ACLU Criticizes Senate Version of Hate Crimes Law

The ACLU has now weighed in on the Senate's passage of the Hate Crimes Law. In a nutshell, the ACLU says the House version is okay but the Senate version is not.

the Senate version of the hate crimes bill lacks the strong protections for speech and association included in legislation passed by the House of Representatives in June. The American Civil Liberties Union believes that without the speech and association protections included in the House bill, the Senate hate crimes legislation could have a chilling effect on constitutionally protected speech and membership.


Unless amended to block evidence of speech and association not specifically related to a crime, the Senate hate crimes amendment could chill constitutionally protected speech and association. An otherwise unremarkable violent crime should not become a federal hate crime simply because the defendant visited the wrong website, belonged to a group espousing bigotry, or subscribed to a magazine promoting discriminatory views, however wrong and repugnant those beliefs may be. We urge Congress to instead adopt the House version of the hate crimes bill, which protects both civil rights and free speech and association.”

While I oppose both, we are going to get one or the other. Let's hope it's the House version.

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    I don't think they were watching C-SPAN (5.00 / 1) (#6)
    by MikeDitto on Fri Jul 17, 2009 at 05:36:52 PM EST
    The Senate nearly unanimously approved two amendments from the floor (one from Hatch and one from the Leahy) that IMHO makes the Senate version far more explicit on First Amendment protections than the House version.

    They are amendments to an amendment, so it's not easy to find on Thomas. Currently you have to go through the Congressional Record text to get to them.

    Not to mention (5.00 / 1) (#7)
    by andgarden on Fri Jul 17, 2009 at 05:43:17 PM EST
    an amendment voted on explicitly.

    But we count on you to follow this stuff Mike.


    Amendments (5.00 / 2) (#8)
    by MikeDitto on Fri Jul 17, 2009 at 05:48:25 PM EST
    SA 1610.

        Strike page 16, line 24 through page 17, line 7 and insert the following:
        Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes on any rights under the first amendment to the Constitution of the United States, or substantially burdens any exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, association, if such exercise of religion, speech, expression, or association was not intended to--
        (1) plan or prepare for an act of physical violence; or
        (2) incite an imminent act of physical violence against another.

    SA 1613.

        At the end of the amendment, insert the following:
        (b) FIRST AMENDMENT.--Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.
        (c) CONSTITUTIONAL PROTECTIONS.--Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

    The House version doesn't contain any of this language.


    Do you read that language to guarantee (none / 0) (#9)
    by Joelarama on Fri Jul 17, 2009 at 05:53:58 PM EST
    that a Defendant can present evidence relating to a "gay panic" defense?

    I'm not a criminal lawyer.  But it seems to me that with rules of construction favoring defendants in criminal statutes, it just might.


    I'm not a lawyer either (none / 0) (#19)
    by MikeDitto on Fri Jul 17, 2009 at 08:00:10 PM EST
    But defendants can already present gay panic arguments, even where hate crimes laws exist.

    Allen Andrade was the first person convicted under a state hate crimes statute for targeting and killing a transgender person. His defense was that he panicked when he discovered Angie Zapata's male genitalia, yet he was convicted under Colorado's hate crimes statute.


    Thanks ACLU... (none / 0) (#1)
    by kdog on Fri Jul 17, 2009 at 03:43:46 PM EST
    it hadn't even dawned on my how intrusive the prosecution would have to get to "prove" the presence of bigotry in the mind of the accused...that is chilling.

    Good on you (none / 0) (#2)
    by DancingOpossum on Fri Jul 17, 2009 at 03:49:56 PM EST
    Good on you for opposing both J. Wish more people had your sense on this issue.

    It's nice to see (none / 0) (#3)
    by jbindc on Fri Jul 17, 2009 at 04:32:45 PM EST
    The ACLU agreeing with the Christian Coalition.


    Opponents of the bill, including conservative religious groups, argued that it infringes on states' rights and could intimidate free speech.

    "The bill could potentially imperil the free speech rights of Christians who choose to speak out against homosexuality -- which could even be extended to preaching against it," The Christian Coalition of America said in a statement.

    Supporters countered that prosecutions under the bill can occur only when bodily injury is involved, and no minister or protester could be targeted for expressing opposition to homosexuality, even if their statements are followed by another person committing a violent action.

    To emphasize the point, the Senate passed provisions restating that the bill does not prohibit constitutionally protected speech and that free speech is guaranteed unless it is intended to plan or prepare for an act of violence.

    WWJH (none / 0) (#15)
    by andgarden on Fri Jul 17, 2009 at 06:38:47 PM EST
    Who would Jesus hate?

    Already protected by Brandenburg v Ohio. (none / 0) (#21)
    by Ben Masel on Fri Jul 17, 2009 at 10:46:56 PM EST
    Hate Law (none / 0) (#4)
    by El Sabio Pedro on Fri Jul 17, 2009 at 05:08:11 PM EST
    I haven't seen the hate law, but it seems to me if the ACLU is opposed to it, then it's a bad law. The US government is increasingly repressive and autocratic - maybe it's time for Americans to draft a new Constitution enshrining basic civil rights in a stronger fashion.

    Apparently, when it comes to hate crimes, (none / 0) (#5)
    by Joelarama on Fri Jul 17, 2009 at 05:29:09 PM EST
    the only freedom of expression that matters is the defendant's.  Namely, raising a homo panic defense.

    This is what we are talking about -- it happened eight blocks from where I live:  


    With all of the ink spilled opposing a hate crimes bill, it would be nice to hear some of the legal geniuses around here explain how we can charge a man who admittedly beat a gay man to death with more than a misdemeanor.  This is in one of the most gay cities and neighborhoods in America.

    By those standards, D.C. needs to (none / 0) (#10)
    by MO Blue on Fri Jul 17, 2009 at 05:54:50 PM EST
    change their laws to read that it is a misdemeanor for anyone to kill someone if they are "hit on" and find it offensive.

    Could anyone seriously think this defense would fly if a woman killed a man who hit on her because she was offended by it?


    I wonder if Congress found it necessary to (none / 0) (#12)
    by Joelarama on Fri Jul 17, 2009 at 06:28:23 PM EST
    include this same language "protecting freedom of expression when it passed hate crimes laws protecting other minorities?

    I'm sure that it wouldn't have satisfied (none / 0) (#13)
    by andgarden on Fri Jul 17, 2009 at 06:33:19 PM EST
    the KKK any more than it will satisfy James Dobson.

    But these amendments are superfluous, as far as I can tell.


    The point is (none / 0) (#17)
    by andgarden on Fri Jul 17, 2009 at 06:51:28 PM EST
    that the Constitution is supreme law, so this modified statute couldn't supersede it.

    This particular extension of the existing law (none / 0) (#18)
    by KeysDan on Fri Jul 17, 2009 at 06:58:37 PM EST
    has spawned a number of ersatz libertarians, it seems.

    well, don't forget the mission (none / 0) (#20)
    by Jeralyn on Fri Jul 17, 2009 at 08:50:36 PM EST
    of this site is to preserve and protect the rights of those accused of crime.

    That being said, it is just as illegal under current law to murder, rape, kidnap or brutally assault a gay person as someone who is not gay.

    I have no problem with passing civil laws to protect people against hate crimes, or with the feds providing funds to states to assist them in investigating suspected crimes that will be prosecuted in state courts. We just don't need to try these cases in federal court and we should try people for their actions, not the motives behind them, real or perceived.