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Lawrence lectures on intent and consequences of hate crimes

By Jaye Han

Section: Featured, News

April 12, 2013

President Fred Lawrence presented a lecture “Words that Stab: Hate Speech under the American Constitution and the European Convention of Human Rights” on Tuesday afternoon at the Heller School.

Lawrence explored the concept of limiting hate speech and balancing free expression.

“Words are more than just what we use to communicate. Words can hurt, wound, frighten and even terrify. There are hateful speech acts that ought to be protected, hateful speech acts that ought not to be protected—that can be punished,” said Lawrence. “How we ought to think about limitations on speech when various rights collide. We are talking about the right of free speech on one hand, and on the other hand, human dignity: the right to be treated equally.”

Lawrence is the author of “Punishing Hate: Bias Crimes Under American Law,” and has written, lectured and testified widely on civil rights crimes as one of the nation’s leading experts on civil rights, free expression and bias crimes.

He said that we should view the prohibition of words more from the context of criminal law and less from the point of view of freedom of speech.

In 1993, the Supreme Court ruled in Wisconsin v. Mitchell that while we can’t punish expression, we can punish conduct and enact stricter sentences for hate crimes.

Lawrence said that a statute stating conduct can be punished while a speech or act cannot can draw an unclear line between expression and conduct.

“If I hold up a picket sign, is that speech or is that conduct? If I express an opinion, is that purely speech? It’s an expressive act, it’s a verbal act,” argued Lawrence. “Trying to put a lot of weight in the expression versus conduct is not going to work.”

What is important, Lawrence explained, is that this statute states that to a certain extent the First Amendment will allow punishment of conduct. “Expression is protected, thought is protected, but we can push back with the argument of conduct—that is the current American regime,” he said.

In pursuing hate speech acts in context of criminal law, Lawrence emphasized the importance of intent in hate speech acts. He argued that rather than focusing on the external consequences of the speech, one should focus on the internal behavior and the state of the mind of the actor.

“The consequences are irrelevant. The consequences will often help us understand culpability, but the focus of our consideration ought to be the culpability of the actor,” Lawrence said.

“Suppose someone has a bat. He takes the bat and hits someone in the head very hard causing enormous swelling in the person’s head. What crime is it?” Lawrence asked.

What ultimately determines this is the intent of the act, Lawrence explained. It is possible the person was standing there with a bat and the person who got hit was standing a little too close and accidentally got hit. In which case, it is far from being a crime.

“But notice the physical harm is precisely the same,” Lawrence pointed out, “the welt in the head. I would argue that it is not just the intent of the actor that’s being judged, it is the resulting harm to the victim. To have been hit in the head by accident causes the same physical pain. But the emotional pain, which we describe as spirit murdering, is very different if it were done carelessly, if it were done recklessly, or finally, if it were done intentionally,” he said.

Bias crimes hold a particular historical context. That is why, discussed Lawrence, in “the bias crime realm there is an active legislature saying this does or doesn’t count as a bias crime.”

He further formulated that such legislature is a normative statement that construes the culture, the context and the historical context. “Which is why,” detailed Lawrence, “every bias crime in the United States includes race, religion, ethnicity, gender or sexual orientation.”

It’s important to understand that context in the realm of bias crimes can vary. Lawrence explained that in European context, different things may be construed as hate speech.

For example, in many jurisdictions in Europe, Holocaust denial is illegal; it is against the law to deny the existence of Holocaust. “We might be surprised in the United States, if somebody was brought up criminal charges for that. We might not agree, we might argue that it should not be published in certain journals and boycott those journals if they do—but it’d be surprising if the government said you can’t express those views,” Lawrence said.

“I think these issues ultimately are contextual,” said Lawrence. “We’ll get a more satisfying approach by looking at not the expected results of the expression and the punishment thereby but rather at the intent and the culpability of the actor. Sometimes that’s going to be a very hard line to draw, sometimes those are going to be very hard questions to determine. But I do believe it is through that very narrow space that the line between expression protection of an individual and the rights of the other side are going to pass.”

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