[Peace-discuss] Thought crimes

[C. G. Estabrook]

	Senate Hate Crimes Bill Threatens First Amendment
	By: bmaz Friday July 17, 2009 1:49 pm

There are inherent First Amendment and equal protection issues with any "hate 
crime" legislation as I pointed out when Eric Holder started aggressively 
pushing Congress for passage of a new bill. That said, if you are going to enact 
such laws, they must be targeted, rational and designed to effect the result 
desired and not any other. Such laws should not be vague and expansive, should 
not be able to be wielded by prosecutors as selective bludgeons and should not 
infringe on First Amendment rights to free speech and association.

Late Thursday night, the Senate passed a Hate Crimes Bill that arguably violates 
all of the above.

People attacked because of their sexual orientation or gender would receive 
federal protections under a Senate-approved measure that significantly expands 
the reach of hate crimes law.

The Senate bill also would make it easier for federal prosecutors to step in 
when state or local authorities are unable or unwilling to pursue hate crimes.

"The Senate made a strong statement this evening that hate crimes have no place 
in America," Senate Majority Leader Harry Reid, D-Nev., said after the chamber 
voted Thursday to attach the legislation as an amendment to a $680 billion 
defense spending bill expected to be completed next week.

The House in April approved a similar bill and President Barack Obama has urged 
Congress to send him hate crimes legislation, presenting the best scenario for 
the measure to become law since Sen. Edward Kennedy, D-Mass., first introduced 
it more than a decade ago.

According to the ACLU however, the Senate botched the job:

The Senate late Thursday passed an amendment as part of the Department of 
Defense Authorization bill that would give the federal government new authority 
to prosecute certain violent acts based on race, color, national origin, 
religion, gender, sexual orientation, gender identity and disability. However, 
the Senate version of the hate crimes bill lacks the strong protections for 
speech and association included in legislation passed by the House of 
Representatives in June. The American Civil Liberties Union believes that 
without the speech and association protections included in the House bill, the 
Senate hate crimes legislation could have a chilling effect on constitutionally 
protected speech and membership.

The following can be attributed to Christopher Anders, ACLU Senior Legislative 
Counsel:

“It has been our experience that the fight for better and stronger civil rights 
protections is more successful when free speech and association are protected 
along the way. Fierce protection of free speech rights has historically created 
the space for the improvement of civil rights protections. Unless amended to 
block evidence of speech and association not specifically related to a crime, 
the Senate hate crimes amendment could chill constitutionally protected speech 
and association. An otherwise unremarkable violent crime should not become a 
federal hate crime simply because the defendant visited the wrong website, 
belonged to a group espousing bigotry, or subscribed to a magazine promoting 
discriminatory views, however wrong and repugnant those beliefs may be. We urge 
Congress to instead adopt the House version of the hate crimes bill, which 
protects both civil rights and free speech and association.”

The actual bill passed is S 909 and it passed 63-28. The better House version is 
H.S. 1913. Basically, the upshot is that the scope of the legislation is so 
broad that it arguably can be used to criminalize and potentially prosecute 
protected free speech and association. This is a very real fear, witness how 
fast one lobby, the fundamentalist religious sect, went to work on the issue; 
they had an amendment tacked on prior to allowing the bill to reach a vote:

The amendment, which was introduced by Senator Sam Brownback (R-Kan.), 
essentially clarifies that speech from the pulpit, electronic or otherwise, 
remain protected unless its intent was to cause violence.

The amendment says that nothing "shall be construed or applied in a manner that 
infringes the rights under the First Amendment to the Constitution of the United 
States, or substantially burdens any exercise of religion (regardless of whether 
compelled by, or central to, a system of religious belief), speech, expression, 
association, if such exercise of religion was not intended to 1) plan or prepare 
for an act of physical violence or 2) incite an imminent act of physical 
violence against another."

So the lethal right to life zealots will bath themselves in the trappings of the 
church and march on. No such protections for other groups though; in fact, the 
Senate version arguably expands the ability to use the legislation as a 
selective tool. The main provision contained in the House version the ACLU is 
complaining of being omitted from the Senate bill passed last night is as follows:

Evidence of expression or association of the defendant may not be introduced as 
substantive evidence at trial, unless the evidence specifically relates to that 
offense. However, nothing in this section affects the rules of evidence 
governing the impeachment of a witness.

Interestingly enough, this provision was contained in the original Senate draft 
of the legislation in 2007. The ACLU feels the language is necessary to block 
admissibility of evidence of speech and association not specifically related to 
a crime, and that the legislation without such language could chill 
constitutionally protected speech and association. How did it come to be 
removed? By relentless lobbying by the Department of Justice (Hey isn't that 
Eric Holder guy over there?). From a July 14 ACLU letter to Senators:

Although the Justice Department has argued that it usually avoids attempting to 
introduce evidence proving nothing more than that a person holds racist or other 
bigoted views, it has lobbied hard this year against having the Senate include 
the House-passed speech and association protections in the Senate bill. The 
Justice Department is specifically seeking to use evidence of a person’s speech 
or association even if the evidence does not specifically relate to the offense.
...
The problem today is that there is an increasing focus on “combating hate,” 
fighting “hate groups,” and identifying alleged perpetrators by their membership 
in such groups--even in the absence of any link between membership in the group 
and the violent act. Those arguments are very different from the arguments made 
in support of the criminal civil rights statute when it passed as an important 
part of the historic Civil Rights Act of 1968.

There is a danger that--after years of debate focused on combating 
“hate”--courts, litigants, and jurors applying a federal hate crime statute 
could be more likely to believe that speech-related evidence that is unrelated 
to the chain of events leading to a violent act is a proper basis for proving 
the intentional selection element of the offense. The House-passed evidentiary 
provision would stop the temptation for prosecutors to focus on proving the 
selection element by showing “guilt by association” with groups whose bigoted 
views we may all find repugnant, but which may have had no role in committing 
the violent act.

The ACLU is exactly correct here, the provision, as elegantly brief as it is, is 
critical. It is my experience that prosecutors use hate crimes statutes much 
more as leverage to force plea agreements and prove defendants guilty simply on 
the basis of non-conforming speech and membership in gangs, fringe political 
groups and the like than they do for the righteous purpose intended. The DOJ is 
point blankedly saying that is exactly what they desire to do and the Senators 
allowing this are carrying their ill-conceived water.

Congressmen Conyers, Scott and Frank have vowed to keep the language included in 
any final hate crimes legislation, they deserve accolades for their efforts, and 
the DOJ and Senate deserve jeers for theirs. And there is another bastardization 
of the process in the offing too. On Monday, Senator Jeff Sessions is having his 
amendment to include the death penalty added to the penalty provisions of the 
Senate Hate Crimes Bill voted on.

Quite frankly, it is arguable whether hate crimes laws are appropriate in the 
first instance, but if they are to exist, they must not be allowed to be tools 
of selective prosecution and prosecution of thought and status crimes, and there 
is no need for the conservative fixation on the death penalty to be involved either.

http://emptywheel.firedoglake.com/2009/07/17/senate-hate-crimes-bill-threatens-first-amendment/#more-4509