The Harms of Hate Crime Laws

Robbie Sanderson, a 52-year-old black man, was arrested for shoplifting in Pittsburgh, PA, on September 23, 2016. Sanderson insulted the white officers during the arrest, calling them Nazis, Gestapo, and other racially-charged insults. He accused police of shooting people “for no reason” and allegedly threatened to sleep with an officer’s wife. In response, the police charged him with a hate crime.

The Oppressive Consequences of Regulating Speech

Though hate crime laws are intended to protect minorities from unnecessary cruelty, they ultimately grant more power to people who are likely to abuse it. When legislation targets speech—especially abhorrent speech—it becomes a way for the powerful to subjugate others and evade responsibility.

For stealing roughly $100 worth of merchandise from a CVS and mouthing off to police, Sanderson was charged with summary retail theft, misdemeanor terroristic threats, institutional vandalism, resisting arrest, and felony ethnic intimidation—which is defined as committing another offense “with malicious intention toward the race, color, religion or national origin of another individual or group of individuals.”

This charge is tacked on to others to increase the severity of punishment, and Sanderson’s racist speech was, in the cops’ eyes, sufficient.

Laws that guard against hate speech, well-intentioned or otherwise, are ultimately enforced by police. Officers are afforded protections and privileges unavailable to many of the people they swear to serve and protect.

This does nothing to protect minority groups from undeserved hate, but it does give police an incredible amount of authority over the speech of civilians.

For example, hurling a racist insult at a minority is reprehensible. It should be met with societal scorn. But if someone fires a racial epithet at an officer, that person can end up in jail with a felony charge, and the officer will likely face no repercussions. This does nothing to protect minority groups from undeserved hate, but it does give police an incredible amount of authority over the speech of civilians.

Most police officers do not hungrily lie in wait for an excuse to abuse such power, but classifying any group of people as the arbiter of distinguishing between hate speech and protected speech will surely have unintended consequences.

This is the reality of broad, ill-defined hate crime legislation. It lets the criminal justice system determine the scope and severity of the punishment for a crime that is largely subjective. Once this power is given, it is extremely difficult to take away.

Regulating Speech Doesn't Fight Fascism—It Enables Authoritarian Government

A brief look into the history of hate speech laws brings more unease.

According to the Hoover Institution at Stanford University, the 1948 Declaration of Human Rights, a nonbinding international document acknowledging global individual liberties, intentionally did not condemn hate speech. Most countries, including the United States, believed an unwavering commitment to freedom of speech and expression was critical to protecting individuals.

On the other side of the aisle was the Soviet Union, one of the worst human rights violators in the history of the world, which wanted the following included in the Declaration:

Any advocacy of national, racial, or religious hostility or of national exclusiveness or hatred and contempt, as well as any action establishing a privilege or a discrimination based on distinctions of race, nationality, or religion constitute a crime and shall be punishable under the law of the state.

The Soviets claimed this would prohibit fascism, but the United States, Belgium, the United Kingdom, and others took a hard stand against including this language. These countries rebuked the Soviets not because they secretly admired the horrific fascism the world had just defeated but because they recognized that giving the government the power to determine who is "fascist," "racist," or any other "-ist" is, even in a non-binding declaration, dangerous.

Bringing this Soviet fantasy into modern American politics yields results like Sanderson’s. A government that gets to determine hate speech will increasingly see anyone railing against that government as hateful. Then the laws that are intended to protect minorities can be fashioned into a bludgeon to be used against anyone who dares call a police officer a Nazi.

Free speech is fragile; it must be vigilantly protected. Those who want to curtail expression, even when they believe they’re protecting others, must realize that a government with the power to deem someone criminally hateful can use vague legislation to silence dissent.

Mary Catherine Roper, deputy legal director for the ACLU of Pennsylvania, called the terrorism and ethnic intimidation charges against Sanderson “ridiculous” and claimed they were “not what the hate crime statute was for.”

This daft, lazily optimistic approach to legislation is a structurally unsound California home, and the abuse of power by those who wield it is an inevitable magnitude seven earthquake. It’s coming, and it will level the ground where the house stood.