Federal appeals court: Hate Crimes Act does not prohibit anti-gay speech

  • metta

    Posts: 39129

    Aug 03, 2012 3:00 AM GMT
    Federal appeals court: Hate Crimes Act does not prohibit anti-gay speech


    http://www.lgbtqnation.com/2012/08/federal-appeals-court-hate-crimes-act-does-not-prohibit-anti-gay-speech/
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    Aug 03, 2012 3:13 AM GMT
    What is sad is the three pastors suing very likely collected money from the people attending their churches to pursue this nonsense.
  • Suetonius

    Posts: 1842

    Aug 03, 2012 6:23 AM GMT
    metta8 saidFederal appeals court: Hate Crimes Act does not prohibit anti-gay speech


    http://www.lgbtqnation.com/2012/08/federal-appeals-court-hate-crimes-act-does-not-prohibit-anti-gay-speech/

    To be expected, of course. There is almost no kind of speech that the government can make illegal, including hate speech. However, the court did uphold the "hate crimes" law. "Anti-gay" speech could be evidence of a hate crime (some violent act), even though the speech is not in itself a crime.
  • Svnw688

    Posts: 3350

    Aug 03, 2012 8:03 AM GMT
    1). The title of this post is misleading since it sounds like a negative. The Hate Crimes Act was NEVER intended to stop gay hating SPEECH. Rather, it was intended to stop gay bashing violence. The legislation was duly enacted in October 20009, and REMAINS constitutional in the Sixth Circuit (incidentally, it remains constitutional in all other circuits as well). The headline should read "Sixth Circuit upholds Hate Crimes Act as Constitutional."

    2). The Court did not "hold" that gay hate speech could be used as evidence to prove "willful intent" and carry a guilty charge under the Act. The court merely held there was no standing. The second most narrow holding possible (the most narrow holding possible being to subject matter jurisdiction, which literally results in a one sentence statement). In legal terms, there is no problem, so no lawsuit to be had. Case closed since it never existed.

    While the legislation currently allows hate speech as evidence to prove a willful intent to gay bash, the court only "held" that the plaintiffs do not have standing. The court "found" they do not have standing because the constitutionally required case and controversy requirements has not been met. And the court more specifically "found" that the requirement wasn't met because the plaintiffs (a) did not intend to cause a gay bashing nor (b) was their speech chilled.

    What you're referring to is called "dicta." It's great guidance, and probably will tell you how the justices would rule if faced with such a question or issue, but as any junior lawyer who has mistakenly provided his partner with a supporting case in dicta can tell you, it is absolutely non-binding. In fact, 98% of all words in most published court opinions are non-binding. Perhaps persuasive in future courtroom battles, but non-binding nonetheless.

    3). The practical take away: Spew hate speech all you want. But do so in a way that does not threaten "imminent danger" or use speech that can be reasonably called "calculated to result in imminent danger" (i.e., code-language ....there are no magic word tricks when it comes to the 1st Amendment. If the Paster says "Go kill Puffs," and ordinary people understand 'puffs' to mean gays, and a gay is killed, then the pastor is liable). This is the "clear and present" danger doctrine that is often cited colloquially as "you can't yell 'FIRE!' in a crowded theatre." By the way, you cannot legally, don't do it.

    4). As a constitutional matter, "fighting words" ARE UNprotected speech. That does not make that speech "illegal" per se. It just means you cannot invoke the 1st Amendment (i.e., the constitution) if you get in trouble for saying those words. For example, if I walk down the street and say "fuck you" to a stranger, it have not done anything illegal, but if it causes a fight and he invokes "provocation" as a justification to hit me, I cannot invoke the 1st Amendment and he will likely be justified in punching me in the face and I'll lose my lawsuit. If, on the other hand, I had said "Obama sucks dicks," and he punched me, i could sue and win. He could try to say I provoked him with my political statement, but his justification would fail because I could invoke the 1st Amendment as a shield, and i'd win my lawsuit if he punched me for voicing my political statement.
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    Aug 03, 2012 11:59 AM GMT
    The court acknowledged that should the plaintiffs, all pastors, quote the biblical passage Leviticus 20:13, which calls for men who have sex with one another to be put to death, “they have not alleged any intention to do more than merely quote it,” which is not unlawful under the provisions of the Shepard-Bryd Act.


    Ok...here are my problems with this. First of all, this is making a huge leap. One, this guy is trying to discern intent. While it's fairly clear, nearly all crimes are committed due to some form of hate or anger. Two, no crime has been committed, and we're stepping into the scary territory of thought crimes. Crimes should only be prosecuted when there is a physical crime that has been committed, not pre-emptively. Harassment cases should be met with restraining orders. If the RO is violated, then a crime has been committed.

    My other thing is why don't why do we allow these assholes to pick and choose pieces of the Bible they choose to follow? Let's look at Exodus 31:14, which many choose to ignore.

    "Ye shall keep the sabbath therefore; for it is holy unto you: every one that defileth it shall surely be put to death; for whosoever doeth any work therein, that soul shall be cut off from among his people."

    My thought? Let's follow these douchebags around on a Sunday with protest signs and a bucket of rocks. While we won't hurt them, we can certainly protest their unGodly acts if we catch them not recognizing the sabbath by taunting them with the stoning God says they deserve. These people need to learn they can't pick and choose the verses they want to follow. It's all or nothing.
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    Aug 03, 2012 12:02 PM GMT
    Read his entire post and learn something most people never do.


    Svnw688 said1). The title of this post is misleading since it sounds like a negative. The Hate Crimes Act was NEVER intended to stop gay hating SPEECH. Rather, it was intended to stop gay bashing violence. The legislation was duly enacted in October 20009, and REMAINS constitutional in the Sixth Circuit (incidentally, it remains constitutional in all other circuits as well). The headline should read "Sixth Circuit upholds Hate Crimes Act as Constitutional."

    2). The Court did not "hold" that gay hate speech could be used as evidence to prove "willful intent" and carry a guilty charge under the Act. The court merely held there was no standing. The second most narrow holding possible (the most narrow holding possible being to subject matter jurisdiction, which literally results in a one sentence statement). In legal terms, there is no problem, so no lawsuit to be had. Case closed since it never existed.

    While the legislation currently allows hate speech as evidence to prove a willful intent to gay bash, the court only "held" that the plaintiffs do not have standing. The court "found" they do not have standing because the constitutionally required case and controversy requirements has not been met. And the court more specifically "found" that the requirement wasn't met because the plaintiffs (a) did not intend to cause a gay bashing nor (b) was their speech chilled.

    What you're referring to is called "dicta." It's great guidance, and probably will tell you how the justices would rule if faced with such a question or issue, but as any junior lawyer who has mistakenly provided his partner with a supporting case in dicta can tell you, it is absolutely non-binding. In fact, 98% of all words in most published court opinions are non-binding. Perhaps persuasive in future courtroom battles, but non-binding nonetheless.

    3). The practical take away: Spew hate speech all you want. But do so in a way that does not threaten "imminent danger" or use speech that can be reasonably called "calculated to result in imminent danger" (i.e., code-language ....there are no magic word tricks when it comes to the 1st Amendment. If the Paster says "Go kill Puffs," and ordinary people understand 'puffs' to mean gays, and a gay is killed, then the pastor is liable). This is the "clear and present" danger doctrine that is often cited colloquially as "you can't yell 'FIRE!' in a crowded theatre." By the way, you cannot legally, don't do it.

    4). As a constitutional matter, "fighting words" ARE UNprotected speech. That does not make that speech "illegal" per se. It just means you cannot invoke the 1st Amendment (i.e., the constitution) if you get in trouble for saying those words. For example, if I walk down the street and say "fuck you" to a stranger, it have not done anything illegal, but if it causes a fight and he invokes "provocation" as a justification to hit me, I cannot invoke the 1st Amendment and he will likely be justified in punching me in the face and I'll lose my lawsuit. If, on the other hand, I had said "Obama sucks dicks," and he punched me, i could sue and win. He could try to say I provoked him with my political statement, but his justification would fail because I could invoke the 1st Amendment as a shield, and i'd win my lawsuit if he punched me for voicing my political statement.
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    Aug 03, 2012 12:07 PM GMT
    redsoxfan791 said


    My thought? Let's follow these douchebags around on a Sunday with protest signs and a bucket of rocks.


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    Aug 03, 2012 12:23 PM GMT
    I do not believe in hate crimes, after all, all crimes are committed with hate and malice. While there might be different levels of malice and hate with each crime, I believe that we should just increase the crime charges just based on the crime.

    Also, you can't have free speech a one way street. To me that is just smells of hypocrisy.
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    Aug 03, 2012 12:26 PM GMT
    flatstate2010 saidI do not believe in hate crimes, after all, all crimes are committed with hate and malice. While there might be different levels of malice and hate with each crime, I believe that we should just increase the crime charges just based on the crime.

    Also, you can't have free speech a one way street. To me that is just smells of hypocrisy.


    icon_biggrin.gif Could not agree more. Murder is murder and assault is assault. There are varying levels of severity, but we shouldn't be giving heavier penalties for ignorance.
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    Aug 03, 2012 12:27 PM GMT
    StudlyScrewRite said
    redsoxfan791 said


    My thought? Let's follow these douchebags around on a Sunday with protest signs and a bucket of rocks.


    icon_lol.gif

    icon_cool.gif


    I love Monty Python.
  • Svnw688

    Posts: 3350

    Aug 03, 2012 10:46 PM GMT
    flatstate2010 saidI do not believe in hate crimes, after all, all crimes are committed with hate and malice. While there might be different levels of malice and hate with each crime, I believe that we should just increase the crime charges just based on the crime.

    Also, you can't have free speech a one way street. To me that is just smells of hypocrisy.


    With all due respect, I could not disagree more. I'm curious as to whether you understand the practical implications of hate crimes legislation or if you're just making a theoretical, ivory-tower argument.

    (1). The Hate Crimes Act TRIGGERS federal jurisdiction. Without federal jurisdiction, you're only help is the local cops. This is likely fine if you're in a city bigger than 10K people, but if you're in Columbia, Mississippi, and you get hate crimed, the cop could chose to not even investigate your crime because you're gay and he's happy you got hospitalized. You'd have no additional recourse. However, since a hate crime allegation TRIGGERS federal jurisdiction, the feds can come in and independently investigate crimes when "Sheriff Bob" won't. Also, this mobilizes state of the art investigative resources that many counties simply can't afford. This matters in poor counties. Say Sheriff Bob isn't a bigot and turning a blind eye and deaf ear, even if he wants to investigate, he has limited resources. With fed help, he can literally have a team of 4 cops down there investigating.

    (2). Free speech being a one way street has nothing to do with the Hate Crimes Act. The Hate Crimes Act never intended, and does not, make hate speech illegal. It simply holds speakers accountable if their words DIRECTLY result in immediate violence to a gay person (and other protected class members).

    (3). All crime is not equal. The proposition that murder is murder and assault is assult has NEVER been true in the American legal system. Have you ever heard of mitigating and exacerbating factors? They have NO effect on whether the person is "guilty" or muder or assault, and are often procedurally not allowed under rules of evidence. However, they are allowed at the SENTENCING phase. Here is just a small list of factors regularly considered by courts in decreasing or increasing a sentence for an identical conviction of "murder in the first degree.:

    Age of victim, age of killer, whether killer was on drugs, whether killer had a drug use history, whether killer had a prior relationship with victim, whether the killer had prior convictions, the level of education of the killer, and countless others.

    Are you saying that murdering someone BECAUSE they are gay/female/etc should not be considered?
  • Svnw688

    Posts: 3350

    Aug 03, 2012 11:00 PM GMT
    icon_biggrin.gif Could not agree more. Murder is murder and assault is assault. There are varying levels of severity, but we shouldn't be giving heavier penalties for ignorance.[/quote]

    I'm curious whether you understand the legal system. You, yourself, just said "there are varying levels of severity, but we shouldn't be giving heavier penalties for ignorance." So you admit that if person X is killed, we should NOT treat the killer the same but should look INTO THE MIND of the killer. In doing this, we assess what is called "scienter." Scienter is just a fancy legal word that means 'how big a dick are you?' For example, say person X is ran over by a car. The WORST case scenario is if the driver, with malice aforethought, intended to run that "son of a bitch" over and wanted cause the victim as much pain as possible. The second worst, (i.e., murder in the second degree) is a depraved heart murder, which would be if a person got in a car, started driving 30 mph, then steered into a crowded park and closed his eyes. While it cannot be said he meant for person X to die, he knew his actions would likely kill someone, and as such, he has a depraved heart. Other examples of depraved heart is shooting randomly into a crowded club. you don't know who is gonna get hit, but you know someone is likely to. The most acceptable killing is murder in the third degree. An example is a normal person driving, they were checking their blind spot to merger and accidentally hit and killed person X. Society does not punish this person because they did not mean to.

    In each of those examples, the court LOOKS INTO THE MIND of the killer to find out whether he meant to kill, and if so, assesses how cold and calculating he was. In the case above, both the cold blooded killer who wanted to get that 'son of a bitch' and the person who was checking their blind spot are guilty of MURDER. You admit there are varying degrees of severity, i.e., the cold blooded killer should be guilty of murder one, and the person checking their blind spot guilty of murder in the third degree. As you can see, your simple tautology is NOT TRUE, all murder is not murder, and all assault is not assault. In fact, it's possible to run person X over and not even be guilty or murder, but rather voluntary or involuntary manslaughter.

    In all situations, person X was ran over by the killer. But as you can see, the nuances of the legal system are such that an identical factual situation (of running person X over with a car and killing them) can result in a person not spending a single day in jail, or the person being executed by the State under capital punishment. The difference between these two extremes, life as usual or death row, is THE MENTAL STATE OF THE PERSON. To say we cannot look into the mental state of the person simply shows how little is known about the American legal system. The body count mean very little when it comes to crime, scienter is everything.

    GAY BASHING IS THE VERY DEFINITION OF MALICE AND SCIENTER.