Hate Crimes: Criminal Law & Identity Politics

By James B. Jacobs; Kimberly Potter | Go to book overview
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tional, so is Wisconsin's statute. 86 In effect, the Court stated that hate crime laws serve the same purpose as Title VII--each provides a remedy for discriminatory conduct, not a prohibition of speech. But the harms that hate crime laws are designed to remedy are not clearly identifiable. The harm to the victim is already punished by generic criminal law. It would appear that the only additional purpose in punishing more severely those who commit a bias crime is to provide extra punishment based on the offender's politically incorrect opinions and viewpoints.


There is a long history of attempts to suppress bigoted expression in the United States. In the first half of the twentieth century, some states prohibited Nazi and Communist "propaganda." Other states outlawed group libel based on race, nationality, and ethnicity. Unlike most other countries in the world, in the United States these laws have not withstood judicial scrutiny or political judgment. Tolerance for vile expression is the price we pay for the right to free speech. As Supreme Court Justice Oliver Wendell Holmes expressed it a half century ago: "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought--not free thought for those who agree with us but freedom for the thought we hate."87

In recent years, bigotry and prejudice have become increasingly deplored in American society. Indeed, anti-prejudice itself has become a reigning ideology, one that the government heartily and rightly endorses. Despite the near universal condemnation of bigots, the First Amendment protects their offensive speech. If a bigot acts on those views, the criminal law is there to punish him. But, in our view, the First Amendment is implicated when extra punishment is meted out for bigoted beliefs and motives.

The campus hate speech codes have emerged as the contemporary successor to the old group libel laws. These codes attempt, in the name of multiculturalism, to regulate student expression, including personal discussions, jokes, and comments in class. Not surprisingly, they have failed to withstand legal challenge.

Passing hate crime laws is now the fallback position for those who wish to denounce prejudiced and bigoted thought and expression via criminal law. By linking hate speech prohibitions to generic criminal law, many well-meaning advocacy groups and politicians seek to shake a fist at the kind of ideas, opinions, and degenerate personalities that "right- thinking" people abhor. But we must consider whether punishing crimes


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