When is opinion actually grounds for a hate crime?

By Dennis Byrne
Chicago Tribune

Decades ago, north suburban Skokie, a predominantly Jewish community that included a significant number of Holocaust survivors, banned a hateful bunch of neo-Nazi morons who wanted to march in the village.

The American Civil Liberties Union sued the village, and U.S. District Judge Bernard M. Decker, in a decision upheld by the U.S. Supreme Court, struck down the ban. "It is better," Decker said, "to allow those who preach racial hatred to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear. ... The ability of American society to tolerate the advocacy of even hateful doctrines ... is perhaps the best protection we have against the establishment of any Nazi-type regime in this country."

Apparently, the constabulary in northwest suburban Crystal Lake disagrees, seeing fit to arrest two high school girls for handing out allegedly anti-homosexual literature at their school. We have to say "allegedly" because the specifics of the girls' pamphlets have not been disclosed because they are "evidence," the police said. We are to believe that two girls are such a big threat to the commonweal that they should be arrested on -- get this -- felony hate-crime charges.

As a sideshow to this circus, one of the girls has been locked up until trial because the judge decided the girl's supposed unhealthy home environment and lengthy juvenile record did not allow home detention. Thus, for exercising her right of political speech, she has ended up in the slammer.

Even the most blindly ardent advocate of hate-crime statutes should be able to understand the problem here. The underlying charge against the girls is disorderly conduct; the two girls may or may not have violated that law. But the seriousness of the charge has been jacked up beyond reason to a felony because of a viewpoint that they expressed.

They did not physically endanger or attack anyone, if the news accounts are accurate. They did not incite a riot; they did not cry "fire" in a crowded theater. They expressed an opinion. We are constantly advised by devotees of ever tougher and more expansive hate-crime legislation that it poses no danger to free speech or expression. Such arguments are revealed by the Crystal Lake case to be a load of malarkey. But if you express a concern about the 1st Amendment impacts of hate-crime legislation, you become a prime target for an unconscionable political attack.

For example, Michael C. Dorf, writing in FindLaw.com, just knows that President Bush is anything but pure of heart in opposing a new attempt to expand federal hate-crime legislation. "The true grounds," he said, "for the president's threatened veto appear to be simpler and more odious [than legitimately arguable reasons]: The Bush administration aims to curry favor with voters who oppose any legal recognition for same-sex relationships, even protection against private violence." We all should be blessed with such an ability to peer into people's hearts.

The problems with federal hate-crime laws are many, including using interstate commerce clauses or the 13th Amendment to justify them. Not the least of the problems is how to decide who qualifies for hate-crime protection, without becoming arbitrary. Congress defines a hate crime as one "in which the defendant intentionally selects a victim, or in the case of a property that is the object of the crime, because of the actual or perceived race, color, national origin, ethnicity, gender, disability or sexual orientation of any person."

What qualifies these categories of people, we're told, for hate-crime protection is the history of persecution they've suffered. The rest of us don't qualify if hate motivates a crime against us, because we (presumably) are not a part of any group that has been historically persecuted.

How do you know which groups have been persecuted enough to qualify for protections against hate crimes? Why are protections provided for sexual identities, but not for the homeless? How about protections against crimes of hatred based on economic class?

The response is that the protected categories are selected to deliver a message that helps to protect everyone else in a traditionally despised group.

But that response is insufficient: If a crime motivated by hate is bad for one person, under the equal protection of the law concept found in the Constitution, it is bad for everyone. If we're going to have hate-crime laws, they should protect everyone. Not just the groups that cynical politicians want to cultivate for votes.