Newsgroups: bit.listserv.politics
Date:         Fri, 18 Dec 1992 11:12:12 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: Hate Speech is back [Argument against the

>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.

Here's what I said:

>> It should also be abundantly clear that courts (the lower kind, and
>> especially juries) VERY OFTEN have to make findings about the state
>> of mind of a criminal. Don't argue that any penalty that requires
>> a finding about a state of mind is unconstitutional. That will be
>> a very bad argument.

And here's what you said:

>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.

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.

>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.

> It is
>these subjective opinions and thoughts that is the crime -- it adds to
>the punishment of another crime so is seen as a crime in itself -- not
>the original crime (here an attack and robbery).

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.

>     Speech that is used to judge objective acts instead of subjective
>thoughts is a different story. Discrimination by race can be punished
>if it's an objective act ex. firing or not hiring by race, and then speech can
>be shown that the accused is racist.  A rapist is being punished for
>the objective act of rape, and his words can be shown to prove this.

Speech can be used to show that the accused is racist. That is PRECISELY
what is done in Wisconsin.

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!

>he means how will the courts decide if the hate speech effected the
>crime.  If I am poor racist, did I rob because I was racist or 'cause the
>best victim just happened to be black?

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?

>not really.  PC is a major reason why hate speech laws are in
>existence, especially in colleges.  Laws that use hate speech to
>add to the punishment of the crime are connected.

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

>P.S. It is curious to know that both the New Republic and National
>Review both object to such laws, while the Village Voice has mixed
>feelings about them (Hentoff angrily notices this fact).

That's interesting all right.

In my experience, all three of those publications are usually wrong. :-)

(I think the Condorcet Jury Theorem might suggest that when all three
of them agree, they are VERY likely to be wrong. But I might be
using a mistaken assumption about independence....)

Jamie
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