Pelosi vs. the ACLU on the Federal Hate Crime Bill

As I noted on Friday, House Speaker Nancy Pelosi (D-Calif.) claims the latest version of the federal hate crime bill, which the House passed last week and the Senate is expected to approve any day now, includes  "protections for freedom of speech and association" that are "stronger" than the language in the version passed by the House last April. That's the reverse of the truth. Last spring's version said "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." The American Civil Liberties Union cited this safeguard in reversing its longstanding opposition to the bill. By contrast, the current version (PDF) says "nothing in this [bill] 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 all the crimes covered by the bill are acts of violence that already are illegal under state law, this assurance amounts to nothing. No serious critic of the bill argues that it will punish people solely for the things they say or the groups they join. But it's hard to deny that it will mete out additional punishment based on such factors, which will be cited as evidence that victims were chosen "because of" their race, religion, national origin, gender, disability, sexual preference, or gender identity. Despite Pelosi's assurances, the bill clearly states that "courts may consider relevant evidence of speech, beliefs, or expressive conduct to the extent that such evidence is offered to prove an element of a charged offense or is otherwise admissible."

As I argue in tomorrow's column, this means that people will, in effect, be punished for their beliefs—i.e., be subject to harsher federal penalties (as well as double prosecution) because of the opinions they express about blacks, Jews, women, gays, etc. The bill's promise that nothing in it "shall be construed or applied in a manner that infringes on any rights under the first amendment" does not change this basic reality. As interpreted by the U.S. Supreme Court, the First Amendment does not prohibit laws that enhance penalties for existing offenses based on expressive conduct presented as evidence of bigotry, as opposed to laws that criminalize expressive conduct itself.

In a July 14 letter (PDF) to the Senate, the ACLU objected to the weakening (or, as Pelosi would have it, the strengthening) of the bill's freedom-protecting language. Among other things, it warned that "if there is no specific prohibition on the admissibility of speech or membership evidence that is not specifically related to the offense, there is a significant danger that membership in a group—religious or nonreligious—that espouses discriminatory beliefs could be used to turn an otherwise unremarkable act of violence into a federal hate crime." The ACLU's position is that a defendant's speech should be considered relevant only if the government shows that it is "directly related to the underlying crime and probative of the defendant's discriminatory intent."

But in the end, although Pelosi clearly misrepresented the direction in which the bill moved, I don't think the requirement favored by the ACLU would make much difference in practice. A prosecutor could easily (and plausibly) argue that a website where the defendant rails against homosexuality is "directly related" to the charge that he punched someone "because of" his sexual orientation. Likewise, a defendant's membership in a white supremacist group probably would be deemed "directly related" to the charge that his attack on a black man was racially motivated. If so, there's no avoiding the reality that such defendants are punished extra severely because of the objectionable beliefs they express.

The version of the hate crime bill passed by the House last April is here. The version passed last week is here (PDF); it's now part of the 1,158-page National Defense Authorization Act, so you have to skip down to "Division E" (page 1059). More on hate crime laws here.