behavior would have been just as illegal if eleven LGBT rights activists had behaved in a similarly disruptive fashion at an anti-gay event. Illegal behavior does not suddenly become legal just because the criminals happen to be social conservatives, or because the targets happen to be lesbians or gay men.

Conclusion

There is absolutely no rational basis for the belief that U.S. hate crime laws threaten free speech. Any laws could potentially threaten free speech, however, if the First Amendment is not adequately protected.

In other words, the same sorts of ACLU-plaintiff Supreme Court rulings that social conservatives often condemn--the rulings that narrow the definition of obscenity or expand the audience of indecency, the rulings that would have ultimately allowed Nazis to harass a quiet little town in Illinois--are exactly the rulings that would protect homophobes. Freedom, to quote Dick Cheney, means freedom for everybody.