If the Senate votes this week to support a Kennedy-Smith hate crimes amendment to the Defense Department authorization bill, it will take another step towards fixing a long festering problem.
Almost 10 years have passed since the bias-motivated murders of Matthew Shepard and James Byrd, two young men brutally beaten because of their sexual orientation (in the case of Shepard) or race (in the case of Byrd). These tragic losses were only among the most prominent in the persistent problem of hate crime violence and have helped motivate a long campaign to expand federal jurisdiction to enable effective prosecution of hate crimes based on race, sexual orientation, gender, gender identity and disability.
Enabling the federal government to prosecute such crimes provides a necessary backstop when state and local law enforcement fail. However, since the introduction of the hate crimes bill in 1997, the ACLU withheld support due to the chilling effect provisions of the legislation could have had on the freedom of speech and association. But recent changes to the legislation have fixed these issues.
The Kennedy-Smith hate crime legislation now has stronger protections against misuse of a person's free speech than Congress has ever enacted. It explicitly prohibits the use of speech evidence unless it was specifically related to the crime itself. With this provision now in the legislation, ACLU is for the first time ever supporting hate crimes legislation in the Senate.
The hate crimes legislation accomplishes two crucial changes that ensure equal protection for victims of hate-inspired violence. First, it allows for federal prosecution of violent acts based on a person's race, religion, or national origin, regardless of whether the crime interfered with the victim's participation in protected activities, such as voting or going to school. Second, the legislation broadens federal jurisdiction beyond race and religion to include violent acts committed against people based on sexual orientation, gender, gender identity, and disability. This legislation is a powerful way to ensure equal protection and freedom of association.
The hate crimes legislation punishes only the conduct of intentionally selecting another person for violence because of that person's race, color, national origin, religion, gender, sexual orientation, gender identity, or disability. Hate crimes based on sexual orientation, gender, gender identity, and disability still occur every day. The prosecution must now prove the conduct of intentional selection of the victim. Thus the hate crimes bill, like the present principal criminal civil rights statute, punishes the act of discrimination, not the belief, or bigotry.
The provision will stop the temptation for prosecutors to focus on proving the selection element by showing guilt by association with groups whose bigoted views we may all find repugnant, but which may have had no role in committing the violent act. Evidence of association could also just as easily focus on many groups representing the very persons that the hate crimes bill should protect.
"Guilt by association" has been a repugnant concept to civil libertarians throughout American history. This country has seen individuals persecuted for their beliefs instead of their acts from the red scare and into the civil rights era. Protecting individuals' freedom to associate, and therefore their right to specific beliefs, is a bedrock principle for the American Civil Liberties Union. Such defense of freedom of speech and association, regardless of how repugnant the underlying beliefs, is fundamental to democracy.
The Kennedy-Smith amendment is the right approach. It punishes violence based on specific characteristics, but makes clear that no one will ever end up punished because of a book once read, a meeting once attended, or membership in a club, church, or any other association--unless those activities were directly related to the violent crime itself.
While we pursue violent offenders for violent civil rights violations, we must not sacrifice the fundamental protections of free speech or those rights granted to defendants at criminal trials. The ACLU has a long-standing commitment to these beliefs and is gratified that the legislation fulfills the necessary fundamental protections. We now hope that the Senate acts this week to write these protections into law.