Federal Hate Crime Law Looks Inevitable

Last week the Senate approved the Matthew Shepard Act, which dramatically expands the "hate crimes" covered by federal law, as an amendment to a must-pass military spending measure. Since the House already has passed a stand-alone version of the act, which President Obama strongly supports, it is expected to become law by the end of the year. Yesterday I discussed that prospect on The Bob Zadek Show, which airs on San Francisco's KNEW. The major themes of the hour-long show: The hate crime bill exceeds the federal government's constitutional powers, allows retrial of defendants acquitted in state court, violates the principle of equal protection by giving special treatment to crime victims if they belong to certain groups, and punishes people for their speech and beliefs by enhancing penalties for crimes motivated by bigotry.

Regarding that last problem, the House version of the bill includes a provision, demanded by the American Civil Liberties Union as a condition of its endorsement, that says "evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense." I'm not sure how much impact that provision would have in practice. Wouldn't evidence of a defendant's opinions about homosexuality, for example, be deemed "specifically related" to his motivation in beating a gay man? In any case, the Senate version of the bill instead says that "nothing in this Act shall be construed to allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs" (emphasis added). Since any prosecution under the law hinges on the commission of a violent crime, that provision does nothing to prevent the introduction of constitutionally protected speech as evidence to support a conviction. It will be interesting to see whether the ACLU, which has long been divided on the issue of hate crime legislation, withdraws its support for the bill if the final version includes this meaningless reassurance instead of the provision the organization favors.

The House version of the Matthew Shepard Act is here; the Senate version is here. A recording of yesterday's radio show is available here. Previous Reason coverage of hate crime laws, including my 1992 feature story and my last column on the subject, here.