Fox's Napolitano fears hate-crimes law hurts free speech -- but ignores explicit language of bill
By David Neiwert Thursday Jul 09, 2009 5:00pm
Judge Andrew Napolitano sat in as the guest host yesterday on Glenn Beck's Fox News show, and featured a segment devoted to the notion that the hate-crimes legislation currently before the Senate might somehow be abused to undermine Americans' free-speech rights. His guest was David Rittgers of the Cato Institute.
There is, however, a problem right off the bat with their thesis: The bill in question -- the Local Law Enforcement Hate Crimes Prevention Act (LLEHCPA) -- contains specific language designed to ensure that the bill is never construed in such a fashion:
Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by, the Constitution.
Any honest discussion of this aspect of the legislation would have to bring this language into consideration -- but it's never mentioned by either Napolitano or Rittgers. Rittgers has written about it at Cato -- mostly objecting on the basis of concerns about federalism -- and similarly omits any discussion of the bill's actual language (which also explicitly recognizes the primary role of the states and local jurisdictions).
Watch instead what Napolitano and Rittgers do in the course of this discussion: they bring in a totally unrelated piece of legislation -- the "Megan Meier Cyberbullying Prevention Act", which is indeed highly dubious from a constitutional point of view -- as though it were part and parcel of the same hate-crimes legislation issues -- even though the two laws have nothing to do with each other.
And then they return almost seamlessly to the federalism and double-jeopardy issues around the LLEHCPA -- Napolitano just refers briefly to "this legislation," but it's quickly clear they're discussing not the Megan Meier bill, which does not raise such issues, but rather the LLEHCPA. It's all so muddied up that anyone watching the show could easily conclude that they're somehow packaged together.
Moreover, the double-jeopardy problems -- as we've explained in some detail -- are largely nonexistent, or rather simply reflect the ongoing debate over "dual sovereignty doctrine," which involves many more issues than merely bias crimes.
The ACLU strongly supports this bill, despite its usual concerns over double jeopardy, and if you look the bill's actual language, you can see why:
‘(b) Certification Requirement- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General that--
‘(1) such certifying individual has reasonable cause to believe that the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person was a motivating factor underlying the alleged conduct of the defendant; and
‘(2) such certifying individual has consulted with State or local law enforcement officials regarding the prosecution and determined that--
‘(A) the State does not have jurisdiction or does not intend to exercise jurisdiction;
‘(B) the State has requested that the Federal Government assume jurisdiction;
‘(C) the State does not object to the Federal Government assuming jurisdiction; or
‘(D) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.
It also contains this clause:
‘(e) Rule of Evidence- In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness.’.
This is why Caroline Frederickson, Director of the ACLU's Legislative Office, said this about it:
This bill has a provision, that has been in it since 2005, that has enabled the ACLU to support this legislation, because it does protect both civil rights and free speech and association. The bill specifically blocks evidence of speech and association that are not directly related to the crime.
That means that anyone saying we have unleashed the thought police, or thought crimes, is wrong.
... This bill will have the strongest protection against the misuse of a person’s free speech that Congress has enacted in the entire federal criminal code.
Napolitano was obviously looking for a way to grind Glenn Beck's usual ax about "our rights" being "eroded" by the federal government. And he obviously didn't want to bother explaining the facts in order to do it.
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Maybe conservatives should stop treating 1984 as an instructions manual. Jeez.
there were two different bills they were talking about , you would have thought they were talking about the same bill all along. Very deceptive on their part. I swear Fox News makes Goebbles and Hitler look like rank amateurs when it come to propoganda and deceptive lying .
No wonder there is so much opposition.
First off, I'm an African American male. If there's anyone who has actually experienced hate crime, its me.
That being said I still don't understand why we need a seperate legislation for crime. If someone commits a crime against me, than prosecute them to the fullest extent with the law we already have. For whatever the persons reason is, a crime is a crime.
It just feels like the government is saying "All you minorities(blacks, hispanics, gays,etc) are not people like us, so you need a special law to govern crimes against you. Just like we do for crimes against animals"
Feel free to straghten me out on this subject if I'm getting it wrong
Crime Laws are supposed to be deterrents. And while your point seems reasonable, I'd rather see on the books a law that says, while you can be an intolent bigot, if you act out on that bigotry, you are going to get your ass handed back to you. I'd feel a little safer, even if was somewhat meaningless. I mean why have any discrimination laws then? It just feels the government is saying "All you minorities(blacks, hispanics, gays,etc) are not people like us, so you need a special law to govern discrimination against you."
And I'm gay-American, so I've been there, hate-crime wise too.
"I'd rather see on the books a law that says, while you can be an intolent bigot, if you act out on that bigotry, you are going to get your ass handed back to you."
Isay: There are laws on the books already...we dont need anymore.
Physically hurting someone (acting out?) ...is a crime. period.
to read.
it is a way to proceed on a civil rights law suit if a criminal lawsuit fails. I don't really know how that would work but it seems plausible. I agree with you though it looks like we have enough laws to cover all continguencies. . Sometimes I think we go to extremes in trying to attone for our percieved wrongs.
A crime is not just the outcome, but the whole process.
I.e. a black man that dies after being ran over by a pick up truck accidentally, is not the same crime than the same black man being killed when a pick up truck is being stolen and hits him, and it is definitively not the same crime than if the same black man had been dragged down the road to die because of the color of his skin by a bunch of rednecks in a pick up truck.
All crimes involve a pick up truck and a dead black man. Now, would you agree that all 3 crimes should have the same penalty attached to them?
including the majority, including white people if they're the majority. Bigotry and violence sit on a slippery slope, and the sooner they're identified and punished, the better for everyone.
In a way, referring to a "hate crimes bill" is incorrect. The bills add additional enhancements to already existing crimes.
I'm assuming that you don't have a problem with premeditated murder being punished more harshly than accidentally causing a death, do you? Or someone convicted of groping a 12 year old is subject to a longer prison term than someone who gropes an adult? Is it worse to hold a gun on someone while you steal their purse than it is to just grab the purse and run?
We routinely punish the same end result differently depending on the circumstances and the victim. "Hate crimes" legislation nothing more than a continuation of the same philosophy.
I'm ex-military so my language is pretty explicit.
when the GOPers resort to mere talking points? Is this all they learned in school?
makes me shudder. Jesus H tap dancing Christ, with the stuff he was spewing I can't fathom how he was able to pass the Bar, never mind sitting behind the bench.
Supreme Court. The Dems concur, of course.
David N:
I think we see eye to eye on most things but I fundamentally disagree with you that we need more federal criminal laws.
I used to agree with you about federal hate crime legislation. Then I became a defense attorney and now I see first hand every day the abuses that are committed by the US Attorney's Office with over charging and other prosecutorial misconduct. I also see clients receiving draconian sentences in state court. Federal hate crimes legislation is contrary to the rule of law because it allows public reaction to verdicts in state court to open the door to the US Attorney's Office getting a second whack at everyone who the public doesn't think got reemed hard enough in state court. This is a prescription for mob justice.
It is offensive that you simply throw aside the double jeopardy concerns with federalizing an amorphous class of offenses as irrelevant. You certainly have Roberts and Scalia on your side with respect to the current state of constitutional law regarding the Double Jeopardy Clause, but I don't give a shit about them or the sorry excuse for a Supreme Court that we have.
The power of the state to deprive a person of their liberty requires a robust Double Jeopardy Clause. In my view, the government (state and federal) gets one chance, and one chance only to prosecute you for a criminal offense. Once the case is concluded, the government should be collaterally estopped from prosecuting you for any offense arising out of the same transaction or occurrence. The power of the state is too great to permit the abuse of repeated prosecutions.
The "fail safe" mechanisms you cite in the legislation are a joke. Do you actually think that a "written certification" from a deputy AG is a protection against abuse? That's just like saying a written certification from a deputy AG that you are an enemy combatant is a check on the government's power. Or a certification to conduct a wire tap. Or a certification to issue a national security letter. Written certifications don't protect you against shit.
Second, the certification can be obtained (1) when the state says its OK or (2) when "‘(D) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence." That is a provision that is so amorphous that you can drive a dump truck through it. So in other words, if the US Attorneys office really wants to screw you, then they can use the hate crimes law as a vehicle to do so.
The last time I commented you asked me why I speak up about hate crime laws. First of all, I am categorically opposed to any more federal criminal laws on principal. We need to stop thinking through the paradigm of federal criminal legislation as a panacea to our problems. This type of thinking has transformed us into a prison nation. But more specifically, it is when our fundamental principles clash with our pure motives that we show that we will protect liberty first.
Consistency is the virtue that allows us to be taken seriously when we complain about the AEDPA, the PATRIOT Act, the Adam Walsh Act, the Feeney Amendments, the Military Commissions Act, etc. Consistency is the virtue that distinguishes us from the pond scum on Fox News.
I could also care less that the ACLU supports the law.
In this day in age, every decision we make either advances tyranny or advances liberty. I will always fall on the side of liberty.
I think that's well put. As another defense atty, I spend many days dealing with prosecutorial overreach that's more a product of politics and careerism than of justice. I think George Bush was an ass, and possibly a criminal ass, for trying to criminalize a hatred of America. Back to the 60s, in Brandenburg v. Ohio, the most liberal wing of the Supreme Court found that the state has to keep their hands off speech unless it directly solicits violent action. And, so, speech that goes beyond Brandenburg is already illegal.
I think the author is right that ramped up speech on the right is causing problems, and it should be called out, and he's doing a nice job of it. But I don't agree that new sections of criminal law are necessary to police speech that we don't like. And I'm a little put off by his suggestion that the only people opposed to hate speech penalties are Sean Hannity and Rush Limbaugh. Enough with the strawmen, there's a real debate here between civil rights and civil liberties if you care to take it up.
Napolitano needs his hate speech to communicate to the masses. Take away his hate speech and he has nothing. Only a shell of a man. And there are people who'd argue he has never been anything more than just a shell of a man. But, I believe that shell is filled with hate and a spaghetti fart or two.
Napolitano: Scholars and lawyers and jurists and people interested in this have always debated what is the source of our rights. There are many, many schools of thought, but they basically fall into two categories. One says that our rights come by virtue of our humanity because we are created in God's image and likeness. Because God is perfectly free, he has instilled in us all the yearnings for freedom that we have: freedom of thought, freedom to develop one's personality, freedom to express oneself, freedom of movement, freedom of religion, freedom of association, etc.
[ http://www.reason.com/news/show/36528.html ]
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The legal profession's reputation, is justly deserved.We don't need a new law for this crap. It's the back room deals and judicial discretion that's a large part of the problem and often the flexible statute(s) enacted by a legislature, that adds salt to the wound, not to mention, it helps if ya got lots of $$$ to.
How many legal eagles in government ya think? If they put their faith in a sky daddy and think he makes the law... If they break one of the 10 commandments, throw'em in the brig and see what they think about their divine rights then... talk about over-crowding. :-/
He's part of the libertarian clan with Paul and the "CATO cronies" as well. Hey, whatever trips your trigger right :-o Just don't take away their survival guide!
... if man was created in god's image, and you believe in evolution, what does god look like?
I am against hate crime legislation. It gives prosecuters even more power than they already have. And there are already things like mitigating and extenuating circumstances. I don't understand why my fellow liberals want to see more people in jail for longer periods of time.
... repugs want to fill up the jails with pot smokers
... how at times they expand and contract.
Sometimes they pick out a piece of speech out of context and treat it as the entire item (this item), other times they expand as when talking about other items, such as 'Nancy Pelosi said the CIA did not tell the truth, or lied'. Right away they accuse her of maligning all of the CIA agents when she is clearly referring to the spokesperson for the CIA.
Just like under Bush, the CIA agents may have had it right, but their spokeperson, or Bush himself - and Cheney too - were the ones who were misrepresenting and lying.
I tell you, repugs have this semantics thing honed to perfection to distort.
Hey people! This is Faux Noise, the Right Wing mouthpiece, so it's expected bullshit lies
They blew the whole hate crime concept out of the water in the episode "Cartman's Silly Hate Crime".
I've seen this piece of shit go from "questionable idiot" to total fruitcake-sell your soul to the devil-f*cktard.
I used to have an inkling of respect for him...as though he had some balance in his legal opinions. NOW, he is no more than another bazar talking head for the propaganda network that works to confuse and mislead the American morons.
What a worthless sack of shit. Gone....just gone with the wind.
Holder Admits: No Equality Under Hate Bill
Guys this bill is not good. Some of it has good intentions but it has some very troubling langauge in it.
Here is a video of Attorney General Holder admitting that that it will have some groups of people be elivated and have special rights. Holder fails miserably.
http://www.youtube.com/watch?v=rnziaXfYhc4
This country is supposed to have citizens that are all EQUAL under the law.
YOu don't want this to pass and in 2012 or 2016 a Republican get in like the last one we had and shut Liberals down now do you?
I know many of you look to western Europe as the pinnacle of human civilization but that will lead you to folly. They do NOT have free speech in Europe the fact that a christian minister was even attempted to be prosecuted in Sweden is appalling and should disgust all Americans. Austria has jailed people for thought crime for daring to question the Governments official history of World War II, The Netherlands is prosecuting one of its democratically elected Mps for the crime of making a film comparing Islamism to Nazism.
A bill like this is the first step down this path.
The Southeastern TN branch of the Napolitanos hails from your end of the country.
They're Capone relatives. Al's niece married one of my shirttail cousins after Al's trial in Chattanooga.
Gives me additional reason to believe that the American Bar ASSn is just another organized crime racket and should be prosecuted under RICO legislation.
Hate crimes legislation should not be necessary but it may be a deterrent to neo-Hitlers, the KKK, and sexual trafficking, among other things.
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