What is the difference between “hate speech” and a “hate crime”? You might think this is a trick question because the First Amendment protects free speech, including hate speech, which means that hate speech is not a crime. However, having realized that there is no easy way round the First Amendment protection of free speech, civil rights activists have resorted to depicting hate speech as “disorderly conduct” or “harassment,” in order to campaign for criminal charges to be brought against people who utter any words that, in their interpretation, amount to hate speech. While hate speech falls under the First Amendment free speech protection, violations of criminal law do not. Civil rights activists see this as an opportunity to make the best use of criminal law they possibly can, spreading the harassment net far and wide to press for prosecution of anyone who offends them:
Harassment is distinct from “hate speech” because it goes beyond mere expression of opinion and targets a particular person for harm. The threshold for speech rising to the level of illegal harassment is generally quite high. Anti-harassment laws often refer to speech directed at a particular person, based on the victim’s race, religion, or other group characteristic, and which has the purpose or effect of substantially interfering with, for example, a student’s educational performance or creating an intimidating, hostile or offensive environment.
Some might derive comfort from the reassuring words that “the level of illegal harassment is generally quite high.” A recent example illustrates how the threshold is understood in practice. A mother from Minnesota has been charged with disorderly conduct under Minnesota Statute 609.72, subd. 1(3), a misdemeanor level charge with a maximum of 90 days in jail and/or a $1,000 fine. It seems that, because she used a racial slur, her less-than-impeccable conduct has been treated as a crime. What was the relevant conduct in this case?
The video shows a woman holding a child being confronted by the man recording her. The man, speaking out of the camera’s view, asks the woman if she called another child at the playground the “N-word.”
The woman begins walking away before turning around and calling the man the “N-word” and making an obscene gesture.
“He took my son’s stuff,” the woman said when the man pressed her.
“So that gives you the right to call the child, 5 years old, a n*****, the ‘N-word?’” the man said.
“If that’s what he’s gonna act like,” the woman said.
As this example shows, a playground altercation involving a misbehaving child has been classified by prosecutors as “disorderly conduct” under the relevant Minnesota law, which states:
609.72 DISORDERLY CONDUCT.
- Subdivision 1.Crime. Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:
…
(3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.
Under similar laws in Florida, three men were charged with felony hate crimes for disrupting Muslims at prayer. One might argue that it is not the worst thing if people who behave badly in public get prosecuted for disorderly conduct, but the point here is that this framing of the crime of disorderly conduct is designed for one purpose only—to criminalize speech. It is not the conduct in itself that was considered terrible in these examples, but the racial nature of the insults—the words used plus the fact that the “victims” were members of what are often described as “racialized minorities.” This is why the campaigns behind such prosecutions are driven and funded by civil rights activists. The NAACP was at the forefront of the campaign for the Minnesota mother to be prosecuted, depicting the incident as evidence that hate is rising across the country. Ironically, the activists at the forefront of complaining about rising hate have turned complaining about hate into an industry which, when all the civil rights organizations and their legal teams are taken into account, is worth millions of dollars. As Murray Rothbard often pointed out, the criminalization of interpersonal conflicts that arise in the ordinary course of human interaction is rooted in the civil rights laws. Describing the “crime” of sexual harassment, Rothbard points out that:
The start of the evil can be pinpointed precisely: the monstrous Civil Rights Act of 1964, specifically Title VII, prohibited discrimination in employment on the basis of race, religion, sex, and other possible characteristics. This horrendous invasion of the property rights of the employer is the source of all the rest of the ills, neocons and sellout Libertarians to the contrary notwithstanding… The next step in the logic of intervention came in 1980, when the U.S. Equal Employment Opportunity Commission adopted regulations defining “sexual harassment” as a form of “sexual discrimination,” and then we were off to the races.
Three important points arise for anyone concerned about individual liberty. First, the purpose of the criminal law is to protect people from those who attack their lives, liberty, or property. It is not there to ensure that nobody is saying unpleasant words to others. Second, for the protection of free speech to be meaningful, “hate speech” should not be prosecuted under the guise of “disorderly conduct.” In these cases it is not the conduct itself that was deemed shocking, but the words uttered. The conduct has been deemed disorderly purely to enable prosecution of those who offended others. Third, it cannot have escaped everyone’s notice that double standards apply. While real criminals remain at large, people who use salty language are charged with hate crimes.
Under principles of the rule of law explained by Friedrich von Hayek in the Constitution of Liberty, the law must not be capricious or arbitrary but must be based on “known rules” that apply equally to all. Hayek traces this principle to ancient Greece, where Pericles said: “the freedom which we enjoy in our government extends also to our ordinary life [where], far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbour for doing what he likes.”
Recent examples show that the enforcement of “disorderly conduct” crimes has departed from that standard. The civil rights activists who campaign for prosecution of those who offend them turn a blind eye to conduct that most people in society would consider criminally disruptive—such as rampant shoplifting and brawling in retail outlets—while campaigning for law enforcement to crack down on anyone guilty of “hate speech.”
