Recently, after most of the country celebrated Thanksgiving, and many people set off in search of sales on what has become known as “Black Friday,” there was a cause for alarm in suburban New Jersey. Five churches in Union and Morris County were vandalized in the quiet wake of the holiday. The churches were struck by a vandal who broke windows and doors of the religious institutions.
There was a common association spotted. All of the churches were labeled “black churches” and were primarily home to African-American worshippers and clergy. Church officials, police and government officials were quick to label the vandalism a sure sign of racism, and the work of a white supremacist. The case became high priority in order to catch and prosecute the perpetrator of this “hate crime.”
Police asked for assistance, and they soon received a tip: A strong tip and they made an arrest. That’s when something funny happened. The evidence showed that the work was not of a white bigot, but of a 45-year-old African-American man from Morristown. His name is Zuri Towns and security footage allegedly shows him tossing a rock at the Morristown Church of Christ, one of the churches hit. As it turned out Towns attended at least one of the churches as a child and he expressed anger at the church, calling Christianity “the Devil.” But Towns is now charged with just vandalism, and not vandalism motivated by racism. Because Towns is black and the churches he targeted were black, the act is no longer labeled a hate crime. It may be the same action that, if he were white, or if he targeted a shul rather than a church, would be enhanced by an aggravating factor, resulting in enhanced punishment, but because he is a black man targeting black churches, he is facing charges relating to simple vandalism.
Freedom of speech and expression in America is guaranteed by the First Amendment of the Constitution. It is specifically addressed in the clause stating: Congress shall make no law…abridging the freedom of speech.” Through subsequent legislation and judicial precedents, this guarantee has been extended to reach all government authority and any agency under the reach of the government.
This right is expansive and intended to be that way. It also is a right that contrasts with the understanding of the laws of “free” expression in many other nations—including Canada and Western Europe as well as the regulations governing the rights of expression on many college campuses in America.
Many legislatures have in recent decades restricted free speech to exclude speech that has been labeled “hate speech,” that is speech used to denigrate or label a group or individual because of his or her ethnic, religious identity or beliefs. Jewish advocacy groups have often been among those that have been in the forefront in trying to legislate and punish hate speech, and have, at the margins, achieved some success even within the confines of the First Amendment.
While American courts have ruled that hate speech cannot be outlawed outright, they have found that where “hate” is a motivating factor in a criminal act, a Defendant can have that count as an aggravating count, which can add weight, and years to a criminal sentence or fine.
Of course, speech like any other Constitutional right is not absolute. Courts and legislatures have always set limits. For expression, one cannot be inciting imminent violence or displaying pornographic materials without any redeeming artistic merit, for example.
From the time, the trend towards limiting, or perhaps outlawing “hate speech” began in earnest two decades ago, it appeared that the trend was heading in that direction. But then Courts began to realize there were real problems with legislating against hate.
Primarily, laws regarding the content of Constitutional rights are by definition suspect. That makes sense because once you have someone weighing the merit of expression based upon the message, it puts the arbiter in the position of a censor. That by its nature creates a tension with the First Amendment guarantee.
After that, and perhaps more fundamentally, courts soon realized there was an additional challenge, that is defining what is “hate?” exactly, and what is the motivation of action by hate?
The first time courts had to consider this issue, was after some localities, including locally in New York City and New Jersey added penalties for crimes against vulnerable suspect classes of people motivated by hate. Jews have been included as one such vulnerable class.
This created the uncomfortable scenario where the perpetrator of a crime against someone who is a minority, could get more excessive punishment than the perpetrator of the same crime targeting a white, Christian man. Judges sensed that this calculus failed the constitutional requirements of due process and equal protection under the laws.
The way that judge started finessing this issue was by starting to require, about a decade ago, in prosecution involving “hate crimes,” proof that not only a crime was motivated by hate, or even substantially motivated by hate—but exclusively motivated by hate in order for it to pass First Amendment muster.
For example, a New York appellate court explained in a “road rage” case which resulted in exacerbated penalties that later got overturned, that a determination of a “hate crime” cannot be made simply when a racial epithet is used in a road-rage incident, but only when the road-rage incident itself is initiated by the defendant based upon the race of the victim. Obviously, this standard, the necessity to prove that a defendant hates because of who the victim is, and not what the victim did, makes prosecution of hate crimes that much more difficult, and that is by design.
But the danger of hate-speech legislation is actually more acute than the judges may have instinctively inferred. This trend has recently been noted by an unusual loose alliance of the ACLU, libertarians, college conservatives and judges. It has become clear that “hate codes” are used not only to punish racists, sexists, homophobes and anti-Semites, but often those whose views are in dissent to the majority. While in America it is often those who are generally Conservative who get punished as “haters,” a study this year published in the Michigan State University International Law law review revealed that hate-speech codes as legislated in The European Convention of Human Rights often targets left-wing groups in dissent.
Whether left-wing or right-wing the effect of Hate Speech codes is the same. By design, they put arbiters on the spot in divining the intent of the speaker based upon the content of speech. That by itself should set off alarm bells, especially for those minorities who likely have a different experience in society, as well as differing beliefs.
Generally speaking, when a Constitutional guarantee is in tension with a legal requirement or prohibition, the burden is on the legislating body to prove a compelling need for the burden to the public. Additionally, the governing authority must prove that enforcement is the least burdensome method of effectuating the compelling need. In Constitutional law terms, the analysis is referred to as “strict scrutiny.”
When courts and legislatures are punishing hate speech it will be difficult to satisfy strict scrutiny no matter the meritorious motivations of the government in protecting vulnerable populations. The problem ultimately is that sometimes the goose is the gander. Sometimes it is a vulnerable population that will be attempting to make the point, but the majority in power or thought will use the code of hate speech to condemn and ultimately suppress the dissenting opinion.
This has been happening as a matter of course in Europe, Canada and on American college campuses. Courts have recognized that this approach is an anathema to the First Amendment. As Jews, and a vulnerable minority, we do not want a well-intentioned policy to silence us by law. The First Amendment has worked well as policy in the United States for more than 200 years. Weakening it would be a perilous and ultimately a foolish endeavor.
By Stephen Loeb
Stephen Loeb is an attorney licensed in New Jersey and New York. He can be reached at [email protected]
