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Date:         Fri, 18 Dec 1992 19:21:00 EST
From:         JCOCURUL@DREW.DREW.EDU
Subject:      Re: Hate Speech is back [Argument against the
Comments: To: politics@ohstvma.bitnet

I'll be gone for vacation by tomorrow, so I won't be able to answer
any replies after tomorrow morn.  So happy holidays to all, and go
ahead and debate words, have ad hominem attacks, etc. with wild
abandon until I'm back in the last week of January. And happy hanukkah
a day early to all who practice it.  And Ellen forgive if I quote much
of what Jamie says since it is relevant.

In article <tfilt426163@drew.edu>, Jamie <PL436000@BROWNVM.BITNET> writes:
>>From:         JCOCURUL@DREW.DREW.EDU
>
> Joe, something's going wrong here. I made a point, and I think
> your answer ignored it rather than answering it. I found this
> awfully surprising, so I think I must have misunderstood. But
> I read your answer again, and I still don't see it.

This seems to be a compliment to my usual state of affairs, but anyhow
it is distressing.  Let me see if I can help.

[me]
>>not here.  here what is being done is that the state is "directly
>>punishing what the legislature has deemed to be offensive thought, and
>>violates the First Amendment indirectly by chilling free speech" [from
>>a column by Nat Hentoff, Village Voice 8/4/92]
>
> Ok, I do understand this. But although understandable, it is false.

how reassuring
>
> The legislature isn't directly punishing offensive thought. It has
> said that the same crime performed with one sort of intention is
> more odious than if performed absent that intention. That is
> precisely the distinction between (some) kinds of manslaughter.

Sure it is.  That is what you just said -- the same crime performed is
more odious because of the intention of the criminal.  Sure the courts
dwell on intent a lot of times (ex. manslaughter), but here the law
says that belief [protected by the first amendment] should enhance the
punishment.  Not that the criminal intended to do a crime in advance
(1st degree murder over 2nd), but believed something.  If I believe
murder is ok for Jews, how can I be punished for this fact if I kill a
Jew, and still have first amendment rights?  Now, yes, my belief can
be used to prove I'm liable to be the one to do it, but it can't add to my
crime.  The reason why the hate law at issue is unconstitutional is
not just because it is vs. offensive thoughts, but because it chills
free speech and belief via _indirect means_.

>>The problem here is
>>that the state has to dwell in the mind of the accused, and has the
>>ability to use the accused opinions and thoughts against him.
>
> Again, that is EXACTLY what it has to do when determining whether
> a crime was murder or manslaughter.

again for manslaughter it is intent, not the opinions of the killer.
1st degree murder - planned to kill, 2nd degree -- kill spur of the
moment, manslaughter -- didn't mean to kill but only assault, similar
break down, involuntary/negilgent -- kill by illegal carelessness ex.
drunk driving, ok -- defense/accidental.  Belief doesn't divide murder
from manslaughter. [intent is more important in sentencing esp. for
the death penalty, see below]

> That's simply wrong.
> The subjective opinions are NOT a crime in themselves. Absent the
> attack, there would have been no crime at all. Rather, they are
> aggravating factors. And again, intentions are exactly the
> aggravating factors distinguishing some degrees of manslaughter.

Aggravating factors are a form of crime.  It adds to the crime and
makes the crime worse, so for instance planning for a murder is a
crime in itself.  At any rate, I'm willing to admit to them being
aggravating factors.  Again, aggravating factors can't be based on
subjective opinions/belief, racist opinions can't be used to add to
the punishment to an attack because then your first amendment rights
are violated.  Racist opinions can't be protected by themselves, and
then not protected if they incline you to commit a crime.  Also again,
the intentions that distinguish some degrees of manslaughter aren't
based on belief.  Name a degree of manslaughter that is defined by the
opinion of the killer.  Aggravating factors that add to manslaughter
to allow death sentences include wantonly killing, killing in a
heinous matter, and killing without any decency.  These don't
include "killing for bigotry, killing since I think homosexuals are
inferior, and killing for sexist reasons."
>
> Speech can be used to show that the accused is racist. That is PRECISELY
> what is done in Wisconsin.

and the state court voted the law down! the decision supported the
right to be a bigot.

> Whether an act of intercourse counts as rape (in some states) depends
> precisely on the state of mind of the rapist. It depends exactly
> on what he believed at the time.
>
> The first amendment doesn't nullify mens rea!

I always thought rape was forced intercourse without consent.  So,
yes, the state of mind of the rapist is relevant (i.e. did he think
she gave consent), but not that he was a sexist pig.  His state of
mind can be used to show he was liable to rape, but it can't add to
the punishment of that rape if he raped for sexist or racist reasons.
Again mens rea is still an accepted concept, but it can't be used to
penalize belief!
   This does not mean the belief that the women in consenting or the
intent to rape or do so in advance, but the belief protected by the
freedom of expression.  ex. sexism

> But courts DO decide these kinds of questions.
> If I have hired no blacks, were my hiring decisions based on racism
> or was it just a coincidence, do my employees all *happen* to be white?

the opinion leads to a discriminatory act, it is that act which is
punished, not the opinion itself.  You seem to think that I'm saying
that intent and belief never can be used by the courts, I'm not.  Only
when it is the belief that is being penalized (here by enhanced
sentences) for itself is it not permissible. If the belief can be used
to prove an illegal act was done (ex. discriminatory hiring
decisions), it is permissible but a racist discriminatory hiring can't
be penalize more than discriminatory hiring based on say nepotism.

> In the actual case at hand, the convict is black, and the victim
> was white.

exactly: PC speech is there to insure groups aren't upset by language
used between them.  This leads to the idea (via equal opportunity PC)
that black convicts who assault whites for racist reasons are worse
than black convicts who assault blacks.  The latter case is not as big
of a problem since political correct connotations don't enter the picture.

[lack of faith in some of my sources of material deleted]
>
> Jamie
>
You didn't examine the problem of finding out when a racist robber
robbed because of racism or because the nearest victim happened to be
the race he/she feels is inferior.  This is where the chilling of free
speech and belief comes in a lot of the time.

       -Joe

P.S. I know there still will be much disagreement, but it can't be
helped.  The issue will probably be back again next year in some form
anyhow.

P.P.S. Another example of popist: Eliot's Resolutions to the English
Parliament in 162_ against supporters of high churchman and popist
sympathizers.
Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU