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.

NEXT: Bondage and Discipline Make the Supreme Court

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  1. 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.”

    In other words, the “Civil Liberties” Union is in favor of shredding our civil rights — just not as quickly as Pelosi.

    Got it.

    Can we pass a law requiring the ACLU to put quote marks around the C and L parts of their name, to reflect their Statist Lite orientation?

    1. A”CL”U I kinda like it, but it reminds me of H.P. Lovecraft too much.

      1. Ph’nglui mglw’nafh A’cl’u st’at’ism wgah’nagl fhtagn

        1. Chant all you want, Joe isn’t coming back.

    2. It’s important to make a distinction between the ACLU and the ACLU Foundation.

      The latter is the tax-exempt organization which provides legal services to people in support of their constitutional liberties, especially the 1st Amendment.

      The former is the non-tax-exempt political lobbying group, which often supports statist policies, and which has a rather spotty history of supporting liberty, especially of the 2nd amendment sort. They support federal regulation of private employers compensation policies as related to gender-based pay differences. They support federal sex education funding. They support federal net neutrality laws. etc, etc, etc:

      Sadly, the two are often confused.

  2. More proof, not that any was needed, that the oft-stated belief that the Dems are more respectful of civil liberties is a load of bullshit.

    1. I would take politically correct looniness over paramilitary wiretapping looniness. That is the current choice.

      1. Yes it’s a good thing the current administration has ceased and desisted from all that wiretapping stuff.

      2. The PATRIOT Act was both passed and renewed with overwhelming bipartisan support.

      3. No, the current choice is between paramilitary wiretapping looniness AND politically correct looniness, or just paramilitary wiretapping looniness.

        The Dems love them some police state.

        1. only when they’re in control. When the other guys are in power, all of that police state stuff is scary!

  3. Pelosi’s existence is a hate crime.

    1. That made me laugh right out loud. Best thing I have read all day =) Thanks for your wittiness!!

  4. As I argue in tomorrow’s column, this means that people [read as white christian males] 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. [but not white christian males as they are obviously the villain necessitating these hate laws, and if not the villain guilty of that particular crime, then for a crime of racial hate they undoubtedly committed but escaped justice for]

  5. The Dems are for civil liberties just like the GOP is for reduced government: when they’re out of power, they make noise about it, but as soon as they get the power, it goes out the window.

    Anybody who pretends otherwise is a lying douchebag.

  6. I just love all the anger management ads appearing in the right margin of this page. 🙂

  7. race, religion, national origin, gender, disability, sexual preference, or gender identity

    So if someone hates on me because I’m from Texas, that’s a federal offense? 😉

    OTOH, at least they left out “roots for a different football team.”

  8. How much abuse can straight white gentile males take before they start to get testy?

    1. Ironically, iirc blacks arrested for anti-white hate crimes constitute a % of arrestees larger than their relative % in the overall US population, so these laws will disporportionately affect minorities. They’re pretty stupid though for the reasons Sullum et al have given over and over on this site.

      1. …so these laws will disporportionately affect minorities.

        I wouldn’t bet money on that.

  9. How much abuse can straight white gentile males take before they start to get testy?

    You posted this in the wrong thread. The S&M thread is below.

  10. No serious critic of the bill argues that it will punish people solely for the things they say or the groups they join.

    Whether this bill will or not, that is the ultimate goal of many of its supporters: they want to legislate “hate” out of existence, or at the very least drive its expression so far underground that people are scared to act in any way that might be seen as prejudicial against the favored groups.

    While this doesn’t set up Canuckistani human rights commissions directly, I’m sure that once it’s on the books that it will be applied in conjunction with RICO or similar provisions to go after folks for instigation of “hate”. If that succeeds legally a few times (and in our current climate, I suspect it would), then the bar for prosecution solely based on your stated and expressed beliefs will drop further and further until you’ll find things like (some) gays bringing suit against employers who fire them because they’ve managed to find something like support for Proposition 8 in the employer’s history, which, it will be argued, is indicative of creating a hostile climate and a willingness to conspire against gays, or something like that.

    Despite the supposed protections for freedom of conscience and so forth, the intent of the bill is clear and it actually isn’t hard to see how, in the end, it will be used to prosecute people solely on stated belief (as long as a figleaf of action, whether criminal or not, can be found to justify it).

    So, while “no serious critic” will claim that this bill will “punish people solely for the things they say or the groups they join,” I think it’s reasonable to assume that the weak assurances being made that it won’t do so will be ignored and that it (or its stronger successor) will, in the end, lead to exactly that point.

    I am not a conspiracist about legal matters in general, but this one seems to be too obvious an outcome to ignore given that a large chunk of our legal class (on both sides) secretly considers the first amendment to be an obstacle to their grand schemes of creating the world in their own image.

  11. . . . includes “protections for freedom of speech and association” that are “stronger” than the language in the version passed by the House last April.

    Too bad they were not trying to make it stronger than, oh, say, THE CONSTITUTION!

  12. I’m fine with using “This guy happens to be a member of the KKK” as evidence that someone has some prejudice that would go to motive in a crime. But I certainly see no reason to make it a federal case, nor to force the judge to raise the sentence over it.

    If you can get off with 4 years for cracking someone’s skull with a baseball bat just because you didn’t like them, then maybe you should think about raising that by itself, not just for certain color/religion combinations.

  13. So remember, when shooting, raping or beating someone, to avoid federal hate crime prosecution, may I suggest the following disclaimer be read:

    “I am an equal opportunity thug. I engage in acts of violence against all people without regard to race, religion, sex, national origin, age, disability or sexual orientation. I have nothing but the utmost respect for you as a person notwithstanding the act of violence I am committing. My caving in of your skull should in no way be construed as a reflection of your race, religion, sex, national origin, age, disability or sexual orientation. Any prior statement, comments etc. of mine that may be construed to the contrary are hereby withdrawn and should be deemed null and void.”

    1. Well said.

      I live in Chicago (rated by Reason magazine as the least free city in America) we led the nation last year in total murders and are on track to repeat this year.

      But few if any of Chicago’s murders qualify for the strict PC terms as “hate crimes” – thus Chicago’s large numbers of murderers, thugs, robbers are apparently committing “love crimes”, or their crimes are motivated by economic interests, it’s not their fault, but is the fault of society for not having enough government programs to give these killers jobs, housing, medical care and feelings of self worth and equality to people who live in places like Montana and Wyoming where there are few or no murders.

      Yes, Chicago’s murderers are some of the least hateful killers in our country.

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  15. That’s the reverse of the truth.

    Nice turn of phrase that.



    2. Actually it came out years ago that Sheppard was not murdered because he was gay. He was murdered in a drug deal/robbery gone seriously wrong. But the lefties casually ignore those facts.

  17. A “reasonable”, fair minded person who has studied hate crime/hate speech laws in the EU/Canada and on American universities understands what’s going on here:

    It is a simple power game for an ever expanding list of special PC victim groups and self anointed leaders of these groups who demand special rights denied to other Americans and who present themselves and their group as “historic victim groups” who now need special laws, special “programs” to protect them from being hurt or even “offended” by something someone says, writes or thinks.

    I note that Sen majority leader Harry Reid and Attorney General Eric Holder concede that Fed Hate Crime laws are not designed to protect all Americans, just historical victim groups who have been targeted for who they are. Harry Reid lists:

    The Disabled

    Sometimes Reid lists Jews, but current PC power plays in Europe, Canada have Muslim immigrant groups taking hold of these Hate Crimes/Hate Speech laws to persecute Jewish citizens with ties to Israel or anyone who draws a cartoon they don’t like or makes a comment to the effect that some Muslims are violent – whereupon certain Muslim groups in Europe, UK all over the world engage in violent riots to protest the offensive charge that some Muslims are violent.

    Here is an excellent video that shows Eric Holder’s testimony that Hate Crime Laws are not intended to protect all Americans.


    1. Not to be too cynical, jack, but don’t you mean to say:

      “I note that Sen majority leader Harry Reid and Attorney General Eric Holder concede that Fed Hate Crime laws are not designed to protect all Americans, just groups who have loyally voted Democrat and want to be rewarded for their loyalty.”

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