Are Pastors About to Be Jailed for Hate Crimes? No.

After the shooting in El Paso last month, a lot of people tried blaming the shooting on everything they possibly could—video games, lack of prayer in school, and so on. Anything but calling it what it was—a white supremacist hate crime. When the issue of hate crime did come up, some conservatives demurred.

Take this statement by Louie Gohmert, a Republican Congressman from Texas, for example:

“There is no death penalty under federal law,” Gohmert said, “so all of this screaming and yelling we need to punish him for hate crimes, you know, that’s just going to be something used to lock up preachers someday.”

Gohmert continued to say “we should punish people for what they actually do, and not for something stupid that they say or may have crossed their mind.”

On first read, this may be confusing. Did Gohmert really say that if we punish the shooter for committing a hate crime, this same logic is going to be used to lock up pastors? Yes, yes he did. Was that a suggestion that pastors are going to rise en masse and start shooting immigrants? No, no it was not. Well. Sort of.

In recent years, conservatives have become very, very concerned about designations like “hate crime” and “hate speech.” Why? It has to do with conservative opposition to gay marriage.

In some countries, speech against homosexuality has been designated “hate speech.” Conservatives have raised concern that hate speech laws like these could be used to imprison pastors for preaching that homosexuality is sin. And they’re not wrong, as far as this logic goes. If it is deemed impermissible hate speech to disparage members of a group based on certain characteristics, well, calling gay and lesbian people depraved—language many conservative pastors in the U.S. use as a matter of course—would seem to be included.

Gohmert’s statement that we should “punish people for what they actually do” and not for things they think or say likely stems from a concern, widespread among conservatives, that hate speech laws will be used to imprison pastors based on their sermons preaching that homosexuality is sinful and depraved. 

This is not, of course, what Gohmert said. For one thing, there is a difference between hate speech and hate crimes. For another thing, the hate crime in question was against Latinx people, not queer people.

Gohmert was corruptly lambasted for what he said. He either was terrible at communication what he actually meant, or there are a whole bunch of pastors out there denouncing immigrants in the worst or terms. And. Well. That could absolutely be the case. I haven’t been to any church in years, and I’ve never been to church in Texas.

Let’s take the conversation back to anti-gay speech and hate speech legislation for a moment, though. To begin with, it’s my understanding that the First Amendment offers far more expansive protections for speech in the U.S. than exists in other countries. For instance, it is illegal to deny the Holocaust in Germany. In the U.S., the First Amendment would never allow for such a thing.

But I’d like to address another aspect of this issue. The expansiveness of the First Amendment means that speech is protected even when it harms others. To be clear, I’m not suggesting that we change this, necessarily—I can see strong benefits to expansive freedom of speech. I’m an American. Being proud of the expansive nature of the protections in First Amendment feels natural to me. But, I do think we need to be aware of what is lost.

In the 1970s, when a Nazi group planned a march through Skokie, Illinois—a largely Jewish area with a high number of Holocaust survivors—their right to do so was upheld by the U.S. Supreme Court. In upholding expansive First Amendment rights, we render certain groups vulnerable to harassment and worse. We should be aware of this tradeoff, and should work to mitigate it in various ways. The Nazis won their suit, but officials were ultimately able to convince them to march in a neighborhood with a smaller Jewish presence.

In sum, we are not in any danger of seeing either anti-gay or anti-immigrant speech banned as hate speech. (It’s worth bearing in mind that the U.S. does not even have hate speech laws. Why? The First Amendment.)

If Gohmert wants to talk about whether there should be a specific “hate crime” designation, that’s fine. Whether people should be punished more severely for the same crime based on their motivations is a question worth discussing. But suggesting that if we do have a designation for hate crimes, pastors are going to end up caught in this net—let’s just say this does not communicate what Gohmert seems to think it does.

Also? Describing the El Paso shooter’s white supremacism as “something stupid” that “may have crossed” his mind, when Gohmert belongs to a political party known for discussing immigrants using the language of infestation, strikes me as extremely disingenuous. Gohmert himself said in May that “Texas has a first-hand view of the crisis on our southern border and the dangers we all face as the onslaught continues unabated.”

So. There’s that.

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