Moral Considerations on Hate Crimes, Free Speech, and Threatening Speech

Some people reject the concept of hate crimes. They argue that violence or intimidation or harassment or rape or other crimes are punishable offensives irrespective of the motivations of the person carrying them out. They think that if when punishing someone for one of these crimes we also punish them for their hatred we are now crossing a dangerous line into punishing people for their thoughts and feelings. They are worried we would essentially be making Thought Crime a punishable offense.

Now I agree that punishing Thought Crimes would be a nightmarish concept. People should not be penalized for what their thoughts or opinions.

But hate crimes are not thought crimes. I am not a lawyer or legal expert. So I am not, in what follows, going to even make a pass at trying to explain any specific legal terminology or classifications or penalties. What I want to do is make the moral case in principle for hate crime laws, irrespective of how they have actually been developed. Particular laws may be framed in morally necessary, minimally morally acceptable, or morally unacceptable ways. I want to lay out, from a moral standpoint, the parameters I think they necessarily should follow and not follow. Then I want to look at a particular case and ask if it fits.

First: Why is a Hate Crime not a Thought Crime?

First of all, thought is important to crime. While sometimes gross negligence or culpable forms of ignorance are unforgivably harmful and worth criminally punishing, merely accidentally or unwittingly harming someone is quite different than intentionally doing so. And premeditated harmful actions are even worse than ones chosen in the heat of an intense moment. The thought itself, in isolation, is not what is being punished. The thought however is a germane part of a complex event that includes an action. It is an insufficient but (usually) necessary condition for a crime.

But the next question the opponent of hate crime legislation might ask is, “why should the hatred of a group of people specifically be the kind of thought that gets punished and not just the intention to commit the crime? Sure, we can judge someone for the thought of wanting to inflict criminal harm that contributes to their actual attempt to inflict criminal harm, but why is their hatred itself an issue? Presumably someone could be horrifyingly indifferent and intend to inflict criminal harm and the motive to inflict criminal harm combined with the attempt to do so is all that matters. Why should hatred be punished more than, say, callous disregard?” [ON EDIT: I changed the word motivated to intended to account for a legal distinction between the words in terms of my true meaning in this paragraph. Thanks to Helen Dale for alerting me of the difference.]

To that, I answer that it should not really the hatred of the perpetrator that is at stake here, even though we call them “hate crimes”. Morally you should be allowed to hate all you want without the law intervening, even if morally you also should not hate in the first place the majority of cases. What is really at stake in hate crimes, morally, is the fact that criminals who choose their victims based to one extent or another on their group membership aims at and/or has the effect of significantly harming more people than merely the direct victim(s). When the KKK threateningly burns crosses on a black family’s lawn or lynches a particular black person, they are effectively terrorizing black people everywhere, and especially all black people within reach of the KKK. That’s not to say that all blacks are terrified by the actions but that it’s, objectively, a terrorizing kind of act. Morally speaking, hate crimes are really a subspecies of the broader category of crime known as terrorism.

This is why it is so ironic that most people who reject the very existence of hate crimes are people on the political right and are the most likely people to make arguments that terrorism be treated as so especially heinous a crime that it be considered an act of war or cause for punishment by torture or death without any due process rights. The 9/11 hijackers did not just commit offenses against the people they killed on the airplanes, in the Pentagon, or the World Trade Center. They terrorized millions, perhaps even billions, of people. Were they alive that should surely be taken into consideration at a trial assessing what was wrong with what they did.

Singling out a person because they belong to a certain group sends the message to others of that group that people in the culture hate them enough to attack them on the basis of their belonging to that group. That threatens their ability to feel safe in society. This is why deliberate perpetrators of hate crimes and terrorism do what they do. They want to send that message. But even if they have no grandiose designs of reaching beyond the one person they’re “teaching a lesson to” or “ridding the world of” or “putting in their place”, etc., they can have that effect if a reasonable case can be shown that bias based on their perception of the other’s group identification played a role in their reasoning. That effectively sends the signal to members of that group that the bias out there against them is so strong that it just might have violent realizations and that makes them, to one degree or another, also victims of that crime to take into account.

Of course, hate crime legislation should never make expression of mere opinions into a crime. But also not all statements are expressions of opinions. Some are threats and free speech, neither morally nor legally, should not cover threats that name particular individuals as targets for violence nor name particular identity-groups as targets for violence. I don’t think that a threat should be “credible” (in the lay sense of likely to be followed up) for it to be considered at minimum immoral and bannable by all responsible private spaces, including websites. And I think that severe, direct threats of rape and murder should be considered crimes in themselves, whether the person has any intention to follow through. And antagonizingly saying, “I’m just suggesting we make a law that Fannie Feminist be murdered, but not saying anyone should break the law in the meantime” (as was essentially done to an actual feminist, not named Fannie Feminist) should be seen for what it is a transparent threat and punished legally. It is no different than a mafioso telling someone, “That’s a nice family you got there, it would be a shame were anything to happen to them.” This sort of speech does not constitute the expression of ideas. Not all speech acts are declarative statements about the world. Some perform actions inherently. These kinds of statements perform the actions of trying to threaten and intimidate and force compliance.

We should cherish the principle of free speech because it enables honest venting of even unpopular ideas and freedom of conscience. Even in places where people should have legal rights to restrain others’ speech, we should be as prima facie accommodating of people’s moral rights to expressions of sincere disagreement as possible consistent with other moral goods. In other words, we should never be capriciously censorious, morally but be able to demonstrate a competing moral or intellectual good of equal or greater value is served by our restraints we’re putting on speech in a given context.

When we curb free speech it must only be for greater overall value to free speech, others’ basic well-being, or the allowance of comparably good activities to take place unencumbered. It is fine morally to sometimes restrict discussions to germane topics for a given forum, for example. It is fine morally to ask a friend not to engage in private debates with you about a topic you don’t want to talk about or to lay down a rule at your house that for Thanksgiving no one in the family is to talk about politics, etc. It is fine to create “safe spaces” where marginalized people have room to express their experiences and work out their ideas without the people who make their lives hell in numerous areas of life arguing with them. It is fine to have clubs or forums devoted to people with a shared philosophy going deeper into other issues based on their shared beliefs and not having to always go back to square one because they’re in mixed company that wants to always argue about basics. An academic discussion can be set to focus on certain topics to the exclusion of others for the sake or order. A business may limit discussion of topics demonstratably in conflict with orderly business. Government agents may be restrained in expressing religious opinions (for or against religion) in order to avoid the appearance of violation of the separation of church and state. Government protests may be limited to contexts that do not materially disrupt government functioning. Etc., etc.

Morally, I think, people should also engage in debates with those who disagree in order to grow as people and as thinkers and to have more truth and to live better lives according to a better understanding of the world. I think they should read things that challenge their views and sometimes have civil arguments with those who disagree. That’s vital. Complementary to that, it’s valuable to talk to those we agree with on basics so we can discover and delve into new disagreements with those we share foundations with, disagreements we couldn’t even get to if we were always at square one. And complementary to the goods of growing as a person intellectually, are the goods of connecting to others socially and emotionally in other ways that sometimes involve tabling intellectual disagreements so that they don’t overwhelm all our social and emotional interactions with some people in our lives who we could otherwise more richly connect with.

We must have a prima facie right to express ideas that are either genuinely morally offensive or mistakenly taken to be morally offensive. And we have the moral right to express moral offense without that being confused for censorship either. Offense is not just a feeling, it’s a moral feeling. We can be right or wrong about whether an idea or action is rightfully worth getting angry over or not. We should neither silence others because we perceive them to be offensive alone and neither should we dismiss claims of moral offense as censorious. A charge of moral offensiveness is a claim to be vigorously defended or refuted with moral arguments and should be freely debated out without moderators (or, much worse, the law) taking sides except in cases where the uncivil behaviors of participants threaten to dehumanize and marginalize participants in the dispute. So long as the ideas are where the focus stays, people should not be bullied into silence just because others (possibly rightly) want to argue they’re offensive.

And, as I have vigorously argued elsewhere, civility (properly understood) is usually vital to maximizing free speech because it frees up everyone to focus on arguments and not get distracted denigrating others. So not only do I think morally we should usually be civil out of respect for others’ humanity and right of conscience and right not to be verbally assaulted or harassed, but I think we have moral obligations to usually be civil out of a moral obligation related to truthfulness.

So where does this leave us? Statements which are effectively threats are immoral. Of course something can have the form of the threat but be demonstrably a joke rather than an actual threat. But if the intention is to make the target feel intimidated and unwelcome, then it is immoral. If the threat can be assessed to have the likely out come of planting the thought of being murdered or raped or otherwise violated in heinous ways into some targeted person or group’s mind and to affect their mental well being, then I would go so far as to make the threat legally actionable, whether it is made online or in person. A joking threat has to be the kind of joke you could reasonably imagine the target laughing along with.

Any idea worth expressing as a candidate for truth can be expressed without making another human being feel targeted for violence. Violent rhetoric is antithetical to freedom of speech. It aims to silence. Genuine commitment to free speech involves both moral and legal kinds of commitment to ensuring that everyone, regardless of who they are, feels safe to express their conscience without assaults maliciously aimed at their physical or mental well being over differences of opinions.

Finally, there are difficult cases that need to be clarified. The Bible has passages that talk about stoning gays to death. It seems unreasonable to ban the Bible as containing formal threats to gays. I think people can advocate for the death penalty or for engaging in a war without being interpreted as making violent threats. This is why I specified that named targets or group targets are the kinds of statements where threats should be themselves actionable–Fannie Feminist or feminists in general or blacks in general or trans people in general, etc. Then there is the tricky case of political figures. They are different than private people. Arguments that someone (the US or rebels or whomever) should assassinate some particular leader seem impersonal and fair game for talking about murderous tyrants. But does that mean that, for consistency’s sake, we should tolerate someone’s right to say, “The US President is responsible for too many deaths; he doesn’t deserve to live”?

An extensive list of links to posts of my views on the ethics and practice of civility can be found here. For more arguments on key issues from this post see below:

My Philosophy on What the Best Freethinking and Free Speech Really Entail

On the Ethics of Teasing and Mocking People, in Groups, in Friendships, and in Debates and Satire

No, Not Everyone Has A Moral Right To Feel Offended By Just Any Satire or Criticism

Moral Offense Is Not Morally Neutral

The Ethics of Challenging Each Other’s Identities

We Need Both Safe Spaces and Debate Spaces

The Camels With Hammers Civility Pledge

About Daniel Fincke

Dr. Daniel Fincke  has his PhD in philosophy from Fordham University and spent 11 years teaching in college classrooms. He wrote his dissertation on Ethics and the philosophy of Friedrich Nietzsche. On Camels With Hammers, the careful philosophy blog he writes for a popular audience, Dan argues for atheism and develops a humanistic ethical theory he calls “Empowerment Ethics”. Dan also teaches affordable, non-matriculated, video-conferencing philosophy classes on ethics, Nietzsche, historical philosophy, and philosophy for atheists that anyone around the world can sign up for. (You can learn more about Dan’s online classes here.) Dan is an APPA  (American Philosophical Practitioners Association) certified philosophical counselor who offers philosophical advice services to help people work through the philosophical aspects of their practical problems or to work out their views on philosophical issues. (You can read examples of Dan’s advice here.) Through his blogging, his online teaching, and his philosophical advice services each, Dan specializes in helping people who have recently left a religious tradition work out their constructive answers to questions of ethics, metaphysics, the meaning of life, etc. as part of their process of radical worldview change.

  • CBrachyrhynchos

    I think many of the usual responses to hate crime laws don’t address what those laws actually do. Generally what these laws provide for is:

    1. elevation of jurisdiction where there’s reasonable cause to believe that local or state authorities are biased in investigation and/or prosecution of crimes.

    2. elevation of sentence where there’s reasonable cause to believe that the crime was, to some degree premeditated in choice of victim.

    We generally don’t object to issues of premeditation and intent when considered to determine degrees of homicide for example. Hate crime laws recognize that Nazi vandalism in a Jewish cemetery is likely premeditated, while scrawling obscenities on a bathroom stall is likely opportunistic.

  • John Kruger

    I am by no means a legal expert, but in the cases of hate crime legislation I have looked at most states use hate crime laws as guidelines for sentencing, not as charges to be filed against a person. So, you have to actually break a law and be charged, and then once guilt is established the sentence can be expanded based on evidence of hate crime motivations. This operates a lot like someone being charged with murder, then having that murder be classified as premeditated or accidental for the purposes of sentencing. In this way the actual thoughts are not prosecuted, the danger and affront to society is just being addressed in sentencing.

    • Mormon Atheist

      Yes don’t you think that that is a problem though? I think your comparison to premeditated murder or accidental is not exactly right. The reason is that no matter what the motivation if it’s premeditated then it should punished based on being premeditated not on the motivation. By adding on time to the sentence simply because his/her motivation is deemed hateful is ridiculous. It puts a greater value on someone’s life than another’s based solely on the group to which they belong.

    • John Kruger

      Well, personally I think punishment is only valuable in its deterrence or as a consequence of removing a dangerous person from a position of harming society. Obviously if we were to just let someone go who had a motive of killing all mixed racial couples it would cause a much greater threat than than failing to remove a person from society who just happened to accidentally manage their car poorly and kill a mixed race couple. Keep in mind it is not the hatefulness that is justifying extra measures, it is the actual danger to society that person is presenting, and as Dan mentioned, hate crimes are affecting large groups of people as terrorist acts.

      I find the legal system generally uses a decent method, in that there are no ideas that can be punished for consideration and there are still consequences imposed on actions that harm society. Someone can think about murder and plan it out all the live long day, but if they never actually do anything there is no danger to society and no reason to incarcerate them. The system reflects this quite well, I think.

  • smrnda

    I thought this was something that people fail to appreciate :

    “When the KKK threateningly burns crosses on a black family’s lawn or
    lynches a particular black person, they are effectively terrorizing
    black people everywhere,”

    Most people I know who roll their eyes over the notion of ‘hate crimes’ are not members of minority groups likely to be targeted. The whole idea of a burning cross or a swastika is that these are symbols of hate used by violent organizations that explicitly target certain groups of people. Writing the word “F*ck” is simply vandalism unattached to any particular name or group, but writing “KKK” or a swastika is an explicit threat of violence.

    I know you only can only write about so much per post, but I’ve often find certain people defending the sexual harassment of women or GLBT persons in public as ‘free speech.’ To me, advances and comments which should be considered threatening and unwelcome seem a bit hard to defend (also since it isn’t like there’s anything of substance being discussed, it’s just something said to make a person uncomfortable for that reason alone) but what are your thoughts on that?

    • Hanan

      Yes, I am one of those people that would roll ones eyes. I am also part of that minority that has swastikas painting on the graves of family and synagogues, but yet, I do not see that as a legitimate reason to put one sort of crime on a pedestal above others. Why is one sort of hate above another hate. Who gets to decide which is more harmful? The problem in this philosophy is that for some reason, a crime against a “type” of minority is categorically worse that someone that is not part of that minority. True justice would be blind to that sort of consideration and send a message that a ruthless murder or even any harassment is morally wrong no matter to who it is aimed at. A member of a minority should not be privileged to garner extra consideration when he is wronged. That is not justice.

    • 3lemenope

      Why is one sort of hate above another hate. Who gets to decide which is more harmful?

      Well, for one thing, there are more victims. Second, the nature of how the victim of the actual act is chosen is quite different; if a person as a gripe with another person, no matter what end transpires we can be confident that the consequences were due to the idiosyncrasies of that relationship. With a hate crime, the selection of the victim is by type, so anyone who matches those features was a potential victim of the act but-for not being in the wrong place at the wrong time.

      And while some victims do shrug off their status, it doesn’t really give them the right to do so for others; I know not a few Jews who are not as nonchalant about swastikas on synagogues as you are, as they interpret it not just as vandalism but also an attack on their community-belonging.

    • Hanan

      >Second, the nature of how the victim of the actual act is chosen is quite different;

      Of course it is different. So? A loan shark coming to kill someone not paying his money back also chooses differently. A home invasion robber ready to murder also chooses different. Not all victims were there at the wrong place at the wrong time. There is no case to be made that the victim of a “hate crime” is more vile than a victim of a rape/murder…..under the law. You are conflated things because you think one is morally worse, therefore, law should also take into consideration personal motivation into how it dispenses justice. That is absurd. Also, it brings up the nasty subjectivity of how the law should define “hate”

    • R Vogel

      Honestly exploring this issue, please do not take offense:
      So if I rob people because they live in a certain neighborhood, or are in a certain economic class, and they feel intimidated, is it a hate crime, in addition to burglary?
      Son of Sam targeted certain people and terrorized an entire city, was that a hate crime n addition to murder?
      I am a bakery and I refuse to make a cake for a gay wedding citing religious reasons, is that a hate crime in addition to discrimination?

      I am not evading, and it is tempting to use the ‘I know it when I see it’ definition, and cases such a cross burning offer a fairly obvious example, but how do we codify it to avoid the real risks of abuse? And how do we avoid turning innocent until proven guilty on its head by assigning ‘hate crime’ to certain classes of crimes and essentially making the accused prove otherwise?

    • smrnda

      Please, spare me talk of minority ‘privileges.’

      The other issue in a hate crime is that a hate crime is not a crime targeted against an individual, but a crime meant as a further threat of violence against a specific group of people. People have been prosecuted for hate crimes against members of the majority – in the US Christians are the majority, and I do believe that some number of hate crimes against Christians have been recorded. The issue with a hate crime is that it’s a statement of intent to commit further crimes.

      Now, let’s say a person commits a murder against a totally random person, but somehow leaves evidence (a note or such) stating that he will kill again. I’d imagine that, though the person is not guilty of a hate crime, the fact that the murderer made clear his intention of killing again can and should lead to a heavier punishment. It’s just another way in which motive, intent, and repercussions are weighed in viewing a crime. Hate crimes aren’t the only ones that seem to get harder punishment.

    • Hanan

      You’re right. Minority has nothing to do with it. It can be any group. Point accepted.

      Nonetheless, the rest of what you write is just repeating what others have said without making a defensible case as to why “hate” should be something law recognizes. 3lemonope tried to argue that it is the “nature” of how the victims are chosen. So what? All victims are chosen for any number of reasons and none should be given any sort of pedestal over the other. That doesn’t mean MORALLY all actions are alike. Someone spraying “Eat broccoli” is not morally equivalent to “Nazis were right.” But the law should be blind to any emotion that possesses the perpetrator.

      For your example, yes, the punishment may be more severe, but the motivation is not psychological/emotion behind it, it is action. He is going to come kill again.

  • MichaelNewsham

    As a Canadian, I’m a little more worried about hate speech. In Canada, it has been used to silence Holocaust deniers, critics of Islam, and Christians denouncing homosexuality. Most of the people and opinions were odious,but that’s the point. I tend to be an admirer of the American Constitution’s insistence on the priority of free speech.

  • Ricker

    I think one bad thing about the concept of hate crimes is the difficulty in establishing intent sometimes.
    First off, I believe that a majority of crimes that would be labeled minority hate crimes are really general hate crimes. Murder, for instance, is usually committed because you hate a person, not necessarily because you hate a minority group. I could hate my white male neighbor because he is loud and obnoxious, but that is on a different moral plane than if I hated my black neighbor simply because he was black.
    Which leads into my main point: if I was to murder and rob a black guy it would automatically be viewed as a minority hate crime (because I’m white). My motive could be completely different: the guy was very well dressed getting out of a Ferrari so I murdered/robbed him because he was rich and his race was not a factor, but facts like that are glossed over in favor of the much more polarizing narrative of “white guy kills black guy because he’s racist.”
    You see similar things when people critize Obama. Now I absolutely don’t deny there are people who hate Obama because he’s black and will never support anything he does. But there are an overwhelming majority of people (I hope) who legitimately don’t agree with his positions (legitimately meaning based on ideological differences and not racial differences). But too often that fact is ignored in favor of playing off racial tension.

    • smrnda

      Are you absolutely 100% sure of that? Because I’ve followed court cases where white people murdered minorities and no hate crime was ever brought up. Please head to your local public defenders office and do some research. Check out sentencing and conviction rates when white people kill BLack people too, might tel you something.

      On Obama, given how disconnected from reality much of the criticism directed at him has been, I can’t imagine it comes from well-thought out ideological differences, and a great deal of disagreement over policy is really just interpreting any sort of move towards fairness as ‘taking money from white people and giving it to minorities.’ Recall Santorum actually pretended he said ‘blah’ people, and nobody called him out on that one at least among Republicans. Reagan invented the totally ridiculous ‘welfare queen’ stereotype that was about as racist as it gets and based on nothing factual in the least, but which has been used to portray public aid of all kinds as money going to unworthy non-white people. The entire anti-welfare state position emerged simply by making people think of the typical welfare recipient as Black.

    • Ricker

      I was not saying that too many crimes are mislabeled as hate-crimes, I was merely speaking from a hypothetical vantage point. I have seen the occasional crime in a rural area that is immediately labeled a hate crime by Sharpton or his ilk. While they may ultimately be right, I simply object to any immediate labeling of white-on-minority crime as a hate crime, however rare this happens.
      And you are quite correct about the different incarceration rates. Courts statistically speaking tend to grant lighter sentences for whites than black, and that’s wrong. But that wasn’t really something I mentioned in my post.
      As far as disagreeing with Obama, I didn’t deny there are people who hate him simply because he’s black. I would suppose that most of the “birther” crowd would fit that description. However, there are people who disagree with him for other reasons than his race. Now I did say “overwhelming majority” which is probably not true, but I wasn’t adressing the validity of the reasons people held for disagreeing with him. I was making a simple categorization: People who disagreed because they were racist, and everyone else who disagreed. The latter group included people with well-thought out arguments as well as people who were completely uninformed and ignorant, but not racist (I would hopefully include Ted Cruz, Bachmann, Santorum in this list of non-racist critics embracing ignorance).

    • R Vogel

      I disagreed with virtually everything George W. Bush did in office – however I never questioned his religion, citizenship, general moral character nor assigned nefarious anti-American motivations to everything he did and said. I just thought he was a moron. People not agreeing with President Obama’s policies are fine, but the outright character assassination he engenders points to something deeper, IMO

      Murder, for instance, is usually committed because you hate a person, not necessarily because you hate a minority group.

      This is highly dependent on time, place, and manner right? I would dare say a large percentage of the murders of black people at the hands of white people in the Jim Crow South were probably racially motivated. In your scenario it is highly unlikely that you would be charged with a hate crime unless they could establish intent, such as a pattern of robbing wealthy black people, or membership to some racist organization. Change the crime to burning a cross on someone’s front lawn – should that only be prosecuted as trespassing and arson? Or is something larger at work here? Do we really need to prove intent, or does the burden shift to the perpetrator to prove that was NOT his intent? (Interestingly I think I just countered my own objection above!)

  • R Vogel

    Dan, I have always been an bit skeptical about ‘hate crimes’ although I have acknowledge that there is something fundamentally different about them, but you have made a pretty convincing case here. The problem is how does one prove that a particular crime was conducted with the intent of terrorizing a group? The burning cross is an obvious example. How do we separate that from the knuckle-head teenage vandal who spray paints a swastika simple because he is a knuckle-head? Should it be tied to membership in a particular hate organization? How do we avoid going to far and making these thought crimes? Aren’t intimidation and making terroristic threats already classified as crime? How is a ‘hate crime’ different?

    • http://camelswithhammers.com/ Dan Fincke Camels With Hammers

      I think that sometimes you can assess it in terms of intents but other times in terms of simple effects. The hateful things you target at a whole group with your crime make them victims of your crime too in an extended sense, irrespective of your motivation. That teenager’s graffiti swastika threatens the whole Jewish community irrespective of his or her intentions and should be punished accordingly.

    • R Vogel

      Thanks for the response. Isn’t intent generally an important consideration when punishing a rime? If my actions results in someone’s death my intent becomes an important issue to determine the severity of the penalty. But in this case the intent doesn’t matter? My fear is this introduces a lot of ambiguity into what is considered a hate crime. As long as some group can allege that they were intimidated by the crime, without any appeal to the intent of the perpetrator, we can then tag an extra ‘hate crime’ label on it? Again, I agree with you that certain crimes do rise above the level of the crime itself. I am not sure using ‘hate crime’ as an add-on it the best way to address it though. Great thought-provoking post, though. Thanks

  • stanz2reason

    Dan… I’m not sure I buy what you’re suggesting here. You start out by saying you’re making a moral argument rather than a legal one, yet something being labeled a ‘hate crime’ carries with it legal weight that’s impossible to get rid of. (and for the record I’m not a lawyer either) I agree that burning a cross on the lawn of a black person is an act that is aimed at both the individual and the race as a whole. Were they to burn it on their own property, or wear white sheets over their heads, or march in a parade or demonstration, or engage in any other form of ‘hate speech’, the same ‘aimed at the race as a whole’ still applies in categorizing the particular act, yet these aren’t crimes.

    I feel it’s important to note that the speech element of ‘hate crimes’ is distinct from the more specific act in question and that while utterly dickish, in my opinion, does not add an additional element of criminality to the crime. I’ll grant that in terms of speech, there is a line, however blurry, between protected speech and a threat. Ignoring the difficulties of proving such a distinction, when someone has engaged in an act of violence against you, it seems fairly clear that they’ve already committed a threat, making attempts to label the act a ‘hate crime’ pointlessly redundant.

    I don’t have an issue with intent being taken into consideration when judging a crime. (ie. involuntary manslaughter vs. murder 1). We give more weight to a crime that was pre-mediated. Fine. But that’s not what you’re asking with a ‘hate crime’. You’re asking to set a categorical distinction between one instance of pre-mediation over another. Were a man to premeditate the murder of his wife, does it matter if he was motivated by greed (say a wifes life insurance) vs. jealousy (say a wife suspected of infidelity)? Perhaps it does in legal circles in a ways I’m not aware, maybe arguing state of mind of the accused. At any rate, I’m not convinced.

    • https://docs.google.com/document/d/1al-RuUEVxHk3ldQQC8o0U5ES3T7MfnmxdaKjVAl0Zzc/pub Angra Mainyu

      Were a man to premeditate the murder of his wife, does it matter if he
      was motivated by greed (say a wifes life insurance) vs. jealousy (say a
      wife suspected of infidelity)?

      In your example, it might be that there isn’t that much moral difference overall (it might depend on the case), but consider (for instance) an alternative:

      Were a man to premeditate the killing of another man, does it matter if the killer was motivated by greed (say to steal the victim’s money) or retribution (say the victim had repeatedly raped the killer when the latter was a kid)?

      It seems to me that (all other things equal) there is a moral difference between those two cases, and that would justify different punishments.

      But more generally, criminal law in most jurisdictions allows the judge to tailor the punishment for murder (or for most if not all other crimes) depending on a number of factors; motive may legally be taken into consideration (at least, in most jurisdictions, as far as I know).

      Differences in intent also could make the difference between first degree and second degree murder at least in some jurisdictions.

      Still, whether hate crime legislation can be justified on the basis of the intent being more evil is another matter; it does not seem to be Dan’s approach.

  • https://docs.google.com/document/d/1al-RuUEVxHk3ldQQC8o0U5ES3T7MfnmxdaKjVAl0Zzc/pub Angra Mainyu

    To that, I answer that it should not really the hatred of the perpetrator that is at stake here, even though we call them “hate crimes”. Morally you should be allowed to hate all you want without the law intervening, even if morally you also should not hate in the
    first place the majority of cases. What is really at stake in hate crimes, morally, is the fact that criminals who choose their victims based to one extent or another on their group membership aims at and/or has the effect of significantly harming more people than merely the direct victim(s). When the KKK threateningly burns crosses on a black family’s lawn or lynches a particular black person, they are effectively
    terrorizing black people everywhere, and especially all black people within reach of the KKK. That’s not to say that all blacks are terrified by the actions but that it’s, objectively, a terrorizing kind of act. Morally speaking, hate crimes are really a subspecies of the broader category of crime known as terrorism.

    Singling out a person because they belong to a certain group sends the message to others of that group that people in the culture hate them enough to attack them on the basis of their belonging to that group. That threatens their ability to feel safe in society.

    With regard to terrorism, it seems to me that different people tend to use the word quite differently (which more or less commonly results in miscommunication), and there is no universally accepted legal definition, either. So, I’m not sure which broader category of crime you have in mind, though it’s clear that you
    do not require intent to terrorize. Personally, I would prefer to restrict the use of the word “terrorism” to cases in which there is intent to terrorize a civilian population in order to obtain some concession from a government or generally
    group of people (perhaps, of a certain kind) as a result, but your usage is different, since you do not require intent to terrorize for an act to be a terrorist act..

    In any case, it seems to me that a potential difficulty for the approach to hate crime legislation that you propose (i.e., in terms of effects of the actions) is that many
    more crimes that those usually regarded as “hate crimes” (or “terrorism”) may well have a similar effect (i.e., well beyond the intended victim).

    For example, let’s say a thug targets the elderly because in his assessment, the elderly are less likely to be able to put up some defense. Would that terrorize the elderly?

    I mean, even if the motivation has nothing to do with hatred of elderly people, I do not see why attacks targeting members of the group in question would threaten their
    ability to feel safe in society any less than hatred-based attacks. He might be said to send the message that there are people in the culture who are willing to attack the elderly based on their belonging to that group (even if their belonging to that group is
    picked not because of hatred, but because of perceived average greater easiness in achieving a goal).

    Granted, that might not be much of an issue if those events (i.e., targeting the elderly) are rare (are they? That probably depends on the place). But the same can be said in the case of crimes targeting groups due to hatred (i.e., the less frequently a group is targeted, the less fear such attacks are likely to cause).

    But moreover, other crimes, such as, say, robberies (or robberies involving beatings, stabbings, etc.), even if not directed to an identifiable proper subgroup of the population, may very well and often do have the
    effect of threatening many people’s ability to feel safe in society – since they’re afraid they could be targeted and robbed (or robbed and beaten, stabbed, etc.)

    In fact, if such crimes are common in a city whereas, say, racially motivated assault is very rare, it may well be that most people (even of a racial minority) are more afraid
    of being robbed than they are of being targeted for racial reasons.

    But robbery is usually not classified as “terrorism”, nor does it have an added penalty for striking fear on other people.


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