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Criminalizing Speech

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By Richard Cohen
Thursday, August 18, 2005

NEW YORK -- New York is a blue state. New York City is a very blue city, the unofficial capital of liberalism, civil liberties and civil rights. So it may surprise you to learn that in New York a person can be prosecuted for a political crime. That is happening right now in two different cases. They both involve attacks on black men by -- how shall we say this? -- non-black men. The suspects are charged with hate crimes.

One of the suspects is named Nicolas Morse. He is reportedly a one-man melting pot -- half-Chinese, half-white with a sister who's half-black. A neighbor tells the press, "He's not racist." Maybe not. But because Morse was allegedly one of a group of men who set upon a black man with baseball bats and iron pipes while uttering racial epithets, he and the others have been charged with a hate crime. That means he can spend even more time in jail than if he merely used sticks and stones to beat someone and failed to call him a name, as we used to say. In 45 states and Washington, D.C., the "name" is now a crime.

I hold no brief for Morse, if he is guilty. But as with a previous hate crime incident in June, the police hurried to apply the designation before all the facts were in. Suffice it to say that in both cases, what seemed a simple bias attack may have been more complicated -- by previous run-ins, for instance. No matter. The police chief, Ray Kelly, stuck to his guns. "We know that racial epithets were used," he said after Morse was arrested.

Kelly's remark was, to say the least, politically astute. There is a mayoral election coming up, and everyone in this town recognizes the political influence of the Rev. Al Sharpton. He has emerged as a power broker, so much so that in this week's mayoral debate, all the Democratic candidates said they would seek his endorsement. It was Sharpton who, in 1986, led a protest march through the Howard Beach section of Queens after three black men were attacked there -- and one of them was killed after running into traffic. No one wanted a repeat of that -- not the ugliness of the reception the march received, not the heightening of racial tension that followed. Hate crimes were charged all around.

I do not find it hard to believe that the accused in both cases may be first-class bigots. I just find it beside the point. Beating someone with baseball bats and iron pipes has long been against the law. Assault is a crime. Battery is a crime. Murder in all its gradations is a crime. What does it matter what words are spoken in the course of the crime? Is the injury to the victim greater?

Ah, but we are told it is not only the injury to the victim that matters but the injury to the community as well. A hate crime affects an entire group. I suppose sometimes it does. But so does ordinary crime. When a rapist is loose in a particular neighborhood, all women are affected. When criminals stalk the park, everyone keeps out. In that sense, hate crimes just affect a different -- or another -- group. I understand. But it is a dangerous concept. It punishes speech. It punishes thought. It punishes on account of the word blurted out in the heat of the moment -- maybe not an indication of bigotry but merely what comes to mind when the mind itself is engulfed with rage.

As if to show how absurd the hate crime law can be, Jeanine Pirro, the Westchester County district attorney (and now a Republican senatorial candidate), last month charged a deranged and homeless black man with a hate crime -- as well as all the usual stuff -- for murdering a white woman only on account of her race. Since the man was both insane and already being prosecuted for murder, it's hard to say what the additional penalties could be. But Pirro later announced that Sharpton had called her and urged that she prosecute the case "vigorously." Sharpton, you will be relieved to know, is against bigotry "irrespective of the side from which it comes," Pirro said. The man is, well, a prince.

Making hate a crime reflects the political power of the injured groups -- gays, Jews, women, blacks, etc. But that political power -- and not the crime itself -- is why defendants in New York and across the country stand in jeopardy of additional penalties. The punishment here does not fit the crime. It fits the thought.

cohenr@washpost.com


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