Miscellaneous

More on Ideas: Naughty and Nice

By Anne Skove, Esq.

The second half of Jeremy Waldron's review of Anthony Lewis's biography of the First Amendment book (see previous post) dealt with the protection of hate speech.

Why protect this, asks Waldron? It's all well and good for noble attorneys to vow to "hate the speaker, protect the speech," but shouldn't we consider the harm done by such speech?

One step away from that lefty soapbox and we've got families moving away from neighborhoods, children afraid to go to school, employees facing intolerable situations every day.

Other countries don't protect hate speech, why does the U.S.?

Recent cases illustrate the confusion. A 46-year-old Ohio man of Filipino descent plead guilty to six counts of mailing threatening communications (e-mails) and two counts of threatening interstate communications. Among the defendant's 200+ targets were Derek Jeter and Justice Clarence Thomas. He posed as a white woman. Each missive carried threats.

Hateful? Sure. Threatening, too? Yep! (What's that they say about your right to swing your fist ends at the edge of my face?) Harm? Apparently so. Crime? Threatening judges usually qualifies. Crazy? We're surprised the letters N-G-R-I or G-B-M-I don't appear anywhere in accounts of this case.

See Ohio Writer of Racial Hate Letters Pleads Guilty, M.R. Kropko, AP (May 15, 2008). (Link is to Salon.)

In Missouri the notorious MySpace cyberbully was indicted on three counts of accessing protected computers without authorization (our people call it "hacking") to obtain information used to inflict emotional distress, and one count of conspiracy. (When in doubt, charge with conspiracy!)

The case is the one in which the neighborhood woman may have posed as a teenage boy on MySpace to torment her daughter's former friend. She supposedly struck up an online relationship with the troubled tween, finally driving her to suicide.

Hateful? Yep. Fraudulent? Oh, yeah. Harm? A family is missing a daughter. Crime? Federal: yes. State: no. No Missouri law at the time outlawed this conduct. (A local anti-cyber-bullying law has since been enacted.)

See Alleged MySpace Cyber-Bully Indicted in Teen's Suicide, Scott Glover, Los Angeles Times (May 15, 2008), and Lori Drew Indicted in MySpace Suicide Case -- Updated, Kim Zetter, Wired (May 15, 2008).

But note the nuances of hate in both cases. The e-mailer pretended to be white, was actually a minority, and threatened members of a different race. Did he really hate Justice Thomas? They'd never met. He targeted people due to their race, and/or because of their involvement in interracial relationships.

The second case was hateful, too, the crux of a long-standing neighborhood feud. Everyone was white, all were female. Again, false identity comes into play: the boy was (allegedly) actually a mom who lived down the street.

What hypothetical legislation could cover both of these cases? Critics of hate-speech legislation worry that we'd have to get inside the minds of the haters, effectively prosecuting thought crimes.

Another problem, though, is defining hate. Is it racial? Gender-based? Sexual orientation-based? Class-based? Neighbor-on-neighbor? Individual or group? Like a cantankerous Bo Diddley, we might well ask "who do you hate?"

Full post as published by court-o-rama.org on May 15, 2008 (boomark / email).