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The big chill

Critics worry about the effects on free speech of recently expanded hate crime laws

The big chill

( Design Pics/SuperStock)

Bill Greenblatt/UPI/Newscom

WASHINGTON-Daniel Scot fled his native Pakistan in 1986 after receiving a blasphemy conviction for converting from Islam to Christianity. He settled in Australia, where he started an organization to educate Christians about Islam-only to be prosecuted again for his speech in 2002, this time by an Australian court.

The Australian province of Victoria had religious hate speech laws at the time, providing higher penalties for any conduct that may "incite" hatred of others on religious grounds. On that basis, the Islamic Council of Victoria brought charges against Scot for his lecture on Islam, and in 2004 a judge sided with the Islamic Council, ordering Scot to pay court costs and take out $70,000 in apology ads in newspapers. An appeals court eventually overturned the ruling in 2006, and the laws have since been revised to protect speech more fully.

Newly expanded hate crime laws in the United States don't have the hate speech language that such laws in Europe and Australia have, but the new laws could allow prosecutors to use speech that allegedly incites hate crimes as evidence in hate crime cases. Those who are concerned about the laws' effect on free speech say that a pastor who preaches against homosexuality could be held to account for his speech if one of his listeners committed a hate crime after a sermon.

The bill, passed by the House on Oct. 8, has protections for speech written in: "Nothing in this division shall be construed to allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs." But there are exceptions, such as cases with a "compelling governmental interest" or if the speech is intended to "incite an imminent act of physical violence."

"Such calculated legislative vagaries have proven time and again to exceed traditional and legal readings, and lead to greater government involvement," wrote Marshall Sana, Islamic expert at the Barnabas Fund, in an email.

Even if speech prosecution doesn't become a reality, the worry persists that these laws could have the effect of chilling speech. Congress passed the laws under the radar, tagging them onto a must-pass defense spending bill in order to avoid inevitable amendments to the bill from the Senate (see sidebar). The bill is a product of three years of attempts to expand laws to include protections for crimes based on sexual orientation.

Gay-rights groups have pushed fervently for the new laws, but they are also likely to be helpful for Muslim groups because they address those who "incite" crimes. Mark Durie, an Australian scholar who testified during Scot's trial, said at a lunch in Washington recently that because Islam does not separate the speech from the person, Muslims tend to believe that others must respect not just them but Islam. "Speech about Islam is a sensitive issue for Muslims and Muslim states," he said.

Anglican bishop Michael Nazir-Ali, a man with a bald pate but white hair ringing his head like unspun wool, has felt the heat of criticism for some of his comments about Islam-though his manner is more lamb than lion. Last year he and his family received death threats after he said that certain Muslim communities in Britain had become "no-go" areas because of threats to non-Muslims. Pakistan-born, he resigned from his position as Anglican Bishop of Rochester earlier this year to work on behalf of persecuted Christians globally.

The British law against inciting religious hatred, he told me, "has had a dampening effect." In Birmingham, England, in 2008, police threatened to arrest two pastors who were passing out pamphlets and talking with youth in a primarily Islamic part of the city, saying they could be charged with a hate crime. "This is a concern about a police state that seems to be emerging more and more-a thought police," he said. "That would be a very regrettable development."

Could the new American laws lead the United States in a similar direction? Alia Malek is a former civil-rights lawyer at the Justice Department and author of A Country Called Amreeka. She doesn't support hate crime laws, but unlike other critics she believes the new laws provide sufficient protections to keep them from being threats to free speech. "We have had hate crimes [laws] for a long time and it hasn't chilled speech. We're not like Europe," she told me. "Jeremiah Wright never got prosecuted, but he got his answer from society." Other critics say that was before the new bill.

The United States established its first federal hate crime laws in 1994, levying harsher sentences on perpetrators of violent crimes based on race, religion, or gender (and now sexual orientation). In theory these crimes deserve higher punishment because the racially motivated murder of an African-American isn't just a murder-it's a threat to the entire African-American community. But there's still debate over whether crimes with different motives should get different sentences.

"To murder is to murder is to murder," Malek said. "I don't personally think that the motive of hate is worse than sadism."

Racial hate crimes were the basis for the Victoria law in Australia that brought Scot to court. Jewish groups were pushing for heightened protection, according to Durie, and because Jewish ethnicity and religion are intertwined, that heightened protection included protection against religious incitement of hate. A Christian's speech about Islam, which ended up being covered by the law, was not the driving reason for the law.

In the United States, too, the expanded laws were not targeted at speech, but chilled speech may be the effect. Gay groups have pushed for protections in expanded hate crime laws-which now cover violent crimes motivated by the victim's sexual orientation. But Congress didn't just add the words "sexual orientation" to current hate crime laws; it expanded the laws to allow additional evidence of bias in hate crimes.

The Muslim community is typically at loggerheads with gay advocacy efforts-most Muslims supported Proposition 8 in California, for instance-but the two camps were allies on this initiative. The Council of American-Islamic Relations (CAIR), one of the principal Muslim advocacy groups in the United States, applauded Congress for extending "broader federal interventions in hate crimes investigations," sentiments that gay advocacy groups like the Human Rights Campaign (HRC) echoed. Neither CAIR nor HRC returned requests for comment.

CAIR has increasingly called for prosecution of hate crimes, citing an uptick in crimes against Muslims. In June, CAIR urged law enforcement to investigate a "bias motive" when a student beat his 14-year-old Muslim classmate. In August, CAIR demanded federal hate crime charges in a case of two men allegedly beating a cab driver and calling him a terrorist during the attack. In September, the organization called on law enforcement to investigate a "bias motive" in a shooting at a Maine mosque.

And when Act! America set up a lecture on extreme Islam, CAIR's spokesman Ibrahim Hooper wrote in a statement that because they are "strong defenders of the First Amendment" they wouldn't ask for the event to be canceled-but they did ask for the San Diego Public Library hosting the event to withdraw its sponsorship.

"No library would-or should-sponsor a lecture by an anti-Semitic, racist or neo-Nazi speaker," said Hooper in the statement. "It is unconscionable that a representative of a group that promotes a similar form of bigotry would be so honored."

High-profile hate speech cases internationally, where laws are in place to prosecute speech specifically, have often concluded in the defendant's favor, as in Scot's case, but the process has been long and expensive.

In Canada, any public speech that "incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace" or "willfully promotes hatred" is liable for prosecution. One of the country's top news magazines, Maclean's, faced charges in 2007 for an article published about the expansion of radical Islam. After months of haggling, several federal and provincial human-rights commissions dismissed the charges. The Canadian parliament is reviewing its menagerie of commissions that hand down hate speech convictions.

The problem for all these countries trying to feel their way forward on policies like hate speech, Nazir-Ali said, is that they have "thin values, not thick values." True liberty, equality, and the dignity of the human person are lost to the nebulous swirl of tolerance, he believes. British policies to accommodate each special group that enters the country, he says, send the message: "We don't know who we are, we don't know who you are, let's live together separately."

Legislator beware

House Republicans have voted against nearly every major initiative the Democrats have put forward-the stimulus bill, the climate bill, the 2009 budget, the 2010 budget. But one thing they may be on the same page with President Obama about is the defense bill supporting troops in Iraq and Afghanistan.

So when Democrats attached the unrelated hate crime bill onto the defense spending bill, Republicans were upset but torn. The defense bill was something they could support; why have a beef with it when President Obama is in the midst of a decision about the future of Afghanistan? And if they voted no, that could be used against them later in campaigns, with ads flashing, "Congressman so-and-so voted against funding our troops."

But a few Republicans pushed back and got 130 of their party's members to vote against the bill, led by Rep. Todd Akin of Missouri, a senior Republican on the Armed Services Committee. To Akin it was clear: Republicans aren't really vulnerable to being characterized as disdaining the military; after all, their support of the war in Iraq is one reason they lost power. Akin's own son is on his way to Afghanistan.

If Republicans voted yes on the defense bill with the unrelated hanger-on, they estimated that Democrats would feel more freedom to attach unrelated legislation to must-pass spending bills.

"This is essentially a form of blackmail," Akin told me. "This is the sort of process that disgusts the American public." The Republican leadership initially intended to vote for the bill, but after a meeting with party members, the leadership voted no, and even spoke vehemently against the backdoor procedural move.

"I've supported every defense authorization bill that's come before this body, so I rise with a heavy heart to say that I will break that tradition," said Rep. Mike Pence, R-Ind., in a floor speech. Pence leads the Republican Conference. The bill, he said, is "piling liberal social priorities on the backs of soldiers."

"Our objective wasn't to go after hate crimes, but the procedures," said Akin. After Akin gave a furious speech on the floor, Missouri Democrat and Armed Services Chairman Ike Skelton, normally composed, dropped a comment near a live microphone: "Stick it up your [expletive]." Akin responded lightheartedly afterwards: "We're seeing whether that was a hate crime."

Emily Belz

Emily Belz

Emily is a senior reporter for WORLD Magazine. She is a World Journalism Institute graduate and previously reported for the The New York Daily News, The Indianapolis Star, and Philanthropy magazine. Emily resides in New York City. Follow her on Twitter @emlybelz.