Four college freshmen (two UW students, two visiting students from Auburn and Purdue) are being threatened with hate crime felony charges'three years in the slammer along with $20,000 in fines, if convicted'for vandalizing LGBT materials, loudly shouting their strange views, and scaring an LGBT liaison in Ogg residence hall. Because the four were motivated by a hatred of 'faggots,' they may be charged with felonies rather than misdemeanors and their sentencing, if convicted, may be enhanced under Wisconsin statutes. A felony charge may be too strong for this sort of stupid harassment and vandalism.
What if the Ogg Four had vandalized an RA's whiteboard out of hatred for RAs? The Ogg incident shows that we Americans all too often suffer an inability to see crime for what it is when discrimination is involved. Even in the worst hate crime cases we should punish the act, not the motivating belief.
Consider hate crime law in light of the First Amendment, which prohibits Congress from passing laws 'abridging the freedom of speech' and thereby guarantees freedom of belief in the face of government predation. Freedom of belief is essential to liberty and liberal inquiry, arguably the best method of gaining knowledge. As Jonathan Rauch shows in his 1993 book, 'Kindly Inquisitors,' the alternative to freedom of belief is authoritarianism, where knowledge derives not from debate but from the unchallengeable declarations of a Pope, a Koran or a 'Unitary Executive Power' in the White House. On the level of our Ogg vandals, this is not to say the government should not punish action and intent'only that the government should not punish motivation.
Disturbingly, prosecutors define the Ogg Four's crimes as felonies precisely because of their homophobic motivation. In a country subscribing to the First Amendment, that punishment should seem odd. Yet any oddness is in keeping with our history.
For most of our past, the government has let hate crime go unpunished. Our leaders have sent official armies out into the 'wilderness' to kill Indian 'savages' or hired Indian-hunting mercenaries, such as the outfit fictionalized in Cormac McCarthy's 1985 novel 'Blood Meridian.' In the pre-war North, mobs rioted against abolitionists, as Harriet Beecher Stowe witnessed in Cincinnati, Ohio, in 1836. In the post-war South, officially condoned lynching was rampant. In 1934, for example, a Florida lynch mob castrated, roasted, impaled, shot and hung Claude Neil, a black man arrested for the murder of a white girl. Advertised in local newspapers as a picnic-for-the-family event, Neil's killing attracted crowds of happily morbid spectators but not the Florida police, U.S. marshals or FBI agents.
The Ogg Four's alleged crime does not compare with the monstrous hate crimes of our past. Yet the crimes of the past and of the Ogg Four share something besides their motivation in discriminatory beliefs. When black men were lynched, the racism of whites in government prevented them from seeing the crime for what it was'torture and murder. Today, though far, far less severely, our well-intentioned politics prevent us from seeing the Ogg Four's alleged crimes for what they are'misdemeanors, not felonies.
Moreover, our politics are arguably just that, and nothing more. Meaning, hate crime law does little to help minorities. It is doubtful that such law deters hate crimes. According to FBI statistics for the year 2004, there were 7,649 hate crime incidents'practically the same as the 7,947 incidents reported in 1995, only three years after Congress created the category of hate crimes within U.S. Code.
Hate crime law like Wisconsin's is mostly symbolic'if lawmakers want to help minorities, they should address non-symbolic issues like housing segregation, employment discrimination, law enforcement (over 52 percent of those in jail are minorities), K-12 education, the increasingly prohibitive cost of attending elite campuses like the University of Wisconsin-Madison, or the fact that our last presidential election hinged on 'family values' homophobia.
Hate crime law at its core is a gentle species of authoritarianism whereby the government is empowered to penalize a criminal's motivating beliefs. Instead, as the First Amendment holds, we should protect all beliefs from government penalty, even hateful, untrue beliefs, and even in circumstances where it seems so easy, as in the case of the Ogg Four, to see such beliefs as transforming crime into something more than punishable action.
