Free Speech

"To Refute the Belief That BLACK LIVES MATTER … Through Words, Actions, Vandalism, or Destruction IS A HATE CRIME"

|The Volokh Conspiracy |

That's from the New Castle (N.Y.) Town Board (and then reposted by N.Y. state senator Pete Harckham):

Make no mistake, to refute the belief that BLACK LIVES MATTER in any way, shape, or form, through words, actions, vandalism, or destruction IS A HATE CRIME.

The statement is in response to what appears to be the burning of a Black Lives Matter sign that had been put up at a local Quaker meeting house; and that of course is a crime, which should be punished. (It's not clear to me whether it's a hate crime under New York law, since it doesn't seem to be motivated by the religion of the Quakers, or the race of any particular person; in any event, though, it's certainly a crime even apart from that.)

But the language of the Town Board doesn't focus on this being vandalism or arson—rather, it focuses on the action "refut[ing] the belief that BLACK LIVES MATTER" (presumably using "refute" in the sense of "deny or contradict" rather than "prove wrong"), which is to say on the political viewpoint that the vandalism and arson express. And, to make that clear, the Town Board says that "refut[ing this] belief" "in any way, shape, or form," including "through words" (the first item in that list) "IS A HATE CRIME." That's targeting not just a viewpoint expressed through "vandalism" or criminal "destruction," but also through "words."

At this point this seems like just political rhetoric, and not a threat of prosecution for "refut[ing] … through words" that could lead to a legal challenge. But it's political rhetoric that strikes me as quite sharply at odds with First Amendment principles, which I thought worth mentioning.

Thanks to Zhengxi (Larry) Liu for the pointer.

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  1. For example, it would be a hate crime under the resolution to deny the value of black lives by aborting a black baby.

    1. Those lives don’t matter. They have already made that clear in their public statements.

    2. Black fetuses, like white ones, are not babies, so aborting them is fine, if that is what the pregnant person wants.

      1. Your statement and lack of gender specific pronouns shows that you are exceedingly ignorant of biology and science.

      2. child (definition 3a) – “an unborn or recently born person”

        baby (definition 1(a)(1) – “an extremely young child.”

        In any case, Anne Frank wasn’t a baby on the eve of her murder.

  2. Prof. Volokh knows his audience.

    1. Ah, the ad hominem attack. Last refuge of small minds.

      1. I perceive that the lathering is predictable and likely intended. How is that “ad hominem?”

    2. Why does “the audience here actually have free speech values” even need a comment?

      1. I think his point is that “freedom of speech = racism.” (Like every other freedom, according to this book.)

  3. I’m sure the BLM bunch would love to think criticism of them is a hate crime…

    1. I mean, they’re already out there demanding white people kneel to them.

      1. As did the Klan of the 1920’s.

      2. Silly me…I thought it was the BLM folks doing the kneeling.

        1. One knee, not two. Big difference.

    2. Wrong think beliefs are now criminal, and silence is violence.

      It’s been a great summer! Haha.

  4. Black Lives Matter isn’t a belief, it’s a slogan.

    It’s designed to appeal to everyone by being capable of supporting any interpretation from “Bunnies Are Soft” to “Kill the Capitalist Pigs.”

    If you asked a random 100 BLM protestors what “Black Lives Matter” means you’d get 100 different answers. Unless the protestors were Jewish, in which cases you’d get at least 200 different answers 🙂

    1. Or, as Eric Weinstein would describe, it is an “overloaded term.” It means many things and you never know which meaning is in effect when someone is talking about it.

    2. Get your meme right. 2 Jews; 3 opinions. So if you had 100 random Jewish BLM protestors, you would have 150 opinions. And, have a good Shabbos tonight.

      1. No, it grows exponentially. 2 Jew 3 opinions, but 100 Jews, 200 opinions.

    3. It’s very much like the Occupy Wall Street movement. However it is much more violent and destructive than OWS and is more often used as a cover for theft and thuggery by those who really don’t care that much about what BLM might, or might not, “stand for”.

  5. Looks like hyperbole to me.

    1. I bet people in England thought it was hyperbole when leftists talked about speech-based “hate crimes” . . . until they started arresting people for Facebook posts.

      1. “A History of the English-Speaking Peoples” isn’t quite out of history, yet.

  6. All lives matter.

    1. That’s considered hate speech.

      Even when a police department says: “The speed limit is 25 mph. Please drive safely. The safety of all lives matter.”

      See: https://www.wcvb.com/article/mayor-orders-traffic-sign-reading-all-lives-matter-to-be-taken-down-in-melrose-massachusetts/33252187

  7. Make no mistake, to refute the belief that BLACK LIVES MATTER in any way, shape, or form, through words, actions, vandalism, or destruction IS A HATE THOUGHT CRIME.
    Fixed it for you.

    1. The group of people in Fahrenheit 451, hiding away with memorized novels, really better hide well.

  8. The leftist definition of “hate speech” is speech that they hate.

    They especially hate speech that refutes (in the sense of prove wrong) their assertions.

  9. No, what people are missing here is the claim that defacing a BLM sign itself is a hate crime, and this resolution is in response to that.

    1. In other words, it won’t be possible to define destruction of a BLM sign as a “hate crime” as the BLM sign will be defined as “hate speech” and hence not protected. Actually, in the twisted mentality of the left now being used by the right, not protected at all.

      This means that the BLM sign is defined as vandalism, not the destruction of it.

      Hey, the left invented the concept of “hate crimes” and “hate speech” and now those concepts are being used against it.

      1. My bad — I read the resolution the way I wanted it to read and not the way it actually is written.

        The latter, sadly, is standard fare from White Leftists today — and I wouldn’t be surprised to see SCOTUS toss the entire concept of hate crimes when this is all over.

        1. I wouldn’t be surprised to see SCOTUS toss the entire concept of hate crimes when this is all over.

          Unfortunately, probably not unless Ginsburg has a major medical “event” in the next 140 days or, at the outside, 158 days.

          1. Right. If Biden wins, I would expect the Court to eventually get around to enshrining ‘hate speech’ as an official exception to freedom of speech… one of many. He co-sponsored an amendment to gut the 1st amendment, but with a few SC nominations, he wouldn’t need the states to ratify an amendment.

            And that isn’t the only Constitutional right in his crosshairs. His gun plank is a real nightmare. Any gun he declares an “assault weapon” would have to be registered as a NFA weapon or turned in, for instance.

    2. …the claim that defacing a BLM sign itself is a hate crime…

      It is not just a “claim” anymore:

      http://www.thesmokinggun.com/buster/black-lives-matter/blm-mural-defaced-275830

  10. It isn’t even clear that burning the sign was meant to deny that black lives matter. It could have been meant to say that the organization, “Black Lives Matter,” doesn’t practice what it’s name preaches.

    1. What would burning a “White Power” sign be intended to mean?

      And what, really, is the difference between the two signs?

      Or, for that matter, the KKK of a century ago and BLM of today?
      Both murder innocent people, both intentionally terrify portions of the population, and BLM has caused far more property damage.

      And much as the Klan did a lot of damage to the social institutions of the 1920’s when it imploded, BLM is going to do a lot of damage to Higher Ed when it implodes.

      1. “. . . BLM is going to do a lot of damage to Higher Ed when it implodes.”

        So a win-win in your eyes.

        1. Well, the Masons never regained the strength they had before their involvement with the Klan. They had to purge much of their leadership and a purge of much of the higher ed leadership would be an exceptionally good thing.

          People forgot what happened to the Klan — one of it’s leaders raped & murdered a young woman, except that she took several days to die and in the process told everyone the truly sick things he’d done to her. The folks running BLM are no more noble and I suspect that it is only a matter of time before something similar happens.

    2. But I thought that burning a symbol may not be a crime because it qualifies as expression.

      1. Burning a symbol can’t be a crime. But burning the material in which the symbol is made manifest, e.g. a physical flag, can be a crime, e.g. if it’s not yours, or if you’re violating the fire laws.

  11. Lest we forget, this was BLM, circa 1928.
    https://www.youtube.com/watch?v=5u1QARlCph0

    History is repeating itself.

    1. BLM is not the KKK, you ridiculous little man.

      1. They don’t have the hoods…yet….

      2. Which group am I talking about?

        – engaging in criminal violence in pursuit of a political agenda
        – semi-openly supported by (some) Democratic officials

        1. As someone succinctly put it, BLM is “a movement whose defining features are intimidation and mass violence.”

      3. Yes, they are pretty much exactly the same thing, including which party they come from and which one they seek to stop from voting. Only the color of people in each faction has changed.

  12. I entirely agree, however, although you won’t recall, you and I emailed about about this years ago Prof. I was explaining my point of view that punishing pure thought as the motive for a crime was a first amendment violation. You pointed out the usual cases that state that there’s never been an issue with courts punishing people for motives. I retorted that punishing a bad motive is one thing, but if the motive is political, shouldn’t that be an issue? And you said that if the legislature determines a particular motive for crime needs additional punishment, regardless of its political character, that does not offend the first amendment.

    I’ve had years to dwell on this issue and push it about in court in various ways. In the end, I don’t think the legislature can select a particular political belief as being a worse motive for crime. I do think that a judge can decide that a person who is a “true believer” is more likely to recidivate and therefore punish more harshly.

    I think you deserve teasing for being so nonchalantly behind the precedent for hate crimes until the people they were focused on became people you saw as more akin to yourself…

  13. I mean, I agree with EV that is an overbroad interpretation of “hate crime,” but really. New Castle, NY: pop. 17,569. Someone said something dumb in its local newspaper. A national emergency! Good thing nothing more important is going on right now.

    1. From the movement conservative perspective, it’s gotta work better than mentioning anything the president or Republicans are doing or saying about the First Amendment (or just about anything else).

    2. New Castle includes Chappaqua of Hillary Clinton fame.
      Median family income is $175K and they may even have three police officers on duty at the same time (see below).

      This isn’t even virtue signaling as much as the payment of tribute in the hopes that the mob destroys someone else’s property. That’s why I consider BLM to be terrorists — they are employing terrorist tactics. I am also reminded about German Lutheran pastor Martin Niemöller’s famous poem about “In Germany, first they came for the Jews….”

      And those of us who don’t live in places like Chappaqua have a more realistic view of the world. We’re buying guns and planning to re-elect Trump — and publicly saying nothing about either.

      “An officer is available at the Police Station 24/7. Please keep in mind that police department personnel work a variety of different schedules, and there may be a delay in responding to you.”

      1. The gun stores around me are actually out of stock. You might be able to get a high end handgun ($1500+) or hunting rifle. Anything that even “looks” like it is for self defense was gone weeks ago. And even if you were able to buy a gun good luck finding ammo for it.

        A lot of these were first time gun owners. This isn’t people hoarding. I hope the Left fully understands the powder keg political dynamics they have helped construct.

        1. Are you planning to go “the full LaVoy,” Jimmy?

          All-talk, bigoted right-wingers are among my favorite Volokh Conspiracy fans and culture war casualties. What a bunch of followers this “academic” blog has carefully cultivated.

        2. Tough Guy, eh?

          Even if I thought you weren’t a coward with a keyboard, I’d not change the policies I like based on threats of terrorism.

          1. You reactionaries can read a lot into a statement of general observation, can’t you? Must be a weird paranoid world you live in.

            1. Here’s what I can read into your statement of general observation:

              You don’t know what A “reactionary” is. And your grammar sucks.

              1. Your unnecessary sentence beginning with “And” means your grammar sucks far worse.

              2. Also look up reactionary and look beyond the first definition.

              3. Fortunately, people who talk like Jimmy are almost uniformally outcasts and losers who are too cowardly and out-of-shape to actually do anything. If they ever tried to back up their words with actions, though, they would probably find themselves surprised at how many leftists are gun owners.

                1. Man I remember back in the day we used to spend every August just sitting on the porch of the GTK house surveying the land we ruled. The thought that someone would even talk like that to you was just foreign….

      2. Actually, Niemoller’s poem relates that ‘first’ they came for the communists, then the socialists and the trade unionists.

        Much like you and your ideological cohorts seek to do today.

  14. And the Quaker church of today is nothing like the traditional non-violent Quaker church of years past. They are now supporting the radical (and violent) left.

    1. Yeah, go after the Quakers, Ed.

      Good look.

    2. Matter of fact, cross a Quaker now or then and they’d knock you on your ass.

  15. Can we talk about the much more important issue here: The egregious misuse of the word “refute” in contemporary America. It does not mean to “dispute” or “question” — it means to “disprove conclusively”.

    That is all.

  16. it’s political rhetoric that strikes me as quite sharply at odds with First Amendment

    Meanwhile.

    1. If you participate in a riot, you are a rioter, not journalist.

      1. Who says these people were participating in a riot? I mean, aside from whatever creature it ios that lives inside your brain and makes things up for you to spew out?

    1. Criticizing the press endangers freedom? Wow, just wow.

      1. Only when that is left wing press. Shutting down right wing press is supporting freedom.

      2. There’s a big difference between criticizing some coverage and what Trump has done.

        Like repeatedly calling the media:

        “the enemy of the people,” “dishonest,” “corrupt,” “low life reporters,” “bad people,” “human scum” and “some of the worst human beings you’ll ever meet.”

        In response to Trump’s steady stream of verbal attacks, members of the press were regularly booed at Trump rallies, and reporters named in his tweets have been repeatedly harassed online. There also have been credible threats to news organizations, with CNN frequently targeted.

        The Trump administration has threatened the work of the American press in other ways. The Justice Department has stepped up investigations and prosecutions of journalists’ sources of classified government information, while Trump and his attorneys general have refused to rule out prosecuting reporters themselves. The Customs and Border Protection (CBP) agency has questioned journalists at border posts, searched their electronic devices, and monitored their movements in a secret database.

        That’s not “sharply at odds with the First Amendment?”

        Trump himself has called for boycotts of news organizations and changes in libel law to punish the press. His re-election campaign sued The New York Times, The Washington Post, and CNN for libel for opinions expressed by their columnists and contributors. He tried unsuccessfully to take away White House press credentials from journalists and news organizations whose questions and stories he did not like. He encouraged federal government interference in the businesses of the owners of CNN, the traditional broadcast networks, and The Washington Post.

        Doesn’t show a lot of respect for the Amendment either.

        Did you read the whole thing?

        Look, I generally agree with Eugene on these posts. Not always. I’ve found him a bit credulous on the versions he gets from some of his sources, but in general I think all the shouting down and so on is ridiculous.

        At the same time, it seems to me that he is not much interested in First Amendment issues that arise from right-wing behavior, and especially from Trump, and I think that Trump’s behavior is a greater threat than whatever the New Castle Town Board does.

        1. But the media are largely dishonest, lying, manipulative, corrupt, and full of ideologues which make for really bad reporters.

  17. So if I understand the article correctly, this article and any comments supporting Professor Volokh’s theory also constitute Hate Crimes.

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