But watch what the Obama administration does, not just what it says. I’m not talking about its attacks on Fox News. I’m talking about a little-publicized October 2 resolution in which Clinton’s own State Department joined Islamic nations in adopting language all-too-friendly to censoring speech that some religions and races find offensive.

The ambiguously worded United Nations Human Rights Council resolution could plausibly be read as encouraging or even obliging the U.S. to make it a crime to engage in hate speech, or, perhaps, in mere "negative racial and religious stereotyping." This despite decades of First Amendment case law protecting such speech.

To be sure, the provisions to which I refer were a compromise, stopping short of the flat ban on defamation of religion sought by Islamic nations, and they could also be construed more narrowly and innocuously. It all depends on who does the construing.

Is it "negative stereotyping" to say that the world’s most dangerous terrorists are Islamists, for example? Many would say yes.

I sketch below how the resolution could be construed to require prosecuting some offensive speech and how it could be used in the long run to change the meaning of our Constitution and laws, based on doctrines developed by legal academics including Obama appointee Harold Koh, the State Department’s top lawyer.

Also troublesome on the free-speech front are various remarks by Mark Lloyd, the Federal Communications Commission’s associate general counsel and chief diversity officer. Lloyd asserted in a 2006 book, "The purpose of free speech is warped to protect global corporations and block rules that would promote democratic governance." He co-authored a 2007 report calling for regulatory changes to close "the gap between conservative and progressive talk radio." In 2008, he praised the "incredible … democratic revolution" of Hugo Chavez and implied approval of the thuggish Venezuelan strongman’s pattern of shutting down news media opposed to him.

That’s how I read Lloyd’s videotaped statement, first aired by Glenn Beck of Fox News, in which he said: "The property owners and the folks who then were controlling the media rebelled [against Chavez], worked, frankly, with folks here in the U.S. government, worked to oust him. But he came back with another revolution, and then Chavez began to take very seriously the media in his country."

Then there was the June 5 high school commencement speech in which White House Communications Director Anita Dunn called Mao Zedong — one of history’s greatest mass murderers and an implacable enemy of free speech — one of "my favorite political philosophers." Dunn has, coincidentally, been the point person in President Obama’s attacks on Fox News.

The administration is seeded with left-liberal thinkers who have smiled on efforts to punish speech that is offensive to favored racial and religious groups.

This is not to suggest that Dunn approves of mass murder or that Obama wants to censor critics. But the ideologies of appointees such as Lloyd and Dunn can have consequences. And in his eagerness to please international opinion, Obama has now taken a small but significant step toward making bad law.

Law — especially international law — evolves below the radar, in small moves largely ignored by the mainstream media. Although international resolutions have traditionally not been seen as binding law, the Obama administration is seeded with left-liberal thinkers who have long sought to spin what some call "transnational" law out of such stuff, and who have smiled on efforts to punish speech that is offensive to favored racial, religious, and other groups.

Such attitudes may help explain the administration’s decision to join the U.N. Human Rights Council in the first place. Obama reversed a Bush administration policy of shunning this deeply politicized body, which counts as members several flagrant human-rights abusers and which is preoccupied with attacking Israel.

The council’s October 2 resolution is ostensibly an endorsement of "freedom of opinion and expression," which seems ironic, given the track records of such members as China, Cuba, Egypt, and Saudi Arabia.

But the real problem is a provision, which the U.S. championed jointly with Egypt, exuding hostility to free expression.

That provision "expresses its concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative racial and religious stereotyping continue to rise around the world, and condemns, in this context, any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence, and urges States to take effective measures, consistent with their obligations under international human-rights law, to address and combat such incidents" (emphasis added).

What is this clot of verbiage supposed to mean?

It could be read narrowly as a commitment merely to denounce and eschew hate speech. But it could more logically be read broadly as requiring the United States and other nations to punish "hostile" speech about — and perhaps also "negative stereotyping" of — any race or religion. It’s a safe bet, however, that the Islamic nations that are so concerned about criticisms of their religion will not be prosecuting anyone for the rampant "negative racial and ethnic stereotyping" and hate speech in their own countries directed at Jews and sometimes Christians.

Eugene Volokh of the University of California (Los Angeles) Law School pointed out on his Volokh Conspiracy blog that the reference to "obligations under international human-rights law" could be seen as binding the United States to a provision of the International Covenant on Civil and Political Rights requiring that hate speech "shall be prohibited by law." The U.S. has previously rejected that provision.

Added Volokh: "Advocacy of mere hostility — for instance… to radical strains of Islam [or any other religion] — is clearly constitutionally protected here in the U.S.; but the resolution seems to call for its prohibition. [And] if we are constitutionally barred from adhering to it by our domestic Constitution, then [the administration’s vote was] implicitly criticizing that Constitution, and committing ourselves to do what we can to change it." Such a stance could be seen as obliging the executive branch to urge the Supreme Court to overrule decades of First Amendment decisions.

Obama should not take even a small step down the road toward bartering away free speech for the sake of international consensus.

Far-fetched? Not according to the hopes and expectations of many international law scholars. "An international norm against hate speech would supply a basis for prohibiting it, the First Amendment notwithstanding…. In the long run, it may point to the Constitution’s more complete subordination," Peter Spiro, a professor at Temple University Law School, asserted in a 2003 Stanford Law Review article.

Similarly, if more ambiguously, Koh wrote in another 2003 Stanford Law Review article, "Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet." The Supreme Court, suggested Koh — then a professor at Yale Law School — "can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation" that he espouses.

Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.

In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. "Criticism of religion is the very measure of the guarantee of free speech," as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.

Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on "racial and religious stereotyping" and the rest.

The pressure to censor harsh criticisms of Islam, as well as other religions and groups, began to intensify after bloody riots by Muslims around the world in 2006 over the publication in Denmark of cartoons ridiculing Muhammad.

People have reportedly been prosecuted in Austria, Finland, and India for asserting that Muhammad’s marriage to a 9-year-old girl made him a "pedophile." Brigitte Bardot was convicted in 2008 of provoking racial hatred for saying in a letter to France’s interior minister that Muslims were ruining France. A 15-year-old boy in Britain was charged under the Racial and Religious Hatred Act last year for holding up a sign outside a Scientology building calling the practice "a dangerous cult." And so on.

We have had no such overt federal government censorship in this country so far. But we have seen plenty of private censorship and self-censorship, especially at our universities, most of which have thinly disguised speech codes.

One example is the spineless decision in August by Yale President Richard Levin and the Yale University Press to remove the Danish cartoons (and all other pictures) of Muhammad from a book about the drawings.

The reaction of the academic world to such episodes has been apathy. The same is true of the response by the academic world, the news media, and civil-liberties groups to the October 2 resolution.

Take The New York Times and the American Civil Liberties Union. Both were once dependable guardians of uninhibited, robust, and wide-open debate, regardless of whose ox was gored. But as best I can tell from their websites, neither has said a word about the Obama administration’s collaboration with would-be censors sitting on the U.N. Human Rights Council.

This article appeared in the Saturday, October 31, 2009 edition of National Journal.

The post Troubling Signals On Free Speech appeared first on Stuart Taylor, Jr..

No. 1: Christopher Newsom and his girlfriend, Channon Christian, both students at the University of Tennessee in Knoxville, were carjacked while on a dinner date in January, repeatedly raped (both of them), tortured, and killed. His burned body was found near a railroad track. Hers was stuffed into a trash can. Five suspects have been charged. The crimes were interracial.

No. 2: Three white Duke lacrosse players were accused in March 2006 of beating, kicking, choking, and gang-raping an African-American stripper, while pelting her with racial epithets, during a team party.

No. 3: Sam Hays bumped against Mike Martin in a crowded bar, spilling beer on Martin’s "gay pride" sweatshirt. Martin yelled, "You stupid bastard, I should kick your ass." Hays muttered, "You damned queer" and threw a punch, bloodying Martin’s lip.

Now the quiz.

Which of these would qualify as a federal case under a House-passed bill — widely acclaimed by editorial writers, liberal interest groups, law enforcement officials, and many others — expanding federal jurisdiction to prosecute "hate crimes"?

Bonus question: Why have the interracial rape-torture-murders in Knoxville been completely ignored by the same national media that clamor for more laws to stop hate crimes — the same media that erupted in a guilt-presuming feeding frenzy for months over the far less serious Duke lacrosse charges, which were full of glaring holes from the start and turned out to be fraudulent?

The answers.

The interracial Knoxville rape-murders would probably not qualify as hate crimes. The reason is that although the murderers were obviously full of hate, it cannot be proven that they hated their victims because of race. (Or so say police.)

Both the Duke lacrosse case and the (fictional) barroom scuffle, on the other hand, would probably be federally prosecutable under the bill that the House passed on May 3 by 237-180. This is because the angry words attributed to the accused could prove racist and homophobic motivations, respectively.

Do such distinctions make any sense? Not much, in my view.

The proposed Local Law Enforcement Hate Crimes Prevention Act would for the first time make it a federal crime to "willfully cause bodily injury" because of the victim’s "actual or perceived" sexual orientation, gender identity, gender, or disability. The bill would also expand federal jurisdiction over crimes motivated by race, color, national origin, or religion.

Sounds nice. But the pending bill — like most efforts to impose special penalties for bias-motivated crimes — strikes me as feel-good legislation likely to do more harm than good. The bill reaches only conduct that is already criminal under state law and thus serves no very important purpose; such proliferation of unnecessary new federal criminal laws diverts scarce resources from core federal functions such as fighting jihadist terrorism; and hate crime laws may even aggravate the biases that they are designed to counter by spreading the poison of identity politics. In addition, nothing in the Constitution empowers the federal government to prosecute many of the crimes that the bill is designed to cover.

As for the bonus question: The reason that the national media have ignored the Knoxville case is that the defendants are black and the victims were white. The media would also be uninterested if both the victims and the defendants were black. But had the victims been black and the accused white, the media would have erupted into the same politically correct sensationalism that characterized the Duke case. And many would have cited the case as proof that we need more hate crime laws.

The broader pattern is that the media, and many of the interest groups and academics who drive media coverage, habitually hype white-on-black crimes — and also gay-bashing violence — in keeping with their politically correct myth that straight white males are always victimizing racial minorities, women, and gays.

They also do their best to divert attention from horrible crimes involving African-American and gay defendants, and from the fact that "African-Americans — and particularly young black men — commit a dramatically disproportionate share of street crime in the United States," as Harvard law professor Randall Kennedy wrote in a 1999 New Republic article.

So it was that most of the media, the NAACP, and leftist Duke professors continued to smear the supposedly "privileged" Duke lacrosse players even in the face of ever-mounting evidence that the charges were false and the players innocent, as North Carolina Attorney General Roy Cooper declared last month.

And so it was that national media and other out-of-state outlets uttered not a peep this February about a new interracial-rape allegation at Duke with striking similarities to the lacrosse case. Again the accused was a Duke student. Again the locus was a drinking party in an off-campus house. Why the media silence? Because the accuser was white, the accused was black, and the house was rented by an African-American fraternity.

Other examples.

• The horrible murder in 1998 of James Byrd, an African-American, by three white supremacists who dragged him behind a truck for three miles near Jasper, Texas, became a national sensation and a rallying cry for more hate crimes legislation, even after two of the defendants got death sentences for plain old murder.

But the national media ignored the hauntingly similar murder in 2002, also near Jasper, of white hitchhiker Ken Tillery by three black men. They beat him, drove a car over him, and dragged him by the undercarriage for more than 20 feet. Ho-hum, said the media. Nor has this been treated as a hate crime. The supposed reason is that it involved a dispute over money. But had the races been reversed, I suspect, it would be high on the hate crime lobby’s list of examples.

• The 1998 murder of Matthew Shepard, a gay student at the University of Wyoming who was savagely beaten, lashed to a fence, and left to die near Laramie by two homophobic men, also became a media sensation and a rallying cry for extending hate crime laws to include those motivated by bias against gays.

But the media were far less interested when two gay men abducted and drugged 13-year-old Jesse Dirkhising in 1999, bound him with duct tape, gagged him with his own underwear, sodomized him with foreign objects, repeatedly raped him, gave him an enema of urine, and left him to die of suffocation. The Boston Globe and the Los Angeles Times failed to cover the case at the time, and The New York Times and many other media outlets have never mentioned it, a situation that gay journalist Andrew Sullivan (among others) has denounced as a double standard.

As John Leo recently wrote in The New York Sun, "The Shepard case was legitimately a huge story…. But there is something odd about the standard press defense [that] the Shepard story was news in a way that the Dirkhising story wasn’t because it ‘prompted debate on hate crimes and the degree to which there is still intolerance of gay people in this country,’ according to a Washington Post editor. This comes pretty close to advocacy…. Before long, more news consumers will conclude that even crime news is in effect being politicized. Is this any way to protect an industry in trouble?"

One reason for the double standards at work in these cases may be that many journalists, interest groups, and academics assume (incorrectly, in my view) that it would fan the flames of white racism and homophobia to paint a true picture of race and crime in America.

The deeper reason is that a true picture would undermine the same politically correct mythology that fuels the push for "hate crime" laws. This mythology also increases the large risk that such laws will be enforced very selectively, with evenhanded justice being eclipsed by politics, fanfare, and interest-group lobbying.

This risk may be the most important reason to oppose the House-passed bill.

The bill might be worthy of support if anyone could point to a single bias-motivated crime that it would have prevented. But nobody has. And such proposals have a lot more to do with political posturing than with ensuring that such crimes are adequately punished.

The Washington Post editorializes that we need this bill because hate crimes "terrorize whole communities." Bosh. It would be one thing if the KKK were on a violent rampage unchecked by local and state authorities. But that is not the case. The reality is that only a minuscule percentage of violent crimes are motivated by the targeted biases. And people murdered over money are just as dead as those murdered out of bias.

That’s why one leader said in 1993: "There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery — then look around and see somebody white and feel relieved." The leader was Jesse Jackson. Passing another hate crime law would make him no safer.

The post Opening Argument – ‘Hate Crimes’ and Double Standards appeared first on Stuart Taylor, Jr..

No. 1: Christopher Newsom and his girlfriend, Channon Christian, both students at the University of Tennessee in Knoxville, were carjacked while on a dinner date in January, repeatedly raped (both of them), tortured, and killed. His burned body was found near a railroad track. Hers was stuffed into a trash can. Five suspects have been charged. The crimes were interracial.

No. 2: Three white Duke lacrosse players were accused in March 2006 of beating, kicking, choking, and gang-raping an African-American stripper, while pelting her with racial epithets, during a team party.

No. 3: Sam Hays bumped against Mike Martin in a crowded bar, spilling beer on Martin’s "gay pride" sweatshirt. Martin yelled, "You stupid bastard, I should kick your ass." Hays muttered, "You damned queer" and threw a punch, bloodying Martin’s lip.

Now the quiz.

Which of these would qualify as a federal case under a House-passed bill—widely acclaimed by editorial writers, liberal interest groups, law enforcement officials, and many others—expanding federal jurisdiction to prosecute "hate crimes"?

Bonus question: Why have the interracial rape-torture-murders in Knoxville been completely ignored by the same national media that clamor for more laws to stop hate crimes—the same media that erupted in a guilt-presuming feeding frenzy for months over the far less serious Duke lacrosse charges, which were full of glaring holes from the start and turned out to be fraudulent?

The answers.

The interracial Knoxville rape-murders would probably not qualify as hate crimes. The reason is that although the murderers were obviously full of hate, it cannot be proven that they hated their victims because of race. (Or so say police.)

Both the Duke lacrosse case and the (fictional) barroom scuffle, on the other hand, would probably be federally prosecutable under the bill that the House passed on May 3 by 237-180. This is because the angry words attributed to the accused could prove racist and homophobic motivations, respectively.

Do such distinctions make any sense? Not much, in my view.

The proposed Local Law Enforcement Hate Crimes Prevention Act would for the first time make it a federal crime to "willfully cause bodily injury" because of the victim’s "actual or perceived" sexual orientation, gender identity, gender, or disability. The bill would also expand federal jurisdiction over crimes motivated by race, color, national origin, or religion.

Sounds nice. But the pending bill—like most efforts to impose special penalties for bias-motivated crimes—strikes me as feel-good legislation likely to do more harm than good. The bill reaches only conduct that is already criminal under state law and thus serves no very important purpose; such proliferation of unnecessary new federal criminal laws diverts scarce resources from core federal functions such as fighting jihadist terrorism; and hate crime laws may even aggravate the biases that they are designed to counter by spreading the poison of identity politics. In addition, nothing in the Constitution empowers the federal government to prosecute many of the crimes that the bill is designed to cover.

As for the bonus question: The reason that the national media have ignored the Knoxville case is that the defendants are black and the victims were white. The media would also be uninterested if both the victims and the defendants were black. But had the victims been black and the accused white, the media would have erupted into the same politically correct sensationalism that characterized the Duke case. And many would have cited the case as proof that we need more hate crime laws.

The broader pattern is that the media, and many of the interest groups and academics who drive media coverage, habitually hype white-on-black crimes—and also gay-bashing violence—in keeping with their politically correct myth that straight white males are always victimizing racial minorities, women, and gays.

They also do their best to divert attention from horrible crimes involving African-American and gay defendants, and from the fact that "African-Americans—and particularly young black men—commit a dramatically disproportionate share of street crime in the United States," as Harvard law professor Randall Kennedy wrote in a 1999 New Republic article.

So it was that most of the media, the NAACP, and leftist Duke professors continued to smear the supposedly "privileged" Duke lacrosse players even in the face of ever-mounting evidence that the charges were false and the players innocent, as North Carolina Attorney General Roy Cooper declared last month.

And so it was that national media and other out-of-state outlets uttered not a peep this February about a new interracial-rape allegation at Duke with striking similarities to the lacrosse case. Again the accused was a Duke student. Again the locus was a drinking party in an off-campus house. Why the media silence? Because the accuser was white, the accused was black, and the house was rented by an African-American fraternity.

Other examples.

• The horrible murder in 1998 of James Byrd, an African-American, by three white supremacists who dragged him behind a truck for three miles near Jasper, Texas, became a national sensation and a rallying cry for more hate crimes legislation, even after two of the defendants got death sentences for plain old murder.

But the national media ignored the hauntingly similar murder in 2002, also near Jasper, of white hitchhiker Ken Tillery by three black men. They beat him, drove a car over him, and dragged him by the undercarriage for more than 20 feet. Ho-hum, said the media. Nor has this been treated as a hate crime. The supposed reason is that it involved a dispute over money. But had the races been reversed, I suspect, it would be high on the hate crime lobby’s list of examples.

• The 1998 murder of Matthew Shepard, a gay student at the University of Wyoming who was savagely beaten, lashed to a fence, and left to die near Laramie by two homophobic men, also became a media sensation and a rallying cry for extending hate crime laws to include those motivated by bias against gays.

But the media were far less interested when two gay men abducted and drugged 13-year-old Jesse Dirkhising in 1999, bound him with duct tape, gagged him with his own underwear, sodomized him with foreign objects, repeatedly raped him, gave him an enema of urine, and left him to die of suffocation. The Boston Globe and the Los Angeles Times failed to cover the case at the time, and The New York Times and many other media outlets have never mentioned it, a situation that gay journalist Andrew Sullivan (among others) has denounced as a double standard.

As John Leo recently wrote in The New York Sun, "The Shepard case was legitimately a huge story…. But there is something odd about the standard press defense [that] the Shepard story was news in a way that the Dirkhising story wasn’t because it ‘prompted debate on hate crimes and the degree to which there is still intolerance of gay people in this country,’ according to a Washington Post editor. This comes pretty close to advocacy…. Before long, more news consumers will conclude that even crime news is in effect being politicized. Is this any way to protect an industry in trouble?"

One reason for the double standards at work in these cases may be that many journalists, interest groups, and academics assume (incorrectly, in my view) that it would fan the flames of white racism and homophobia to paint a true picture of race and crime in America.

The deeper reason is that a true picture would undermine the same politically correct mythology that fuels the push for "hate crime" laws. This mythology also increases the large risk that such laws will be enforced very selectively, with evenhanded justice being eclipsed by politics, fanfare, and interest-group lobbying.

This risk may be the most important reason to oppose the House-passed bill.

The bill might be worthy of support if anyone could point to a single bias-motivated crime that it would have prevented. But nobody has. And such proposals have a lot more to do with political posturing than with ensuring that such crimes are adequately punished.

The Washington Post editorializes that we need this bill because hate crimes "terrorize whole communities." Bosh. It would be one thing if the KKK were on a violent rampage unchecked by local and state authorities. But that is not the case. The reality is that only a minuscule percentage of violent crimes are motivated by the targeted biases. And people murdered over money are just as dead as those murdered out of bias.

That’s why one leader said in 1993: "There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery—then look around and see somebody white and feel relieved." The leader was Jesse Jackson. Passing another hate crime law would make him no safer.

The post “Hate Crimes” and Double Standards appeared first on Stuart Taylor, Jr..

Not coincidentally, the Clinton-Gore Administration and congressional Democrats are putting on a highly publicized push for the House to pass the hate crimes bill that the Senate adopted in June. It would expand the current federal statute-which provides harsher penalties for various crimes if motivated by race, religion, or national origin-to cover a longer list of crimes, including those motivated by sexual orientation, gender, or disability. This has House Republicans (who are trying to bury the proposal) in a box. Who wants to look soft on hate crimes?

Politics aside, the Clinton proposal has one thing going for it: the unassailable principle that murders and other violent crimes motivated by homophobia or gender bias should be treated no less seriously than those motivated by racism, xenophobia, or religious bias. Among the flaws in the proposal-and in the current statute-is that they treat even the most brutal murders as lesser crimes if motivated not by bias, but by bloodthirstiness, greed, depravity, lust, or other base impulses.

So here’s a suggestion, both for Republicans and for any Democrats who pause to reflect that hate crimes laws almost never prevent crime, almost never help victims, and almost always have bad side effects: Why not amend the pending proposal by expanding it? Why not add to the list of hate crimes those "motivated in whole or in part by depraved indifference to the victim’s life or health or to the pain of the victim’s family"? It could be called the Fairness and Family Protection Amendment (FFPA).

Perhaps for good measure we should also include crimes motivated by the victim’s membership in any socioeconomic class, reluctance to be deprived of the fruits of his or her labor, willingness to be a truthful witness, or attractiveness to pedophiles. But we can worry about the detailed drafting later.

The beauty of the FFPA is that its effect would be to enlarge the definition of hate crimes enough to give virtually all crime victims the same status. It would, for example, treat a white career criminal who robs and murders a white bank teller no less severely than a black man who does the same while hurling racial epithets at his victim.

This last hypothetical is not unrepresentative. For all the publicity about hate crimes against African-Americans (the victims of some 40 percent of hate crimes), FBI statistics suggest that they commit two to three times as many hate crimes per capita as whites. And although the hate crimes lobby stresses the need to protect blacks, gays, and other minority groups, the statutes have to be drafted in ostensibly neutral terms to depend not upon the victim’s group status-that would quite clearly be unconstitutional-but upon the defendant’s motivation.

Of course, the FFPA might not appeal to advocates of special laws for their favorite victim groups, because its effect would approximate a simple repeal of the federal hate crimes statute. But Clinton, Gore, and their allies might have a hard time fighting a proposal to be just as tough on the ugly crimes covered by the FFPA as on bias-motivated crimes.

(One difference between repealing the statute and adding the FFPA to it is that the latter course would raise the maximum penalties for virtually all violent crimes, excepting those already punishable by death. But careful drafting could give judges enough discretion to avoid excessive penalties.)

Would the FFPA be a deceptive strategem? Not really. While it might outflank the hate crimes lobby in the PR game by finding a politically congenial route to the fairest-policy outcome, it would not mislead voters. To the contrary, it would expose the double standard inherent in the hate crimes lobby’s notion that victims of most violent crimes should get less protection from the law than victims of bias-motivated crimes.

There was surely some truth to that notion back when some state and local judges and juries refused to punish white men for lynchings and other crimes against blacks. But how many times in the past 20 years have state officials been soft on such bias-motivated crimes? Not many (if any), I suspect. Indeed, local authorities using plain old murder statutes have severely punished the men who committed the monstrous crimes most often cited by the hate crimes lobby. In Texas, two white men have been sentenced to die and a third to life imprisonment for the racially motivated truck-dragging murder of James Byrd Jr. (Would this have been a lesser crime had Byrd been white?) In Wyoming, two thugs are serving life sentences for the sadistic robbery-murder of gay student Matthew Shepard.

This is not to deny that African-American victims, witnesses, suspects, and defendants are often treated badly by police and prosecutors. Racial discrimination in the criminal justice system is still an enormous problem. But no such official discrimination has been shown in cases involving bias-motivated crimes in recent years. And hate crimes laws are not a remedy for official discrimination.

Why, then, do some polls find widespread public support for hate crimes laws? In part, perhaps, because of the way the questions are worded. The outcome might be quite different if the questions described the actual effect of these laws more accurately. For example: "Should murderers and other violent criminals be punished less severely when motivated by bloodthirstiness, greed, depravity, or lust than by bias?" Try polling that one.

Well, one might ask, even if hate crimes laws are unnecessary, at least they make a nice symbolic statement: We hate hate. And what harm can they do?

Quite a lot, actually:

• By blending punishment for constitutionally protected (if bigoted) thoughts and speech together with punishment for violent criminal acts, hate crimes statutes smuggle into the law an unwholesome dose of thought control, which puts defendants on trial for their opinions along with their actions.

• By fostering the false notion that ordinary criminal laws don’t punish bigots adequately for their violent crimes against the usual victim groups, hate crimes laws fuel a wretched and divisive competition for victim-group status.

• Such laws also breed resentment among those who see themselves on the losing side of a double standard akin to racial preferences. "I find it hard to believe," writes crime scholar James Q. Wilson, "that federal prosecutors, equipped with this law, will go around looking for white males who have been beaten up by black gangs."

• Paradoxically, hate crimes laws sometimes operate in perverse ways unintended and unexpected by their supporters, perhaps even leading to conviction of innocent black defendants. That’s because these laws give too much power to prosecutors and police (who are often accused of racial discrimination) to hit defendants (who are often black or Hispanic) with hate crime charges for the purpose of inflaming juries, ratcheting up penalties, or diverting attention from evidence casting doubt on the defendant’s guilt.

• Hate crimes laws divert trials from the straightforward task of determining who did it into an elusive quest to identify the defendant’s inner thoughts-a quest complicated by the realities that motives are often mixed and bias is rarely the main one.

• The federal hate crimes statute undermines constitutional protections against double jeopardy by forcing defendants who have already been prosecuted in state court to face successive prosecution in federal court for the same acts. Moreover, political pressure and victim-group lobbying sometimes spur federal authorities to bring unwarranted prosecutions.

• The federal statute also intrudes into local matters unrelated either to interstate commerce or to official discrimination. For this reason, both the current statute and the pending bill may be unconstitutional (in whole or in part) under the logic of the Supreme Court’s May 15 decision striking down a key provision of the Violence Against Women Act.

New federal hate crimes legislation may be politically unstoppable in the long run. If so, the best course would be to expand the law’s coverage enough to reflect the fact that all violent crimes are in a sense hate crimes. That would make every crime victim special. And when every victim is special, no victim group is specially privileged.

The post Legal Affairs – Let’s Make the Federal Hate Crimes Law Broader-Much Broader appeared first on Stuart Taylor, Jr..

This describes the cases of both Amadou Diallo, who was riddled with 19 of the 41 bullets New York City police fired at him in the vestibule of his Bronx apartment in February 1999, and Rodney King, whose stomach-churning beating by Los Angeles officers wielding batons was so vividly captured on videotape in 1991.

The prosecution of the Rodney King cops did not end with their April 29, 1992, acquittals by the famous Simi Valley jury on almost all counts. (It deadlocked on one count.) Two days later, as Los Angeles burned, then-President Bush went on television to denounce the riots and to express shock and dismay at the verdict. He all but promised a federal civil rights prosecution. The indictments and trial-this time in Los Angeles-soon followed, ending in convictions of two of the four officers. Both men did prison time.

In some ways, the four plainclothes officers who shot Diallo might seem to be even more logical candidates for federal prosecution. King was a chronic lawbreaker who had led police on a high-speed chase and violently resisted arrest; he is alive. Diallo was a law-abiding street vendor from West Africa who was doing nothing wrong when he was mowed down outside his home; he is dead.

So should the Clinton Justice Department bring federal charges against the Diallo cops? The answer is no. The reasons are four:

1. The jury’s verdict is supported by evidence. The officers’ defense is easy to mock-that they shot Diallo to avoid being shot first because they mistook the wallet he pulled from his pocket for a gun, wrongly assumed that an officer who tripped had been shot, and mistook their own bullets’ ricochets for hostile fire. But this defense is also the only plausible motive for their actions. Nobody has suggested that they killed Diallo for sport or any other improper purpose. So the jury was right to acquit them of second-degree murder and other charges that hinge on criminal intent.

The real question is whether the officers’ fear was reasonable enough to excuse their actions. I had thought initially that at least some of these officers would, and should, be convicted of negligent homicide or reckless endangerment. But those of us who did not sit through the whole trial should hesitate to second-guess 12 jurors who unanimously agreed that there was not proof beyond a reasonable doubt of recklessness. And those of us who have never done dangerous police work in crime-infested neighborhoods at night should ask ourselves how confident we are that we would have held our fire while every other cop on the scene was emptying his gun-as police are trained to do once shooting starts.

In a federal civil rights case, the prosecution would have to prove not only that the officers were reckless but also that they "willfully" violated Diallo’s constitutional rights.

2. The trial was fair. There are no perfect trials, and critics have found fault with this one: The prosecutors were not passionate or aggressive enough; they should have had an expert witness of their own to counteract the compelling testimony by the defense expert, James Fyfe; Judge Joseph Teresi told the jurors too many times that they must acquit on all counts if the defendants reasonably believed Diallo posed a danger to them, and so on.

But many who were in the courtroom or watching on television were impressed by the eloquence of prosecutors and defense attorneys alike, the even-handedness of the judge, the conscientiousness of the jurors, and the emotionally wrenching testimony of the defendant officers. If not a perfect trial, it was a fair one.

As for the much-criticized decision by a state appellate court to move the trial from New York City to Albany, it’s hard to imagine a more appropriate case for a change of venue. So loud and menacing was the "no justice, no peace" clamor raised by the Rev. Al Sharpton and his allies that New York City jurors might well have feared ostracism-even violence-if they failed to deliver convictions.

In addition, the fact that the Albany jury included four black women (along with seven white men and a white woman), with one serving as foreperson, gave its unanimous verdict far more credibility in the eyes of many Americans than would have been possible had the jury been all white, or nearly all white. (The Simi Valley jury had 10 whites, one Asian, and one Hispanic.) Judge Teresi was wise to reject defense efforts to use peremptory strikes to remove three of these black women. The diversity of this jury gives the lie to any claims that racial bias or sympathy skewed the verdicts.

3. The federal government should respect double jeopardy principles. The Supreme Court has long held that the Constitution allows successive state and federal trials of defendants for the same acts because they are "separate sovereigns." And federal prosecutions have sometimes been essential to protect civil rights in those cases-common in decades past-in which biased state prosecutors, judges, and juries have conducted sham trials to let white assailants off the hook for anti-black or anti-Hispanic violence. At the same time, any federal prosecution of a defendant who has already been acquitted after a fair trial in state court does violence to the spirit of the Fifth Amendment’s double jeopardy clause, which was designed to protect innocent defendants from being put to the burden of repeatedly fending off the same charges.

Justice Department guidelines pay respect to double jeopardy principles by authorizing federal civil rights prosecutions in the wake of state court acquittals only when there has been something fundamentally wrong with the state process, such as "incompetence, corruption, intimidation," jury nullification, or a "manifestly inadequate" result. A debatable change of venue, or a prosecutor’s possible tactical mistake, is not in this category.

The Rodney King case is not a suitable precedent. Lou Cannon argues in compelling detail in his impressive 1998 book, Official Negligence, that "there was no fair basis" for the federal prosecution of the four officers who beat King. It was spurred, Cannon said, by President Bush’s political need to discourage further rioting and assuage the nationwide outrage at the Simi Valley verdict.

But even if federal prosecution were justified in that case, it would not be in the Diallo case. The differences include the evidence in the King case of criminal intent to inflict wanton violence, with one officer continuing to pound away long after the prostrate King had been subdued. In addition, the California prosecutors did an especially inadequate job in the King case, and much of the body politic nationwide (perhaps unfairly) viewed the Simi Valley verdicts as illegitimate. Most people who had (like Bush) seen the most damning segments of the video-which looked like a cold case of white-on-black police brutality-were unwilling to credit an almost-all-white jury’s failure to convict anyone of anything. The Diallo verdict has won far broader acceptance.

4. Individual cops should not be made scapegoats for systemic problems. None of this is to condone the suspected pattern of racial profiling and other harsh conduct by New York City police that has provoked hostility and fear in much of the black community. Mayor Rudolph W. Giuliani stresses that the New York police have fired their guns less often than their counterparts in any other large city, yet still have helped reduce the city’s crime rates. But the Street Crime Unit’s hyperaggressive tactics in stopping and frisking black men like Diallo-often based on little but their location, dress, and skin color-carries pre-emptive crime fighting to the point of harassment of innocent citizens. And the unit’s rapid expansion has led to inadequate training of many members, apparently including the four who killed Diallo. Perhaps the Justice Department’s pending investigation of the police department will help spur corrective action. Recruiting more black and Hispanic officers would also help.

Meanwhile, cops who commit crimes-such as those who tortured Haitian immigrant Abner Louima at a New York City station house-should go to prison. But it is not a crime to be poorly trained, or to be part of a swaggering, "we-own-the-night" police culture, or to stumble into a tragic mistake. That may be too charitable a description of the officers who killed Amadou Diallo. But the jury has spoken, and one fair trial is enough.

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But what about those liberals with censorial tendencies of their own? Are they Neanderthals, too-or some other, more sensitive, species?

It was Jesse Helms, the North Carolina Republican, who pushed through the Senate last summer a ban on use of federal arts money for "material which denigrates, debases, or reviles a person, group or class of citizens on the basis of race, creed, sex, handicap, age or national origin." (His more widely publicized provision would have cut off money for "obscene or indecent" materials.)

The president of the University of Pennsylvania denounced the Helms proposal as an effort "to cleanse public discourse of offensive material."

But in strikingly similar language, his own university forbids as harassment "any behavior, verbal or physical, that stigmatizes or victimizes individuals on the basis of race, ethnic or national origin … and that… creates an … offensive academic, living or work environment."

The urge to censor campus speech is prompted by dozens of ugly racist incidents that have fouled campuses around the nation. These have included the posting of racist epithets, jokes, and caricatures on signs and bulletin boards, and shameful physical and verbal attacks on minority students and homosexuals.

Vandalism and physical assaults or threats can of course be punished without free-speech qualms. But even purely verbal attacks can also inflict great trauma, especially on minority group members who feel isolated, conspicuous, and unwelcome on overwhelmingly white campuses.

The hard question, as posed by one college administrator, is this: "Do we really want a campus where a student can walk up to another student and say. ‘We don’t want niggers at the University of Connecticut’?"

I think the right answer is probably "no." To this extent, I part company with those free-speech advocates who contend that allowing such speech is part of the price we must pay to prevent erosion of the First Amendment. While a single racial epithet probably warrants no sanction beyond a warning, intentional infliction of extreme emotional distress through repeated taunts with such hate words, addressed directly at an individual, need not be tolerated.

Calibrated Sanctions

Suppression is justified by a recognized exception to the First Amendment when "fighting words" are likely to provoke violence. But even when a violent response is unlikely, carefully calibrated sanctions may be justified in rare cases.

The danger is that the spirit of censorship, once loosed, is not easily cabined. The new campus censors sec rules to protect individuals from direct harassment as building blocks toward broader suppression of racist and other speech offensive to their values.

Thus Professor Peter Edelman of Georgetown University Law Center, in his regular column in these pages ("Progress Report," May 15, 1989, Page 20), slid effortlessly from saying that "such vile speech [should] be punished when it is directed forcefully enough at a particular individual" to suggesting that universities should suppress racist speech in general "as constitutionally worthless," and calling for revival of the discredited doctrine of group libel.

His logic would blow a gaping hole in "the bedrock principle underlying the First Amendment … that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," in the words of Justice William Brennan Jr.’s opinion striking down flag-desecration laws last June.

It is one thing to protect individuals against outrageous forms of verbal harassment. It is quite another to brand whole categories of ideas, or means of expressing them, too offensive to be allowed.

Recent experience shows that anti-harassment rules conceived primarily to protect racial minorities from hateful epithets tend to get extended to a far wider range of speech and to an ever-lengthening list of groups of self-styled victims demanding the same special protection. Strongly colored by prevailing campus political orthodoxy, these rules cast a shadow over much speech that ought to enjoy First Amendment protection.

The rules at the University of Michigan, struck down by a federal district judge last September, had banned any speech that "creates an intimidating, hostile, or demeaning environment" if it "stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status." (How could they have omitted "size"? Are short people less deserving of sensitivity than singles or old people?)

Outlawed Jokes

An interpretive guide issued by the University Office of Affirmative Action suggested that Michigan students could be sanctioned for such actions as laughing at a joke about a classmate who stutters, telling "jokes about gay men or lesbians," commenting "in a derogatory way about a particular person or group’s physical appearance or sexual orientation," or saying in class such things as "women just aren’t as good in this field as men."

One Michigan student was subjected to a formal disciplinary hearing for having said in a social work research class that he believed homosexuality to be a treatable disease.

At the State University of New York at Buffalo, the law faculty voted in 1987, without defining its terms, to penalize all "remarks based on prejudice and group stereotype."

At Tufts University, a student was suspended temporarily for selling T-shirts inscribed with 15 reasons "Why Beer Is Better Than Women at Tufts."

Is it possible to protect individual minority students from being harassed with racist epithets and other personal abuse on campus without getting into censorship of everything from casual conversations to tasteless T-shirts?

I think it is. The key is not to enumerate categories of forbidden "discriminatory" speech, but rather to write narrow rules protecting every student from personal harassment that is intended to inflict extreme emotional distress, by whatever means and for whatever reason.

No Distinctions

In enforcing such rules, account should be taken of the especially wounding nature of racist and other hate epithets, well documented by the National Institute Against Prejudice and Violence. But a student who is cruelly harassed by others in her dormitory should have the same recourse whether her tormentors revile her for being black, or white, or homosexual, or, say, obese, or politically conservative, or socially awkward.

The fundamental flaw in the spate of anti-harassment rules currently being imposed by many universities is the making of distinctions based on the content of the harassing speech.

This fosters resentment by creating protected classes of students for whose feelings special .solicitude is required. And it sacrifices free-speech principles to attack what are, after all’, only the symptoms of underlying prejudices most effectively addressed through reasoned argument, not censorship.

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