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.
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:
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