Wednesday, December 10, 2003

Thought crimes, Newspeak, and 2004

It obviously hasn't yet occurred to our noble defenders of American liberty on the right, but the proliferation of the "dissent is treason" meme represents a significant phenomenon: namely, conservatives are in the process of creating a genuine "thought crime."

Treason is, after all, a serious crime -- one that once instantly warranted hanging, a punishment that is still a favored remedy for liberalism among the more primitive sectors of the right. And according to these mighty thinkers, merely holding anti-war or (especially) anti-Bush positions amounts to such an offense. As Ann Coulter puts it, "Liberals have a preternatural gift for always striking a position on the side of treason."

There is no small irony in this, of course, because Republicans have been busy warning us that it is liberals who are planning to deluge democracy with an onslaught of "thought crimes" -- see, e.g., the abominable Tammy Bruce. [What were we just saying about projection?] The centerpiece of this line of argument, even more than the supposed epidemic of "political correctness," is that the most prominent of these "thought crimes" comes in the form of "hate crimes."

As I've discussed previously, opposition to bias-crime legislation is a significant component of the mainstream GOP's willing promotion of the religious right's agenda. A bevy of non-religious arguments are offered against the laws, but few of them bear up to close scrutiny. At the end of the day, it's clear that the bills are killed solely because the religious right is feverishly opposed to "the homosexual agenda," and since all post-1998 hate-crimes legislation (appropriately) expands the definitions of the laws to include violence against gays and lesbians, the laws themselves have come under severe attack.

One of the most common of these non-religious arguments raised by mainstream Republicans -- and even the religious right -- is the contention that the laws create "thought crimes." I first heard this claim, incidentally, at an Aryan Nations rally in the late 1980s; by 1999, it was being proffered by the Family Research Council in opposing the Hate Crimes Prevention Act:
"We call it the thought crimes act," said Robert Regier, a policy analyst in the Cultural Studies Department of the Family Research Council, in an interview with CNS.

The "thought crimes" argument begins with a seemingly reasonable and simple argument: A simple assault will bring, perhaps, a two-year sentence; an assault committed with a bias motivation may bring as many as five. The only difference is in the thoughts of the perpetrator; therefore, the laws punish him for his thoughts. This, they argue, is in clear violation of the First Amendment protection of free speech.

Of course, as I've noted, the perpetrator's mens rea, or mental state, in fact is a fundamental feature of determining the severity of punishment for a broad range of crimes. The hate-crime laws currently on the books no more create thought crimes than do tougher sentences for first-degree murder.

The Supreme Court indeed dismissed in 1992, with its R.A.V. v. St. Paul ruling, an earlier version of some hate-crime laws for violating First Amendment principles. But the now commonly accepted form of bias-crime laws was endorsed unanimously by the Court a year later in Wisconsin v. Mitchell, an opinion authored by Chief Justice William Rehnquist. That ruling explicitly found that the laws, by focusing on criminal acts that are not protected the First Amendment, are perfectly constitutional.

Put simply: The First Amendment protects speech, not conduct -- thoughts, not crimes. One cannot commit a crime and simply claim it as an act of free speech. An assassin cannot kill the President and pretend he is protected by First Amendment rights to political speech.

Indeed, underlying many of the arguments offered by opponents of hate-crime laws (reflected, for instance, in the Traditional Values Coalition’s charge that they are "anti-Christian") is the notion that criminal behavior (such as assaulting or threatening a gay person) somehow deserves First Amendment protections. But crimes are not a form of free speech. Gay-bashing is no more a right than is lynching or even, say, assassinating the president. Political thought may motivate all of them, but that doesn't mean the Constitution protects any of them.

However, it is worth noting that the speech-conduct distinction drawn by the Court is not without its problems, in no small part because speech and conduct are so often inextricable. As bias-crime legal expert Frederick Lawrence observes, "applying the distinction between conduct and expression requires a process that assumes its own conclusions. That which we wish to punish we will term 'conduct' with expressive value, and that which we wish to protect we will call 'expression' that requires conduct as its means of communication."

On the other hand, Lawrence points to the distinction between bias crimes and their underlying parallel crimes, which in effect create two tiers of evidence for any kind of hate-crime prosecution to succeed. At both tiers, the criminal's mens rea is an essential component. In the first tier of a crime -- say, an assault -- the intent to commit the crime still must be established; at the second tier, both the first-level intent and the second-tier bias motivation must be proven. For a bias-crime prosecution to succeed, it must establish both tiers of mens rea.

Thus someone who merely partakes of hate speech, with no intent to intimidate, is guiltless of a hate crime, because the first tier of motivation is absent, and thus no free-speech rights have been infringed upon. But because menacing and intimidation, all of which in fact take the form of words alone, are punishable crimes in every state, anyone using hate speech to terrorize his neighbors has partaken of a bias crime.

Consider, for instance, the example of cross burning. A white supremacist who burns a cross at a private rally is undoubtedly voicing a kind of racial hate, but there has been no attempt to intimidate or menace anyone, and no crime has been committed. Likewise, someone who, say, dumped garbage on a black neighbor's lawn would only be guilty of harassment or intimidation, not a bias crime (unless, of course, evidence existed he had done so because of the neighbor's race). But someone who burns a cross on his neighbor's lawn has clearly committed a hate crime, because he has both the intent to intimidate and racial bias as his motivation.

In this sense, hate-crime laws avoid running afoul of the First Amendment in the same fashion as any other of the myriad sentence-enhancement laws, including anti-terrorism statutes, because they all reflect the differences in mens rea among acts that are already established crimes. More to the point, there are limits to free-speech rights; threats and intimidation are already illegal, as are incitement to riot, incitement to murder, and other kinds of speech.

And indeed the Supreme Court recently has moved in this direction in upholding the constitutionality of hate-crime laws. The recent cross-burning case, Virginia v. Black, produced a March 2003 ruling (authored by Sandra Day O'Connor) that followed this logic closely. The state of Virginia, the Court said, was well within its rights to outlaw cross-burnings meant to intimidate:
The protections the First Amendment affords speech and expressive conduct are not absolute. This Court has long recognized that the government may regulate certain categories of expression consistent with the Constitution. … For example, the First Amendment permits a State to ban "true threats," … which encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. … The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur. … Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.

At the same time, the court threw out the provisions of Virginia's law that would have made any cross-burning a de facto attempt to intimidate and thus proscribed. This is, again, consistent with the logic proposed by Lawrence (who, as it happens, helped advise the attorneys arguing the Virginia case).

Hate-crime statutes are still evolving as a matter of law, and will continue to do so for years. What the body of these rulings makes clear, however, is that the bias-crime laws now on the books do not create "thought crimes," nor do they chill or suppress anyone's right to speak and think freely. They simply punish the decision to act inappropriately upon those thoughts -- by committing what is already a crime. As such, they just remove the fig leaf of "free speech" from crimes that clearly harm both individuals and society.

The most important thing to understand about hate crimes, in fact, is the extent to which they represent what Yale professor Donald Green calls the "dead-weight loss of freedom" that they engender. Consider, if you will, the larger purpose of hate crimes: to threaten and intimidate every member of a target community, to "send a message" that their mere presence is not tolerated. As Green puts it:
I think if you had to kind of step back and ask, 'Does hate crime pay?', you'd say yes. If the point of hate crimes is to terrorize the population into maintaining boundaries between these perpetrators and the victimized populations, at least in some areas -- certain parts of town, certain parts of the country, et cetera -- you know, certain kinds of romantic relationships, whatever -- then it does succeed in that. Because people really do feel that they have to constrain their behavior lest they open themselves up for attack. You know, gay men don't often hold hands in public. Black and white couples don't form spontaneously to the extent that you might expect based on their daily interactions.

There are a lot of instances like that -- and you know, we all probably have interactions with people who, when they're invited to a certain part of town, say, 'Oh, I better not go there.' From my standpoint, you tend not to attract much notice from policymakers, but I think of that as a massive dead-weight loss of freedom.

The reality is that, contrary to the groundless claims of conservatives, hate-crimes laws are not about impinging on people's freedoms -- they are about enhancing them. The only freedom upon which the laws impinge is the freedom to commit violence against your fellow citizens -- and that is not a freedom any of us, I think, are willing to recognize in a lawful society.

The "thought crimes" opposition to hate-crimes laws is thus a kind of Newspeak: it depicts the laws as something to which they are in fact directly contrary. As I discussed awhile back, the essence of Newspeak is to render the meaning of words empty by assaulting them with falsification -- especially by positing a concept's near-opposite as its equivalent ("war is peace," "ignorance is strength").

It is not exactly a surprise, of course, that the GOP is using Newspeak to assault the concept of hate crimes. Most notably, House Majority Leader Tom DeLay recently made a distinctly Newspeak-driven reference to the concept when he accused Democrats, after their successful filibuster of the court nomination of Miguel Estrada, of "a political hate crime" -- a charge that, of course, enjoyed considerable circulation in right-wing circles.

There was no small hypocrisy in this charge. DeLay, after all, almost singlehandedly prevented the Hate Crimes Prevention Act from becoming law in 1999, and likewise killed its successor, the Local Law Enforcement Enhancement Act, in 2000. On both occasions, the bill had passed the Senate was headed for easy passage in the House, and would have been signed into law by President Clinton. On both occasions, DeLay used hardball tactics to kill it behind closed doors.

Moreover, as O. Ricardo Pimentel observed at the time, Republicans were not exactly in a position to complain about racially tinged refusals to approve minority judicial nominees -- since they had themselves blocked six of Clinton's Latino nominees.

The unnoticed but significant aspect of DeLay's newfound admiration for the notion of "hate crimes" was the way it muddled that very concept. A hate crime is in fact a bias-motivated crime. No aspect of Democrats' opposition to Estrada, in fact, suggested a racial bias on their part, except for the mere fact of Estrada's race -- which in the case of an actual crime, does not constitute evidence of a bias motive. Underpinning DeLay's claim is the suggestion that Estrada should have gotten a free ride merely because he was Latino -- a racially condescending position of the kind that Republicans themselves often accuse liberals of indulging.

And what exactly is a "political crime" anyway? Holding impeachment hearings in a case whose foundations are laughable, perhaps? Smearing a judicial nominee as "pro-criminal"? No, of course not -- as Pimentel suggests, it isn't a crime if it's committed by a Republican.

When Republicans suddenly -- in the name of attacking liberals -- embrace concepts that they formerly had vociferously attacked, it's a clear signal that they are engaging in Newspeak. DeLay's remarks were no exception.

But they were only the beginning of a fresh Republican foray into using Newspeak not only to attack the concepts of "hate crimes" and "hate speech," but to inject the Newspeak into the 2004 presidential campaign.

The most recent permutation of this strategy is directly tied to the "Bush hatred" meme now on the lips of every conservative -- which, it has become clear, is being closely associated with the "dissent is treason" meme. This was on public display when GOP officials announced a couple of weeks ago that they intended to use the "war on terrorism" as a major campaign centerpiece in 2004:
The strategy will involve the dismissal of Democrats as the party of "protests, pessimism and political hate speech," Ed Gillespie, Republican National Committee chairman, wrote in a recent memo to party officials -- a move designed to shift attention toward Bush's broader foreign policy objectives rather than the accounts of bloodshed. Republicans hope to convince voters that Democrats are too indecisive and faint-hearted -- and perhaps unpatriotic -- to protect US interests, arguing that inaction during the Clinton years led to the attacks of Sept. 11, 2001.

Brendan Nyhan at Spinsanity put together a thorough response to this atrociousness:
The Republican assault on "political hate speech"

Like "Enronomics" and "Daschlenomics", "political hate speech" is a carefully crafted term designed to create a hazy, non-logical association between two concepts. In this case, the phrase associates criticism of the president with "hate speech," which generally refers to speech that attacks others on the basis of their race, religion, ethnicity or sexual orientation. Of course, some rhetoric directed toward President Bush could fairly be described as hateful (just like any politician), but Republicans have used the term sweepingly to try to delegitimize nearly all criticism of Bush, regardless of its substance. This is a key tactic of political jargon, which often seeks to undermine the legitimacy of criticism by invoking hazy but powerful emotional symbols.

In addition, the phrase reverses the term "hate speech" by directing it back at liberals (another classic jargon tactic), who are associated with the term due to speech codes proscribing "hate speech" at certain colleges and universities. The use of the term "political hate speech" against Democrats thereby imparts an implicit, largely non-rational accusation of hypocrisy, even though no evidence is provided that the candidates in question support prohibitions on hate speech.

The aspect of this that Spinsanity overlooks, of course, is the way it degrades the notion of hate speech -- and by unspoken extension, of hate crimes. The term "hate speech," in fact, is derived conceptually from "hate crimes" (which in turn was the progeny of the term "hate groups"). Both concepts, as Nyhan observes, are fairly specific in their purpose, intended to identify behavior that exudes from racist, homophobic and anti-Semitic hate groups. They are not about "hate" generically but about a specific range of behavior. Conservatives, though, make considerable hay by referring instead to generic hate, creating misunderstandings that appear entirely intentional.

All told, the GOP strategy is astonishingly audacious: Making Democrats out to be irrational "haters" capable of treason, springboarding from rhetoric that dilutes the reality of bigoted hate speech and hate crimes and debases the public's understanding of them. And the cumulative effect is to lay the groundwork for creating the thought crime of questioning the president. It is already the dominant kind of "political correctness" in the country. How long before the yahoos' agitation becomes formalized?

These attacks have consequences well beyond the 2004 election. If the GOP succeeds in using Newspeak to turn "hate speech" into a "liberal" trait, then it will be only a little while before the real stuff starts turning up in greater volumes -- with preordained justification from conservatives. After all, such "hate speech" is seemingly about to be declared treason. But it isn't "hate speech" to denounce traitors, even in the language of vicious bigotry. It's "patriotism."

This strategy goes beyond being merely ballsy. It is, in fact, diabolical.

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