On Friday, I had the privilege of testifying at a U.S. Commission on Civil Rights briefing about whether the government needs to do more to prevent hate crimes. It was an informative, entertaining, and at times combative event, given that two of the eight commissioners—Gail Heriot (a Volokh Conspiracy contributor) and Peter Kirsanow—seemed to agree with me that the 2009 federal Hate Crimes Prevention Act was ill-advised.
The U.S. Commission on Civil Rights is charged with investigating and compiling reports on various civil rights issues; it relies on 51 state-based advisory committees to make recommendations. (In addition to testifying at this briefing, I am a member of the D.C. advisory committee.) The commission's current chair is Catherine Lhamon, whose Obama-era stint as an assistant secretary at the Education Department I have criticized for undermining due process on campus. (I should note that despite our disagreements, Lhamon has been incredibly friendly to me in person.)
The event—"In the Name of Hate: Examining the Federal Government's Role in Responding to Hate Crimes"—began with Lhamon's introductory remarks. Then she yielded the floor to Heriot, who took a few minutes to explain why she was dissenting from the day's proceedings.
"Let me say that I am not really a fan of most hate crime laws, which I believe have a tendency to fuel identity politics at a time when the nation needs to come together," said Heriot. "In particular I oppose the federal hate crime statute passed in 2009."
The 2009 law added gender, gender identity, sexual orientation, and disability status to the list of protected classes, and it established that a person no longer needed to be involved in a federally relevant activity (like voting) in order to be deemed a victim of a federal hate crime. This was a vast expansion of the federal government's ability to prosecute people for hate crimes, and it poses significant "double jeopardy" concerns, because it gives federal officials the opportunity to re-try defendants who survived state-based prosecutions.
"The [double jeopardy] clause does not apply when both the state and the federal government seek to prosecute the same defendant," Heriot explained.
After Heriot voiced her objections, the first panel began. The participants were several members of local law enforcement departments from around the country, an assistant attorney general, and me. In my remarks, I urged public officials and the media to avoid blurring the distinction between hate crime—leveling additional penalties against people whose criminal actions impugned a special class—and hate speech, which is protected expression under the First Amendment. I also stressed that while we hear many pundits asserting that hate crimes are on the rise, this fact is not clearly supported by the available data. The hate crime rate has remained essentially unchanged over the last decade; moreover, the purported "Trump effect" in American schools is difficult to parse and possibly overstated. (Consider, for instance, the number of unsolved or outright hoax bias incidents on college campuses.) As I said in my remarks:
I do not suppose that a large percentage of hate crimes are hoaxes, but since perpetrators on campuses are seldom apprehended, it's difficult to know what proportion of the incidents were exactly what they seemed to be. That makes life difficult for the authorities who are trying to compile and publicize relevant, accurate information.
In conclusion, I would urge policymakers, law enforcement, and other authorities to resist media pressure to characterize the current atmosphere in the U.S. as one of increasing hatefulness. While the government can and should continue to track and prosecute criminal activity, we must remember that our cherished First Amendment freedoms are often the first casualty of government-led efforts to crack down on undesirable behavior. There are vastly fewer protections for free expression in other countries, and we see the costs of that every time. Scotland, for instance, recently arrested and fined YouTube comedian Mark Meechan for committing a hate crime. What was this crime? The man made a joke video of his girlfriend's dog performing a Nazi salute. He concludes the video by noting, "I'm not a racist, by the way." He just really wanted to tick off his girlfriend.
And in Liverpool, a young woman named Chelsea Russell was reported to a hate crime unit for posting the lyrics to a rap song by the musical artist Snap Dogg on her Instagram page. She was doing this in tribute to a young man who had been struck and killed by a car and had enjoyed the song. The authorities never charged anyone in connection with the young man's death, but they did arrest Russell. She was convicted at trial. The judge said, "There is no place in civil society for language like that." She will have to wear an ankle monitor for eight weeks.
These hate crime arrests in the U.K. underscore the need for officials in our own country to remain cognizant of the line between hate speech and hate crime, and to avoid fatalism and pessimism when considering whether the reach of hate is growing.
While the other panelists seemed more enthusiastic about involving federal authorities in hate crimes prevention, they provided ample reason to doubt everything we think we know about the prevalence of hate crimes. Several panelists conceded that 88 percent of the police departments that bothered to submit hate crime information to the feds in 2016 reported zero hate crimes. Four municipalities that include more than 250,000 people apiece didn't report any information whatsoever. Baltimore County—population: 831,000—reported just one hate crime.
Assuming that there was probably more than one hate crime in Baltimore County last year, this suggests there's massive room for improvement when it comes to local hate crime reporting—and that better reporting might very well make it look like hate crimes are spiking. For instance, if the same county reported five hate crimes next year, it would seem like hate crimes had increased by 500 percent.
Some of the panelists conceded that they are often dealing with very low numbers, and with degrees of subjectivity. Chief Marc Green of the Seattle Police Department said that both "non-criminal bias incidents" and "crimes with bias elements" had risen substantially in the past year, but under questioning from Heriot he eventually admitted that non-bias crimes had risen as well.
There's an important distinction, of course, between "non-criminal bias incidents" and "crimes with bias elements," in that the former category includes things that are not actually crimes, though the authorities may track them anyway. And though the briefing was ostensibly aimed at combatting hate crimes, some latter participants did indeed discuss the work their organizations were doing to track and counter hate-filled speech—which is fine if you're an advocacy group, but constitutionally suspect if you're the government. During the panel that took place after mine, Melissa Garlick of the Anti-Defamation League said the following:
Over the past few years we've seen hate-filled language, memes, stereotyping, and scapegoating injected into the mainstream of America's political and policy debate, especially through traditional and social media. Over the course of the 2017 election we saw a level of anti-Semitism and the normalization of bigotry that deeply concerned us at ADL. And now we see rhetoric which involves stereotyping and attacks based on national origin, religion, and physical appearance cemented into federal policies and executive actions that marginalize communities already vulnerable to hate crimes and deter these individuals from reporting such crimes to local police. Our recent audit on anti-Semitic incidents showed that the number of incidents remained significantly higher in 2017 compared to 2016, with an increase of 57 percent. Now, these incidents include both criminal and noncriminal acts of harassment, but they provide an important snapshot into trends of anti-Semitism in our society.
Probably the best argument against strengthening federal hate crime prevention efforts was articulated by Commissioner Kirsanow, who asked just two questions during my panel. He directed his questions to all of us, and invited anyone who possessed the information to answer.
"Are you aware of any data, studies, or other evidence, that shows designating a crime a hate crime deters, prevents, or reduces that crime, and second, whether designating a crime a federal hate crime reduces, deters, or prevents incidents of that crime?" he asked.
Neither I nor any of the other panelists were aware of such information, and so the panel fell silent.
Kirsanow continued. "Then, one other question: are you aware of any databases, study, or other evidence that shows designating a crime a hate crime, whether a municipal, federal, or state crime, assists in the resolution of that crime or the apprehension of the perpetrator?" he asked.
"Thank you, Madame Chair," he said, yielding the floor.
The entire briefing was streamed on C-Span. To watch the first part, which includes my panel, go here. Video of the rest of the briefing is available under the "More Videos from USCCR Hate Crimes" heading, midway down the page.