Hate crime bill threatens to criminalize thoughts

May 11, 3:36 PMCivil Liberties ExaminerJ.D. Tuccille

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On April 29, the United States House of Representatives passed a bill that criminalizes certain forbidden thoughts. Specifically, the Local Law Enforcement Hate Crimes Prevention Act makes a federal crime of committing an act of violence if the act is motivated by dislike of certain protected groups. Not surprisingly, many civil libertarians are troubled by a law that reaches beyond what people do to punish what they're thinking when they do it.

The law as passed by the House promises ten years in prison to anybody  who "willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person because of the actual or perceived" membership of the victim in a protected class. Protected people include those targeted because of their race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.

Prosecution for committing acts of violence motivated by hate would be in addition to prosecutions for the violent acts themselves.

In his syndicated column, prominent free speech advocate Nat Hentoff says legislators who voted for the measure "should have been tested on their knowledge of the First Amendment, equal protection of the laws (14th Amendment), and the prohibition of double jeopardy (no American can be prosecuted twice for the same crime or offense). If they had been, they would have known that this proposal, now headed for a Senate vote, violates all these constitutional provisions."

It's hard to quibble with Hentoff. The bill clearly penalizes crimes motivated by dislike of some people more than crimes motivated by dislike of other people. How can that not violate equal protection guarantees?

And the sleight of hand that allows federal prosecution of the thoughts behind crimes that are already being prosecuted at the state level could escape protections against double jeopardy only by legal alchemy.

Prosecuting thoughts at all is clearly a violation of freedom of conscience -- unless we're going to protect (and define) only nice thoughts.

Nevertheless, the bill has passed the House and is likely to pass in the Senate. With White House support, it's essentially guaranteed to become law.

Which leaves the courts as the last bastion against legislation that would penalize thoughts.

Below, Nat Hentoff speaks on the threat posed by hate crime laws.

email J.D.: civilliberties (at) tuccille.com