The attorneys at the American Civil Liberties Union must be exhausted. It's not easy to contort one's reasoning in such a way that defends the Nazi's right to march while simultaneously supporting so-called hate crimes legislation. Perhaps a little consistency would be less hazardous to their mental health?
In recent weeks, the ACLU has come out in strong support of the American National Socialist Workers Party of Roanoke, VA -- a neo-Nazi group -- and their plan to march through a predominantly African-American neighborhood in Cincinnati tomorrow. This is par for their course: the ACLU pushed for -- and won -- the landmark Supreme Court case in favor of Ku Klux Klan expression, Brandenberg v. Ohio (1969).
At the same time, the ACLU has come out in favor of new hate crimes legislation sponsored by Sen. Ted Kennedy (D-MA) and Sen. Gordon Smith (R-OR). The bill -- H.R. 1592 -- would allow federal law enforcement officers to more easily investigate and prosecute so-called hate crimes.
But what crime isn't motivated by some form of hate, or at least callous indifference towards the rights, property, or life of another? Can we not just prosecute the criminal activity -- as we always have -- without making the same criminal act against given classes of people more heinous than against other classes of people?
Not according to the ACLU, whose m.o. has long been that some people are more equal than others.
In effect, the ACLU's logic concerning hate speech is this: crude, hateful speech that advocates violence and crime should be protected, but politically-incorrect, hateful thoughts or speech directly related to an actual violent crime against certain classes of people should be prosecuted, over and above the crime itself.
Got that?
A white paper submitted by the Alliance Defense Fund explains how dangerous Sen. Kennedy's hate crime bill is:
H.R. 1592 is a discriminatory measure that criminalizes thoughts, feelings, and beliefs, and provides greater protection to some victims than others simply because of a status, whether chosen or inherent. The bill has the potential of interfering with religious liberty and freedom of speech as proposed, and creates additional risks for the future.
Make no mistake, that potential is real.
In 2005, Canada amended a very similar hate crimes law to protect homosexuals from "intolerance." During the two years preceding the passage of C-250, a number of lawsuits were filed against traditional Christians and Jews, with the Canadian courts generally sided against those traditionalists who spoke against the gay lifestyle and agenda. And since C-250 passed, the investigation and prosecution of Christians -- like this one -- has increased. "Hate speech" has become a "hate crime" in and of itself, even when not accompanied by criminal activity, violent or otherwise.
H.R. 1592 is bad law for a number of reasons. The tortured logic of the ACLU means that it could become even worse, proving once again that the ACLU is more interested in protecting the speech of Skinheads and Nazis than they are of devout Christians.
Comments (2)
The ACLU is even more inconsistent than you recognize. Sometimes it has sought to suppress hate SPEECH (not just hate CRIMES), while other times it seems to exalt license to engage in hate speech above competing constitutional rights, such as property rights, as I explain below.
The real evil of the federal hate crimes bill is that it undermines constitutional protections against double jeopardy.
As New York University Law Professor James Jacobs, an expert on hate crimes, argues, "a federal hate-crime law would also put another nail in the coffin of our constitutional protection against double jeopardy. After all, every federal hate crime would also be a state crime, like assault, robbery, or murder. Thus, the defendants could be tried twice if special interests judged the first trial to have ended in an unjust acquittal."
(Imagine a federal equivalent of the Duke lacrosse prosecutor, Michael Nifong).
Even Yale Law Professor Akhil Amar, who wrote an influential 1992 defense of state hate crimes laws in the Harvard Law Review, told Congress that he has concerns about the prospect of dual prosecutions under the federal hate-crimes bill.
In supporting the bill, the ACLU has jettisoned principle and sacrificed civil liberties on the altar of political correctness.
Historically, the ACLU has raised concerns about federal laws against crime like the Fugitive Felon Act, citing the Constitution's ban on double jeopardy.
The ACLU feared that the creation of federal crimes would give prosecutors two bites of the apple, enabling a federal prosecutor to indict an accused person even after a state court jury has found him not guilty of a similar state crime.
(A divided Supreme Court created a gaping loophole in the constitutional protections against double jeopardy, ruling in the Bartkus case that the double-jeopardy protection against being tried twice for the same crime only applies when both prosecutions are brought by the same unit of government, not when the first is by the state and the second is by the federal government).
The ACLU in the past declined to endorse federal hate crimes bills.
In its June 15, 2000 letter to the Senate criticizing aspects of the federal hate crimes bill, it raised the specter of "unwarranted dual prosecutions" (it did not expressly cite double jeopardy, though).
Moreover, under its longstanding policy (Policy #238a), it has long claimed to oppose federal prosecutions after state court acquittals.
ACLU Board members have said that such reprosecutions may violate the International Covenant on Civil and Political Rights.
Now, however, the ACLU is endorsing the hate crimes bill.
And its former National Legal Director, Burt Neuborne, told Congress that reprosecutions of people found not guilty of hate crimes in state court are appropriate where the state prosecutors supposedly had "inadequate resources" or were of "questionable effectiveness."
Apparently, while the ACLU believes that criminals in general should receive every constitutional protection imaginable (and many protections that have no basis in the Constitution: the ACLU opposes the death penalty, "three-strikes" laws, victims' bills of rights, and the building of many new prisons), it believes that those accused of "hate crimes" are not entitled to the constitutional protection against double jeopardy.
The ACLU has given no reason for its unprincipled about-face.
But Southern California ACLU leader Paul Hoffman gave a possible explanation years ago in urging the ACLU to create a "civil rights exception" that would deny double-jeopardy protections to people accused of hate crimes.
Writing in the 1994 issue of the UCLA Law Review, Hoffman argued that constitutional protections against double jeopardy should be overridden in hate crimes cases, because society has a "compelling societal interest" in preventing hate crimes (by contrast, Hoffman apparently saw no compelling interest in preventing non-hate crimes, even murders).
The ACLU's about-face on double jeopardy is similar to its prior about-face on free speech, which it now regularly attacks.
Once upon a time, the ACLU took free speech to an unbounded extreme, using it to trash property rights. It sued the owners of the Alpine Village Inn in Torrance, California for not allowing neo-Nazis to display swastikas in their restaurant, and sued a private shopping mall in Connecticut for not letting the Klan proselytize on its property.
By contrast, today's ACLU attacks free speech, and seeks to use government power to silence "hate speech."
Various ACLU chapters have disseminated model campus speech codes.
And in the Aguilar v. Avis Rent-A-Car System case, the ACLU argued that racial slurs are not speech, but just "verbal conduct." In that case, it helped convince a divided California Supreme Court, in a 4-to-3 ruling, to uphold an injunction banning any use of racial slurs in a private workplace, based on racial insults that the trial judge himself conceded had stopped years earlier.
And in Meltebeke v. Bureau of Labor and Industry (1995), it sought to convince the Oregon courts not only that workplace religious proselytizing was "discriminatory harassment" but also that the Establishment Clause limited the free speech rights of purely private employers. (The Oregon Supreme Court overturned the fine for religious harassment defended by the ACLU's amicus brief, ruling that the religious freedom guarantees of the state constitution required proof that a speaker actually knows his speech is deeply offensive to its target before it can be banned).
A discussion of the above cases can be found in my posts at the Competitive Enterprise Institute's Openmarket.blog.
(I am a lawyer. An ironic fact is that my mother, father, and identical twin brother were once all ACLU members. But nobody in my family likes the ACLU anymore).
Posted by Hans Bader | May 17, 2007 11:28 AM
Posted on May 17, 2007 11:28
My reference in the above post to the Oregon Supreme Court's Meltebeke case should be to Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995).
I said "Industry" by mistake rather than "Industries."
Posted by Hans Bader | May 17, 2007 11:33 AM
Posted on May 17, 2007 11:33