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PaperclipPerfector  1yr ago (text post)   30106 thread views

Culture War Roundup for the week of August 21, 2023

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Let's taboo "thought crime". It's just meant to be a convenient label / handle, but with extra salience from Orwell's 1984.

A thought crime emerges when one group of people decides that if a person is suspected of believing X, then that person should be punished.

I'm talking about society's seemingly reflexive need to punish wrongthink. This is corrosive because it's very difficult for society or its agents to determine exactly what an individual thinks. Furthermore, only acts (and not thoughts) have relevant consequences. We generally think it's ok to wish harm on one's neighbor for a brief moment.

Simple examples of thought crime include hate crimes, hate speech, accusations of being a racist rather than doing a racism.

Simple examples of thought crime include hate crimes, hate speech, accusations of being a racist rather than doing a racism.

In the US, at any rate, hate speech is not illegal. And "hate crimes" are crimes in which the victim is chosen because of his group membership (real or perceived). No hatred or other ideas need be shown. In that sense, a hate crime enhancement is not very different from a gang crime enhancement. Neither is really a "thought crimes." The problem is really the last one on your list, better known as cancel culture.

I thought the context of this punishment was extrajudicial canceling, etc. Not that the criminal justice system prosecutes wrongthink.

That is what I thought, until he explicitly mentioned hate crimes.

As I've attempted to demonstrate in another reply, I mean hate crimes in the colloquial sense, not necessarily the statutes in the US (but possibly so). When people described the Jussie Smollett hoax initially as a hate crime, I don't think it was a claim that the crime would meet the statutory burden for a hate crime, and I think they are largely describing a thought crime on top of a purported actual crime of assault or whatever.

I think they are largely describing a thought crime on top of a purported actual crime of assault or whatever.

I think you need to be more clear about what renders some crimes motivated by the victim's group membership a "thought crime" and others not.

Sure. I don't think most people who call JS a "hate crime" are making a claim about how the victim was selected. I don't think they understand the statutory burden to declare an act a "hate crime". When people call JS a "hate crime", they are saying "they attacked JS because he was black, because they hate the blacks". This is a different sort of claim, and it revolves around thought crime.

In the US, at any rate, hate speech is not illegal.

But it sure is punished. The test is not illegality but punishment.

And "hate crimes" are crimes in which the victim is chosen because of his group membership (real or perceived). No hatred or other ideas need be shown.

I am rather certain I can find examples in the US in which someone was charged with a hate crime, possibly convicted, where it is simply not possible to know why the victim was chosen. By your standard, any typical rape of a woman is now a hate crime, as the female victim was chosen because of her membership in the group of women. I believe the intent and wording of hate crime statutes go beyond your standard and presume to read the mind of the perpetrator, mostly as inference from actual acts (speech or otherwise) committed.

By your standard, any typical rape of a woman is now a hate crime, as the female victim was chosen because of her membership in the group of women

It isn't my standard; it is what the laws typically say. See Lucas v. United States, 240 A. 3d 328 (DC: Court of Appeals 20200 ["the District's Bias-Related Crime Act is different from most states' hate-crime laws, in that the "majority of [state] statutes define a hate crime as one in which the actor committed the offense because of,'by reason of,' or `on account of'" another person's race or other protected status." Zachary J. Wolfe, Hate Crimes Law § 3:8 (June 2019) (surveying statutes). Instead, the "demonstrates ... prejudice" language of the District of Columbia's Act does not expressly require a causal connection between bias and the criminal act and would appear to punish "the fact of being prejudiced," Shepherd, 905 A.2d at 262-63, thus raising constitutional concerns."]

And courts are not that dumb. Breest v. Haggis, 180 AD 3d 83 (NY 2019) ["not every rape is a 'gender-motivated hate crime'").

  • I believe the intent and wording of hate crime statutes go beyond your standard and presume to read the mind of the perpetrator

Yes, of course they ask the jury to read the mind of the perpetrator; almost every criminal law requires that, because they typically require the jury to determine [the mental state of the perpetrator[(https://www.findlaw.com/criminal/criminal-law-basics/mens-rea-a-defendant-s-mental-state.html) (did he intend to steal? Did he intend to kill? Did he believe that his life was in danger? etc, etc, etc, etc). The issue is what mental state the law asks the jury to infer:1) the defendant's views about race/whatever (ie. wrongthink); or 2) the reason the defendant chose the particular victim. it is number 2.

And the broader point is that your legitimate concern gets lost if you start throwing in hate crimes per se as a putative example. See, eg, the facts of Wisconsin v. Mitchell, 508 U.S. 476 (1993):

On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartment 480*480 complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture "Mississippi Burning," in which a white man beat a young black boy who was praying. The group moved outside and Mitchell asked them: "Do you all feel hyped up to move on some white people?'" Brief for Petitioner 4. Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: "You all want to fuck somebody up? There goes a white boy; go get him.'" Id., at 4-5. Mitchell counted to three and pointed in the boy's direction. The group ran toward the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days.

Mitchell was convicted of aggravated battery. Wis. Stat. §§ 939.05 and 940.19(1m) (1989-1990). That offense ordinarily carries a maximum sentence of two years' imprisonment. §§ 940.19(1m) and 939.50(3)(e). But because the jury found that Mitchell had intentionally selected his victim because of the boy's race, the maximum sentence for Mitchell's offense was increased to seven years under § 939.645. That provision enhances the maximum penalty for an offense whenever the defendant "[i]ntentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person . . . ."

That is an example of someone's punishment being enhanced because of the basis on which he chose his victim, rather than because he held "improper" ideas about race .

I suspect there is a bit of motte and bailey going on, where there is lots of activity in the bailey that I find concerning, but your position is wrapped up tight in the motte.

For example, two women were charged with a hate crime for burning a Trump sign. Arson is the underlying crime, with apparent hatred (towards what protected group?) adding an additional hate crime: http://web.archive.org/web/20210624142206/https://www.baltimoresun.com/news/crime/bs-md-trump-sign-charges-20170418-story.html

Princess Anne police have charged D'Asia R. Perry, of Baltimore, and Joy M. Shuford, of Owings Mills, both 19, with multiple offenses, including second-degree arson and committing a hate crime, the Maryland State Fire Marshal's Office said.

"The intentional burning of these political signs, along with the beliefs, religious views and race of this political affiliation, directly coincides with the victim," a Princess Anne police officer wrote in charging documents to support the hate crime charge.

By committing arson, "in doing so, with discrimination or malice toward a particular group, or someone's belief," was the reasoning for charging the women with a hate crime offense as well, said Caryn L. McMahon, deputy chief fire marshal.

Here is another take on hate crimes in the US: https://mises.org/wire/how-much-problem-hate-crime

However, one major problem with this is how hate crime is defined. According to the FBI, “A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias.” The underlying problem with this definition is it elevates non-criminal activity to the level of a crime. Spray painting a phallus on the side of a building is vandalism. Spray painting a swastika on the side of a building is a hate crime. To get a true understanding of hate crime, the underlying action must be fully understood.

This reads more like the bailey I am familiar with. Is it possible that the bolded section is true? Can painting a swastika on the side of a building be considered a hate crime? Not in the motte. What about in the real world?

Here is the state of NJ, according to the ADL (Anti Discrimination League, Jewish): https://www.adl.org/resources/media-watch/hate-crime-laws-cover-everyone

Hate-crime laws protect everyone, not just Jews, as the letter writer incorrectly claims. New Jersey’s hate-crime law defends all citizens from any crime committed because of race, religion, ethnicity, gender, sexual orientation, gender identity or disability.

Bolding mine. It looks like the typical rape is a hate crime in NJ. Obviously this is not an accurate summary of the statute, and the ADL does not have the definitive take. Take the Jussie Smollett hoax. Widely described as a hate crime, but without any of the necessary evidence like "watching a racially charged movie beforehand, then discussing hey let's beat up that black Empire faggot".

One more clarification: Hate-crime laws only apply when there is an underlying crime to prosecute. The First Amendment protects speech — even bigoted and ignorant speech like the letter writer’s — and ADL staunchly defends this vital democratic freedom.

Biased language must be combated with positive speech from community members and leaders. But when someone goes beyond speech and commits a crime inspired by hate, then hate-crime laws have a vital role to play in ensuring justice and protecting the entire community.

Note ADL says the crime must be inspired by hate. That's not in the motte. Again, non-definitive, but still, there is a concept of a hate crime which is largely thought crime.

Here's Oberlin College: https://www.oberlin.edu/campus-resources/bulletins/condemnation-anti-asian-violence

Tips from Stop AAPI Hate on what to do if you experience hate and how to safely intervene when you see harassment or a hate crime taking place. (SMART Program, San Francisco, CA)

So Joe Random Blogger is going to somehow witness a "hate crime", including the watching of a racially charged movie beforehand and then the witnessed discussion to target someone because of their protected category, and be able to rightfully intervene?

Spray painting a swastika on the side of a building is a hate crime

No, it isn't. It might be evidence that the victim was chosen because of their religion, but simply spraying a swastika is not a hate crime. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) and Virginia v. Black, 538 U.S. 343 (2003).

It looks like the typical rape is a hate crime in NJ.

The law in NY is the same. Again, courts are not stupid.

Take the Jussie Smollett hoax. Widely described as a hate crime

An odd example, since the fake facts, had they been true, would IIRC have been evidence that he was targeted for his race or sexual orientation.

Note ADL says the crime must be inspired by hate

They are wrong. Did you see my quote from the DC Court of Appeals, describing how most states define hate crimes? Who do you think knows the law better, the ADL or the DC Court of Appeals? Who has an incentive to be inaccurate?

Here's Oberlin College

I don't understand. The link doesn't define hate crime.

So Joe Random Blogger is going to somehow witness a "hate crime", including the watching of a racially charged movie beforehand and then the witnessed discussion to target someone because of their protected category, and be able to rightfully intervene?

The law does not provide a greater right to intervene re hate crimes.

For example, two women were charged with a hate crime for burning a Trump sign

Did you not see the link to the article saying that the charges were dismissed?

While I'm willing to concede for the sake of argument that "statutory hate crime" is carefully defined to avoid constitutional issues, I am talking about "hate crime" in the colloquial sense, as gets reported on in the news etc as demonstrated by my several links.

Briefly:

  • Swastika: agreed, it can be a small piece of evidence but is insufficient on its own
  • Typical rape: agreed, the statutes appear to require evidence (nearly impossible to obtain in most cases) that the victim was selected as a representative of the larger group. Typical rape wouldn't meet this.
  • Jussie: I think shouting "nigger" or "faggot" during the underlying crime is insufficient. I think we're going to need Mississippi Burning style evidence.
  • ADL: Prior agreement that they are not the arbiter of "statutory hate crime", but they very well represent colloquial "hate crime"
  • Oberlin: Like the ADL, they are using "hate crime" in the colloquial sense, not necessarily the statutory sense. It's hard to imagine they are recommending students make a legal determination of a hate crime.
  • Baltimore: It's amazing they were charged at all. I agree the case did not meet the statutory burden, obviously so, yet it's strange that the article was so credulous.

I think these illustrate that the colloquial sense of "hate crime" dominates the "statutory hate crime" in human discourse. I also believe that without the constitutional protections in the US, hate crime statutes in Europe adhere more to the colloquial sense. Note further that the FBI (not necessarily a statutory authority) was quoted in one of the linked pieces:

A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias.

T H O U G H T C R I M E

Jussie: I think shouting "nigger" or "faggot" during the underlying crime is insufficient. I think we're going to need Mississippi Burning style evidence.

Well, I think it depends on the context. I seem to recall a hypothetical online in which a guy grabbed a woman's purse and, when she resisted, said, "let go, bitch." That does not seem to be evidence that the crime was motivated by gender. OTOH, if someone is minding his own business and some stranger assaults him out of nowhere, and calls him "nigger," that is stronger evidence that his race was a motivating factor.

Oberlin: Like the ADL, they are using "hate crime" in the colloquial sense, not necessarily the statutory sense. It's hard to imagine they are recommending students make a legal determination of a hate crime.

  1. I don't see how you can infer from the link what they meant
  2. It is perfectly reasonable to encourage students to report what they think is a hate crime, and then let the police sort out whether it really is. It is pretty standard operating procedure to encourage people to report if there is any doubt. Eg: "see something, say something."

I also believe that without the constitutional protections in the US, hate crime statutes in Europe adhere more to the colloquial sense.

The International Convention on the Elimination of All Forms of Racial Discrimination actually requires ratifying countries to "declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;" although countries can enter reservations thereto, as the United States has.

Note further that the FBI (not necessarily a statutory authority) was quoted in one of the linked pieces:

A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias.

T H O U G H T C R I M E

I don't know about the link, but this 2021 FBI statement says:

A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias. The FBI defines a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

So, again, an obvious example is the assault in the Wisconsin v. Mitchell case. I don't know why that is "thought crime." It is not the thought that is being penalized, but the action and motive. Most people, I think, consider a crime motivated by racial hatred to be more morally culpable than a crime motivated by most other reasons. And it is not unusual to add punishment for particularly morally egregious motives. See, eg, the list of special circumstances that, in CA, render a murderer eligible for the death penalty: Murder carried out for financial gain; murder of a govt official in retaliation for the performance of his duties, murder for the purpose of silencing a witness; murder to further the interests of a street gang.

(2) It is perfectly reasonable to encourage students to report what they think is a hate crime, and then let the police sort out whether it really is. It is pretty standard operating procedure to encourage people to report if there is any doubt. Eg: "see something, say something."

If the intervention is merely "say something" then this is entirely sensible. I suspect the intervention recommended requires more culpability in order to defend.

In practice "hate crimes" in the US simply work around the constitutional restrictions. You make a huge hate crime enhancement to a minor crime that's rarely prosecuted, and bam, constitutional viewpoint discrimination. Write "black lives matter" on the sidewalk in chalk, no problem. Draw a swastika instead, well that's petty vandalism plus a hate crime enhancement which makes it a felony, go directly to jail and the courts don't care.

Um, sure, maybe, but care to substantiate?

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