From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: What is a "hate crime"?
Organization: University of Colorado, Boulder
Distribution: co
Date: Sat, 23 Jan 1993 18:43:54 GMT

In article <1993Jan22.005250.2855@mnemosyne.cs.du.edu> smorine@nyx.cs.du.edu (Suzanne Morine) writes:
>>Panting a swastika on someone's car is, in my opinion, vandalism. If
>>you distinguish between a swastika and, say, "Kilroy was here", 
>>you are now considering the message implied act. I think this falls
>>into two catagories: It either is, or is not, an implied threat. 
>>If there is an applied threat, "Assault" (threatening violence) can
>>be added to the charges.

>In my ideal world, it'd have to be shown in court that the perpetrator
>knew what the swastika meant to the victim and used it in order to make
>him/her feel marginalized and even to send a message to the larger
>group s/he belonged to.

In that case, I don't see why we shouldn't make use of the existing
laws: If you can prove that the act was a threat, then it is
criminal assault as well as vandalism. If your ideal law would
require proof in court of such an intended message, how would
it be different from an assault charge? It seems to me that using
the law against assault in this was would accomplish the same
thing, without having to solve the very messy question of government-
regulation of political expression (as well as the issue of
"hate crimes" that the law consider: Anti-semitic and -black slogans
would no doubt be considered, but what about anti-Hindu ones? Although
less frequent in the United States, there is a great deal of malice
between the Moslems and Hindus, and a "hate crime" of this sort
is no better than one directed against blacks. Since the law
can't identify all forms of hate, it would inevitably and unfairly
pardon "hate crimes" that weren't covered. This problem is avoided
if the charge of assault is used instead.)

>>However, making vandalism for political reason X a more serious crime
>>than vandalism for political reason Y (i.e. spray patinting "Niggers
>>go home" versus "Vote for Clinton") _would_ be a First Amendment 
>>violation, since it would be a government-sanctioned condemnation
>>of one political statement. The means of communications, vandalism,
>>is in itself a crime and can be prosecuted as such without reference
>>to the content of the message.

>But a threat is the content of a message, so there's certainly a gray
>area here.  I think "Niggers go home" is threatening.  A Republican may
>find "Vote for Clinton" threatening (they could wonder if there's an
>unstated "or else" message in there).  

In which case, a charge of assault could be pressed, and the jury 
would decide if the act was a threat.

>...I think that burning a cross in
>a black family's yard is more than just unlawful burning and tresspass
>(or whatever); I think the implied threat in the burning is much worse
>than the physical act itself.

I _think_ assault is currently a more severe crime than criminal tresspass
and violations of the fire codes...

>I've only been exploring ideas of what might be useful about a "hate crime"
>distinction.  A kind of idealized view.  I get the impression you are talking
>about actual laws in Colorado, though.

No, I wasn't thinking of any specific Colorado laws. I was drawing on
other "hate crime" laws I've heard about in other states, and reasoning
along the lines of, "If we passed that sort of law..."

                                                Frank Crary
                                                CU Boulder