October 9, 2023

America appears to be becoming a society with fewer and fewer laws, or at least not enforcing those that remain on the books.  We have decriminalized “recreational” drugs and reduced felonies into minor misdemeanors while ignoring open looting and rioting save in certain politically charged circumstances.  Cities have downsized their police departments while no longer prosecuting quality-of-life offenses such as public urination.  Filth and open drug markets are now tolerated as just part of urban life.  

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Yes, the criminal code has obviously been eviscerated, but the impetus for greater criminalization gains momentum elsewhere.  This new focus on crime centers on “hate” as the paramount evil facing society.  Now “bad thinking” apart from actual behavior becomes the target of law enforcement.  Criticize Islam’s treatment of women, and you are called Islamophobic; defending it makes you a sexist.  For some, mis-gendering a trans person is hate speech.  Countless colleges now enact speech codes to shield students from psychologically harm.  In fact, such hate — not behavior — has been characterized (p. 95)  as a poison that psychologically debilitates its victims, causing high blood pressure and drug addiction.  We now enforce laws against what Orwell called “thoughtcrime.”  

To use an extreme but hardly inconceivable possibility, a local Progressive district attorney would likely dismiss charges against those robbing a 7-11 convenience store or at least reduce the offense to a minor infraction without jail time.  But if the clerk shadows a young black who enters the store (“racial profiling”) and waves around a baseball bat, he might be accused of race-based hatred.  Thus, at least for the Progressive D.A., the clerk, not the would-be miscreants, must be punished.  And this would occur even if the clerk did not physically injure the would-be thief or bar him from entering the store.  In fact, woe to the clerk if he shoots that would-be black shoplifter in self-defense.  The victim (the shopkeeper) now becomes the criminal while the shoplifter is transformed into the victim thanks to hate crime laws.  

In addition, what defines “hate” is not actions per se; everything depends on the identities of those involved, so a simple mugging can radically change its meaning depending on who is the assailant and who is the victim.  Hate becomes central when people belonging to certain protected classes are involved according to their appearances and personal identities.  Though protected class status can be ambiguous, it is generally interpreted to include women, people “of color” (blacks, Hispanics, Asians, and Native Americans), the physically disabled, and groups who have been historically stigmatized for their sexual preferences.  Members of religious groups with distinctive forms of dress — for example, Muslims and Hasidic Jews — might be included.  In the above hypothetical, the situation would be totally reversed if the would-be criminal were a rich white male and the clerk a black lesbian.  Note that existing anti-hate laws have no provision for crime committed against whites due to hatred of whites, though such animus surely exists.

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Our legal code labels criminals according to the crimes they commit, so we have murderers and arsonists.  In a hate-based crime, however, labels apply to the perpetrators — for example, homophobes, white supremacists, transphobes, sexists, and of course the most terrible of all accusations: racist.  The nature of the “crime” is thus defined by the wrongdoer’s motive, so those verbally abusing someone who is gay are guilty of homophobia, whereas the exact same abuse would be classified as racist if directed at a black person.  This is the equivalent of classifying murder according to who was killed, not the act itself. 

In the same way that murder can be committed with any number of weapons, a multitude of ways exist to inflict hate.  These can range from verbal remarks — for example, telling a gay person that homosexuals are mentally ill — to merely stating a statistical fact that blacks disproportionately commit crime.  In both instances, the statements inflict discomfort on the victim and are thus classified as “hate.”

Tellingly, even the most innocuous comments can be hateful, since everything depends on the personal interpretation of those in the protected group, not necessarily what the “hater” intends.  The multi-billionaire Kenneth Griffen’s son was reprimanded at his school for saying that an Asian classmate was “good at math.”  The compliment was deemed “offensive stereotyping.”  Truth was irrelevant.  These inadvertent, seemingly harmless remarks are called micro-aggressions and judged a form of “hate.”  

Hate can also be expressed through inanimate objects.  The battle flag of the Confederacy is now widely banned as a symbol of hate since it, allegedly, glorifies a political order that brutalized African-Americana and thus will trigger painful reactions among today’s blacks.  Meanwhile, college campuses abound with anti-hate campaigns that demand shouting down “offensive” speakers, creating anti-bias squads to spy on students uttering derogatory remarks about those in protected groups, and scrutinizing syllabi for offensive language.

The criminalization of hate is far more than quibbling over words and symbols.  There are real consequences.  In 2021, the Department of Justice recorded a national total of 7,262 hate crime incidents involving 8,673 offenses, the vast majority of which involved race or ethnicity.

According to the DOJ’s official website, the object of hatefulness can depend on the victim’s race, color, religion, national origin, sexual orientation, gender, gender identity, or disability.  In practice, this increases the odds that almost any physical attack risks becoming a hate crime.  But how can a would-be mugger know that his victim is protected by an anti-hate law?  Might an assailant ask, “Are you Asian?” prior to pushing him off the subway platform to avoid violating a hate crime law?  Worse, 47 states criminalize hate, each having its own definition of who is protected by anti-hate laws.