2 Preliminary Dismissal of Deceptive Appearances
In Europe they have hate crime laws, hate speech laws, and police states. (Cf. City of Houston v. Hill, U.S. 1987, holding that “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” By this well-thought definition European countries are not free nations but police states indeed.)
In U.S. they only have hate crime laws.
What makes hate crime laws so unexceptional?
“Hate crimes are offenses that are committed because of the actual or perceived race, color, religion, national origin, or sexual orientation of another individual or group of individuals. … Various state courts found that, since the U.S. Constitution’s First Amendment protects speech and thought, even when that speech or thought is offensive, any law criminalizing thought should be rendered unconstitutional.” (Hate crimes by Kristin L. Stewart, J.D. [excerpt] in Encyclopedia of American Law, D. Schultz ed., 2002)
If a crime is found to be this or that “(name a crime) as a hate crime,” penalties are increased.
2 Preliminary Dismissal of Deceptive Appearances
Contrary to appearances, hate crime laws in the United States are probably not designed to protect the white population from black criminals. How, then, could such appearances have arisen?
First, we are told about an epidemics of hate crimes. “If you believe the news, today’s America is plagued by an epidemic of violent hate crimes” is from the presentation of the book Hate Crime Hoax: How the Left is Selling a Fake Race War (2019) by Wilfred Reilly, assistant professor of political science at Kentucky State University.
Second, we know the massive proportion of black inmates in the prison population of the States: cf. The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012) by Michelle Alexander, visiting professor at Union Theological Seminary, New York City.
Third, in Wisconsin v. Mitchell, 1993, the U.S. Supreme Court upheld a hate crime state statute. A group of black men had assaulted a white boy after watching the film Mississippi Burning. It was found their attack was racially motivated and the increased penalty of the instigator, Todd Mitchell, justified.
From (1), (2) & (3), one would swear blacks are responsible for the epidemic of hate crime. Indeed, it is hard to see how a crime epidemic, namely a hate crime epidemic, would not be reflected in the prison inmates population, that is, how the disproportionate numbers of black inmates in prison would not reflect the hate crime epidemic, especially considering the emblematic precedent of the U.S. Supreme Court on hate crime laws applies to a black defendant who challenged the constitutionality of his increased penalty.
This is a deceptive appearance. In reality hate crime laws protect minorities.
Hate crime laws trivialize crime
“This book is as timely as today’s headlines. Professor Lawrence has written a powerful, persuasive, and eloquent call for more effective action by Congress and the states to deal with these despicable crimes. Civil Rights is still the unfinished business of America. Hate crimes are uniquely destructive and divisive, because their impact extends far beyond the victim. They poison entire communities and undermine the ideals for which America stands. They deserve to be punished with the full force of the law, and Professor Lawrence’s book brings us closer to that important goal.” Senator Edward M. Kennedy on Punishing Hate: Bias Crimes under American Law (2002) by Frederick M. Lawrence.
This praise by Sen. Kennedy contains all the appalling mistakes an informed person is supposed not to make when thinking and talking about crime and the law.
“This book is as timely as today’s headlines.”
It is known, it is even common-sense, since at least Roscoe Pound (Criminal Justice in America, 1930), that to resort to designing criminal law in hysterical reaction to headlines is the worst one can think of, it is Lynch mentality smuggled into the legislative bodies and through them into the courts.
Sen. Kennedy’s is the confession he was a headline-law maker, one who made headline laws. With lawmakers like him, it is headlines which make laws. Yet no one knows what the headlines reflect (a few people believe they reflect reality). If media were neutral reporting agencies, then, given what has been said in II about New Jim Crow, media treatment of crime would reflect the makeup of prison population (because prison population is a good token for the known figure of crime), that is to say the media would devote the same share of crime news to black crime as the share of black inmates population in prisons. Is this the case?
If this is not, even if it were because the media are not racist whereas lawmakers, the police and the judiciary are, it turns out they make their headlines according to their own notions rather than to an actual state of things. If the state of the society as far as crime is concerned is institutional (colorblind) racism, i.e. a New Jim Crow, and the media correct this because they go against the stream, then admittedly their headlines are no different from political pamphlets; therefore legislators are not bound to take their headlines as guidelines, any more than they are to follow the views of any scholar, intellectual, or writer.
The same holds with the media coverage of hate crime. Sen. Kennedy wants to legislate in a “timely” fashion, following the headlines. Given what has just been said, however, he is nothing but the willing audience of a hate crime law lobby, whereas the true situation might or might not support a need for new or further legislation. Obviously, if the coverage is a hoax (Wilfred Reilly), no legislation is called for by the timely headlines. (Needless to say, the notion of timely headlines is absurd: Reread the sentence and you’ll see Sen. Kennedy actually talks of timely headlines; however there is but one timely time for news headlines.)
“These despicable crimes”
Which crimes are not despicable? Crimes that a senator is more likely to commit, like embezzlement?
“Hate crimes are uniquely destructive and divisive, because their impact extends far beyond the victim.”
That the impact of all crimes “extends far beyond the victim” is on the contrary the obvious truth, one at the foundation of the secular distinction between tort law and criminal law, and hardly, therefore, could a premise be more unsupportive of the conclusion, namely, that hate crimes are unique.
“They poison entire communities and undermine the ideals for which America stands.”
One would swear other crimes are mere trifles.
“They deserve to be punished with the full force of the law.”
Yes, like any other crime. Actually, a good axiom of jurisprudence is that crimes deserve to be punished with the full force of the law. Accordingly, since every crime is punishable by the full force of the law, one cannot make a difference between one crime and the same crime “as a hate crime.”
If such a difference were legitimate, it would actually imply a decrease in penalties for hate crimes.
Hate crimes are crimes of passion,
therefore the penalty must be decreased, not increased
Here come the love crimes.
I had intended the word as a joke. I thought: If one talks of hate crimes, there must be love crimes too, which is absurd. Then I remembered the crimes of passion (crimes passionnels): “The ‘crime of passion’ defense challenges the mens rea element by suggesting that there was no malice aforethought, and instead the crime was committed in the ‘heat of passion’.” (Wikipedia: Crime of passion)
Crimes of passion are what I would like to call the love crimes. Love is a passion. Hate is no less a passion than love –sometimes love turns to hate– and therefore, as the crime of passion defense applies to love crimes, the defense applies to hate crimes too.
Think about Todd Mitchell, the black defendant in Wisconsin v. Mitchell who “instigated an attack against a white young boy.” He had just been watching the film Mississippi Burning, which stirred the rage of oppression in his heart, to the point he could not stand it anymore. His brothers and sisters in race had been enslaved, trafficked, segregated, Jim-Crowed for centuries. Hatred was stirred in him, his spirits cried for vengeance. A young white boy walked by.
Even if Mitchell had been animated by an ideology, by the liberal ideology that cannot stress enough the evils of a system and the burden of debt currently weighing upon the white man till the end of times, even if he had been an avid reader of liberal books, still his deed would not be an ideological crime –because there is no such thing under the U.S. Constitution, which protects freedom of conscience– but a crime of passion.
(Even the minutest premeditation in coldest blood could be a crime of passion, I find, because hate is a passion, just like the cheated husband who premeditates his wife’s death could invoke the defense in my eyes, because from love to despair time may elapse but the heat of passion remains, the heat of passion is not the same thing as the heat of the moment.)
But the Supreme Court –Rehnquist Court (surely this rings a little bell)– did not see a liberal black boy under the dramatic and melodramatic influence of a Hollywood blockbuster stuffed with the most advanced techniques of emotions and mind manipulation, no, and “the Wisconsin statute…was not punishing the defendant for his or her bigoted beliefs or statements, but rather the predicted ramifications of his or her crime” (oyez.org). Mark these words: A hate crime law does not punish a defendant for his or her bigoted beliefs or statements. I have no idea what the Court, or its commentator, means by “the predicted ramifications of the crime” and as I have not read the whole decision yet I reserve my judgment, only saying it looks like a mighty innovation in the field of criminal law and I’m surprised it is not more discussed in academia and among advocates of hate crime laws, who keep saying, instead, that hate crime laws punish bigoted biases (one also talks of bias crimes).
So very true is it that hate crimes are crimes of passion that it is even positive law in the gay panic defense. A man subject to homosexual advances may react violently with assault, battery, murder attempt, sometimes the seducer’s death. The defendant can invoke gay panic defense at his trial and if the motion is accepted his act will be treated as a crime of passion. As the reader can well imagine, statutes to that effect have disappeared from about every legal system in the western world, and now the same acts are likely to be treated as hate crimes with increased rather than decreased penalties. (Likely because how could such a reaction not be the sign of strong biases?)
Hate crimes are crimes of passion
and like other crimes of passion they have no place left amidst our laws
Today crimes of passion are hardly law any longer. A man finding his wife with another man will shoot them and then kill himself, and perhaps his kids in the bargain, because he knows society will not pardon him the heat of passion. He knows only cuckolders are excused nowadays.
As one, therefore, sees crime of passion laws dwindling, one must draw the consequences as to the notion itself, which includes hate crimes. Hate crimes can have no place amidst our laws.
Hate crime laws shift the tendency of regimes from majoritarian to countermajoritarian
In aristocratic regimes, the nobility is a minority too.
If one agrees the purpose of hate crime laws is not, contrary to appearances, or not only to hold the grudge of black people against whites for a past of slavery and unequal segregation in check, then one must consider the following reasoning.
Hate crime laws are designed to protect minorities from the violent manifestation of biases. That minorities would bear a natural grudge against the majority for the latter’s entrenched position and status does not seem to ever enter the mind of advocates of bias crime laws and I have never heard one such advocate express concern for the safety of individuals in the majority due to a grudge of this kind. Yet it occurs to me that, if I belonged to a minority and the majority had privileged status in the society, I would resent the fact. In case I expressed my resentment with violent acts, that would be hate crime then, would it not? But no, we are never told of such psychological problems; one has to know the U.S. Supreme Court’s decisions to be aware that anti-white feelings can be a bias, and in some European countries you would look for the same kind of precedent as Wisconsin v. Mitchell in vain (but not because such crimes never happen).
All in all, one can safely bet that a risk of increased penalties exists above all for crimes where victims are from minorities. Therefore, if a criminal who is neither a hate criminal nor a love criminal, only an indifferent criminal who wants money, thinks –and I claim the media and politicians have inoculated this thinking in him– that he risks increased penalties if his victim belongs to a minority, then the obvious consequence is that he will avoid picking a victim among identifiable minorities and on the contrary target individuals from the majority. Hate crime laws point to the majority as self-evident victim for “passionless” criminals. Clearly, a government must have strong countermajoritarian mechanisms to be able to pass such laws – to the point that one wonders what role is left to its majoritarian mechanisms.
Hate crime laws are hate speech laws
This section is divided in two parts (a) and (b), the former being the mere quote of an earlier writing, Hate crime laws are unconstitutional (Law 20).
a/ Hate crime laws are unconstitutional view-based discrimination.
It’s time the courts declared hate crime laws unconstitutional. This is long overdue. How can hate speech be protected as the U.S. Supreme Court intends (Brandenburg v. Ohio , R.A.V. v. City of St. Paul , Snyder v. Phelps , Matal v. Tam ) when public figures known for taking positions some call hate speech must always fear being provoked to offenses, even minor, that would lead to aggravated punishment while the opponents who provoked the incidents have no such Damocles sword hanging over their heads?
Let’s take an example. If a public figure vilified by LGBT groups as a hater gets entangled in a brawl with LGBT hecklers, he may face hate crime charges while the others will face unruly behavior charges or such like (they are not known for being haters because they’re the ones who call people haters and the media follow that stance).
The “haters” (who have a constitutional right to hate speech) are at greater risk of frame-up because for them even the slightest charges can be greatly detrimental due to the increased penalties with which hate crimes are dealt with. Hate crime laws protect a minority heckler’s veto. Due to such legislation, whole classes of people are therefore deprived of their full rights to political participation for lack of equal protection under the law. This is government repression of political opponents.
b/ Hate crime laws are conceived as disguised hate speech laws.
Discretionary police and prosecution power serves to squelch speech in scores of contexts, by making pretextual use of laws against disorderly conduct, trespass, unlawful assembly, disobeying a lawful order (like orders to move or keep moving), breach of the peace, and other such low-level criminal statutes, and scholars point out the failure of courts to address the issue properly.
The issue must be of increased concern when to low-level incriminations may be added the hate crime label. Since there have been various cases of “petty larceny, as a hate crime,” one can well imagine charges such as “trespass, as a hate crime” or “disobeying a lawful order, as a hate crime.”
Often, in the usual cases, charges are dropped, and the victim of malicious policing is no more heard of. In the case of hate crimes there could be no dropping of the charges, for obvious reasons. Therefore, since police power can be used to squelch one’s speech and the courts have no sure means to second-guess the discretionary use of police power (filming police on public space is a hazy legal issue: don’t you fancy it be a well-established right), I believe advocates of hate crime laws intend to take advantage of the situation to have hate crime laws serve as hate speech laws. I believe it for the simple reason that if hate speech laws were not unconstitutional these are the laws they would demand. We have seen it in Europe: the same rhetoric used in the U.S. in support of hate crime laws is used in Europe to advocate hate speech laws.
So long as hate crime laws exist, the U.S. is at risk of becoming –if not being already, through the judicially undetected, pretextual use of executive discretion– a police state like current European Old-World regimes.
PDF (includes the main entry and the four ‘comments’ below that continue it) (2022):
It is my understanding that many people, perhaps most or even all people, in America and the world at large have the notion that pornography is legal in the United States. (Pornography today is above all filmed and/or photographed pornography with real performers.) The opinion may have arisen quite naturally from a host of conspicuous facts, such as that performers in those productions are invited on TV and radio shows, have books written under their names, and engage in various other activities derived from their pornography performer status.
Yet, as far as filmed or photographed pornography is concerned, it is illegal in all states except Nevada, to the best of my understanding of American law. Indeed, this seems to be the necessary corollary of two sets of positive law.
First, prostitution is illegal in all states except Nevada.
Second, the U.S. Supreme Court has ruled that child pornography is not protected by the First Amendment because its content, namely “sexual exploitation of children,” is illegal: New York v. Ferber, 1982.
The Court talks of a “compelling interest” in preventing the sexual exploitation of children. Clearly all that is a crime is so defined –a crime– by law because there is a compelling interest in preventing it. Therefore, filmed pornography cannot be a constitutionally protected right where its content, namely prostitution, is illegal, that is, in all states except Nevada. As a consequence, any statute dealing with obscenity is valid against filmed pornography even without looking for the outcome of a pruriency test adopted by the U.S. Supreme Court when dealing with obscene contents (so-called Miller test). This kind of test, when applicable, is limited to writings, drawings, computer-generated imagery, even the most realistic, and such like.
I believe all states have the statutes. Even if they might be reluctant to enforce them under the notion that they should apply some kind of test and are not quite sure of the result, I deem as sufficiently demonstrated that no test is to apply with filmed pornography: By virtue of Ferber, filmed pornography is a prima facie breach of the law in all states where prostitution is illegal, because it is nothing but filmed prostitution.
Even if there existed no such local or state laws at all, I wonder what prevents federal authorities from prosecuting filmed pornography under the federal law on obscenity, for a cause of action seems obvious anywhere pornography is made of illegal prostitution. In other words, the authorities do not have to prove that filmed pornography is obscene even when they enforce an obscenity statute.
All this may be rather intricate but I believe it is because judges and legislators have missed one fundamental principle, which may be encapsulated in few words:
PACTA TURPIA CANNOT BE SPEECH.
Acknowledgement of the principle would have prevented muddling of the discussion by those who make out pacta turpia (plural of pactum turpe or meretricious contract) as works of imagination and art. While the jurisprudence on obscenity has focused on the words of poets or would-be poets, it consistently ignored that the bulk of obscene material has become filmed prostitution with real people and that the issue therefore is quite remote from the potentially damaging effects of imagination.
Is the reasoning applicable to sex tapes, two or more people who would agree to film a sexual intercourse and distribute the video without compensation, for the fun of it? At least there is no pactum, no covenant, no contract in that case? There would be no financial covenant but a covenant still. Be that as it may, the authorities have ample evidence, from the buzz the people in the industry make and to which I already alluded, that they are sex workers, prostitutes, and they can act accordingly, against the performers and above all against their pimps. That would be relevant given the fact with which I began this short essay, namely that most people think staged pornography is legal, although the average person may well be cognizant of the fact that prostitution is not legal while realizing at the same time that both are the same.