Is Hate Speech a Hate Crime?

On October 28, 2009, President Obama signed into law House Resolution (H.R.) 2647—the National Defense Authorization Act for Fiscal Year 2010. The purpose of this legislation was amended in conference to read as follows:

...to authorize appropriations for fiscal year 2010 for military activities of the Department of Defense, to prescribe military personnel strengths for fiscal year 2010, and for other purposes.

The “other purposes” included the attachment of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.

While the budget and health care debates have taken center stage in American politics in 2009, the proposed hate crime legislation has been embroiled in much controversy and misinformation since June. Included in this legislation is:

• The definition of a hate crime.
• Grant allotments for encouraging and aiding in their prosecution.
• Sentencing limitations.

The purpose of the law can be clearly seen through the men immortalized in its title. Matthew Shepard was a 21-year-old man who was tortured and murdered in 1998 because he was gay. The same year, James Byrd Jr., was dragged to death behind a pick-up truck because he was black.

Before H.R.2647 was passed, although current federal law did exist, most power regarding what constituted a hate crime was left to the individual states—five of which had no laws regarding hate crimes at all.

According to the legislation itself, Congress makes the following findings:

1) The incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim poses a serious national problem.

2) Such violence disrupts the tranquility and safety of communities and is deeply divisive.

3) State and local authorities are now and will continue to be responsible for prosecuting the overwhelming majority of violent crimes in the United States, including violent crimes motivated by bias. These authorities can carry out their responsibilities more effectively with greater federal assistance. [Emphasis mine]

4) Existing federal law is inadequate to address this problem.¹

The concern from the Christian community usually is in regard to the inclusion of “sexual orientation” and “gender identity” as victim groups. Many are concerned that this will do one or all of the following:

• Prohibit teaching or quoting Biblical verses which view homosexuality as a sin.
• Encourage a “thought-police” mentality; encouraging not punishing just a crime, but the personal, protected opinions which caused it.
• Give special rights to homosexuals and transgendered people.

The first point is the most common concern, which comes from a misunderstanding of the actual definition of a hate crime. The new law states that the definition for the term “hate crime” is the same definition in the Violent Crime Control and Law Enforcement Act of 1994. This Act defines a hate crime as:

[A] crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.²

The only addition to this definition in the new law is the inclusion of “gender identity”; therefore, the new law goes no further than what has been in place for the past 14 years, specifically in the case of homosexuality (at a federal level). Furthermore, the term “hate crime” is specifically, first and foremost, a crime. The action being prosecuted must first be a crime before it can be considered a hate crime.

Due to the limitations placed upon the government’s ability to curb free speech in the First Amendment to the Constitution, the United States government and, as later ruled, state governments³ are prohibited from passing legislation against hate speech. This is in stark contrast to anti-hate speech laws and regulations in other industrialized countries (e.g., Canada, the UK, France, Germany, Australia, New Zealand), and is often not fully understood by Americans.

While, yes, as the cliché goes, shouting “fire” in a theatre is prohibited (as are copyright infringement, slander, libel and incitements of violence in which violence is “imminent”), this is because these forms of speech encroach upon the protected rights of others. Simply speaking your opinion, be it in hatred toward someone of another race, or stating from the pulpit that homosexuality is a sin, is not considered a crime, and is, to the contrary, protected speech.

Therefore, if no crime has been committed, neither has any hate crime. In cases in which a crime has been committed, such as assault or murder, concerns have been broached regarding punishing twice: once for the crime, and again for the (protected) opinions which led to the commission of the crime. Furthermore, any violent crime would have similar malice behind it. And so, the term “hate crime” not only punishes the offender for their beliefs, but puts protected individuals above others (e.g., it is unfair that a white man murdering a black man would have a more severe punishment than a white man murdering another white man).

However, what is being punished by hate crime laws is not the actual hate, prejudice, opinion, or belief, but the intent to terrorize. As stated in the law,

A prominent characteristic of a violent crime motivated by bias is that it devastates not just the actual victim and the family and friends of the victim, but frequently savages the community sharing the traits that caused the victim to be selected.

While a crime is geared toward and affects the victim and family and friends of the victim, hate crimes are directed toward the entire group, by selecting a member or members of the group to victimize in order to affect that entire group. The victims may serve as a “warning” or threat to other members of this group in the area that they are unwelcome and/or unsafe. This is very similar to an act of terrorism in which (though much more complicated in definition) one group similarly attacks, often randomly, members of another group in order to affect the whole.

Therefore, in the case of a hate crime, a different, more severe crime is being committed, and so, a different, more severe punishment is not only legal, but just. The personal beliefs of the perpetrator are not what is being punished.

Finally, the law in no way gives special rights or protections to homosexual, bisexual or transgendered people. The blanket term “sexual orientation” is used, clearly meaning homosexual, heterosexual or bisexual orientation. The FBI already (under federal law) keeps statistics regarding hate crimes reported.

Included within sexual orientation-based hate (“bias”) crimes are those committed against all three orientations, not just homosexuals. Gender-related crimes were also already considered hate crimes, but now a gender-related claim includes transgendered and intersex people along with both males and females.

Personal opinions aside on whether hate crime laws are a benefit or a detriment to a society, one can conclude from the law itself that they are both allowed constitutionally and will not affect a Christian negatively unless he or she is already committing a crime. As Christians, we should not be committing, supporting, nor promoting violent crime against any group of people, whether or not their actions or beliefs are in accordance to our personal beliefs, the Bible, or the beliefs of a church.

Keep in mind it is not just the legality of our behavior that is our only guideline. Preaching that homosexuality is a sin in the context of the Romans passage (Rom 1:27-28) is acceptable. However, while the United States does not have laws against hate itself, God does.

Whosoever hateth his brother is a murderer: and ye know that no murderer hath eternal life abiding in him.

1 John 3:15

There is no greater supporter for the love of all people than Jesus, who commands us:

Ye have heard that it hath been said, Thou shalt love thy neighbor, and hate thine enemy. But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you; ...for if ye love them which love you, what reward have ye? Do not even the publicans the same? And if ye salute your bretheren only, what do ye more [than others]? Do not even publicans so?

Matthew 5:43-47

Camilla Bryner has been a member of Koinonia Institute since 2007 and is currently completing her Silver Medallion coursework.