By Carter Bundy
This Memorial Day, we should celebrate more than those who died in defense of our country. We should also focus on protecting the ideals that they died for, including freedoms of thought and speech.
Last week I expressed disagreement with the European model of subsidizing and promoting religion. Another more recent European example of government getting involved in core personal beliefs should also be shunned by America.
The United Kingdom just banned right-wing psycho Michael Savage from entering the U.K. That suits me politically, but makes me ill as a supporter of free speech.
It’s not like Savage advocates violent overthrow of any government — he just has very conservative, mildly racist, overtly homophobic beliefs and expresses them rather grotesquely. But banning travel because of it? Speech bans are a sign of weakness and insecurity, and virtually always strengthen the person or group being stifled.
Could it happen here?
America has to be careful that in our well-intentioned attempts to protect minorities, including gays, our government doesn’t punish thought or speech. The current hate crimes law comes very close.
As active a supporter of gay rights as I am, I am loathe to give any government, even the Obama administration, the right to add punishment based on personal thought and belief, no matter how awful those thoughts.
Throw the book at people who are violent, but don’t make the government the arbiter of what thoughts are permissible. We do that when, for identical crimes, we punish identical criminals differently based on their specific viewpoints on the most personal of beliefs.
All speech is not equal
One justification for additional punishment based on personal racial or religious beliefs is that our justice system does, rightly, look at intent and motive in other ways. For example, if you commit a crime in the course of pursuing monetary gain, your punishment may be enhanced.
We review intent to harm. If you really thought there was a fire in the movie theater, you’d be OK to yell it. If you did it to create a stampede, you’re a criminal.
So what’s the big deal about the government treating people differently based on whether the criminal is a racist or not?
Much of First Amendment law is a balancing act. Things like pecuniary gain and the right to create a stampede aren’t very protected. The rights to think and say things — both good and bad — about a particular race, religion, gender or sexual orientation are among our most protected forms of speech and thought.
When the government says that a racist or homophobe is entitled to less protection, or additional punishment, under the law, that assaults the heart of Americans’ right to think, feel and say things pertaining to their core beliefs.
Speech relating to race, religion and other beliefs is “more equal” than other speech. That’s why it’s more protected than, say, greed.
What about housing?
The government already steps in to punish racism in the workplace, housing, dining, lodging, finance and other common economic transactions. So why is this different?
It has to do with First Amendment balancing. In the absence of anti-discrimination laws, there was no way to stop employers, hotel owners, banks, restaurants or landlords from denying fundamental access to the American dream. It was the only solution to the problem of denial of equal economic rights for all.
With hate crime enhancements, though, there’s already a strong array of punishment at our disposal, because the underlying acts themselves are criminal. That distinction makes all the difference.
Hate crimes’ strongest argument
The strongest argument for hate crime enhancements is that hate crimes differ from regular murder or assault because they constitute “intimidation” of a group. But the very existence of racist or homophobic people is intimidating.
Is there an additional intimidation attached to, say, the Matthew Shepard killing? Possibly. But it’s normally so attenuated for any one individual, that it’s just a very generalized “intimidation.”
Not that it’s not significant — it is — but outlawing generalized intimidation would very quickly lead us to the same types of policies exhibited by the U.K. in barring angry speech.
The right to be a racist or homophobe, as horrible as each is, outweighs the general awareness that there are violent people on the planet who don’t like particular groups.
Specific threats to individuals, whether based on racism, homophobia or otherwise, are still punishable. We should throw the book at someone who, for example, burns a cross in an African American’s yard.
As difficult as it is for a human and civil rights advocate to go against the superficially “right” thing to do, I can’t support hate crime enhancements because the cost to First Amendment protections belonging to all of us is so high. Especially when there are other unquestionably effective ways to punish violent racists and violent homophobes.
Bundy is the political and legislative director for AFSCME in New Mexico. The opinions in his column are personal and do not necessarily reflect any official AFSCME position. You can learn more about him by clicking here. Contact him at carterbundy@yahoo.com.