A Stitch in Haste

To review: Some of my fellow libertarians have suggested that I am flat out wrong walking too fine a line on the subject of hate crimes. They think that all hate crime laws are "punishing thought." I think -- in fact I know -- that we punish the same crime differently in different circumstances all the time and that there is nothing intrinsically problematic with escalating the punishment for an underlying crime (which, despite the shortcut term "hate crime," is not crafting a new criminal offense in and of itself) based on a hateful motive.

Having said that, this fact pattern disturbs me in classic libertarian fashion:

A white man accused of driving past a group of black civil rights activists with two nooses dangling from the back of his pickup truck has been indicted on federal hate-crime and conspiracy charges, federal prosecutors said Jan. 24.
...
"It is a violation of federal law to intimidate, oppress, injure or threaten people because of their race and because those people are exercising and enjoying rights guaranteed and protected by the laws and Constitution of the United States," said Donald W. Washington, the U.S. Attorney for the Western District of Louisiana.

Not exactly. The federal law is 18 U.S.C. 245. The relevant text is:

Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with ...

followed by a comprehensive list of "federally protected activities."

One of those activities is "participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate" -- i.e., a civil rights rally. Point conceded. But circle back to the required act: "by force or threat of force." Sorry, but I think, as a matter of reasonableness (not to mention the First Amendment), driving past a rally with two nooses on your truck simply does not rise to the level of using "force or threat of force." More is needed.

If there had been a more proximate display (e.g., brandishing weapons or shouting unambiguous threats), then perhaps the incident could rise to prosecutable "force or threat of force." There is no right to shout "String 'em up!" in a crowded theater, and there is no right to hide behind the First Amendment when you criminally assault someone (i.e., instill a fear of immediate harm); neither is there a right not to have such an bona fide assault escalated to a hate crime if the facts support it.

But there must be, as a matter both of law and free speech rights, a showing of an underlying offense that is objectively proscribable before any questions of the propriety of adding a hate crime charge are introduced. That burden does not appear to have been met here.

That's my ruling -- any dissents?