Criminalizing Your Thoughts

"If my thought-dreams could be seen, they'd probably put my head in a guillotine."—Bob Dylan

Americans have always had difficulty reconciling the fact that the First Amendment protects those who may be perceived as offensive, profane and bigoted. That's the double-edged sword that is free speech.

Unfortunately, more and more Americans in their efforts to censor, silence or sanitize what they find offensive have resorted to banning certain words and criminalizing the thoughts behind certain actions. However, attempts to curtail the actions and speech of a few individuals are now threatening the constitutional rights of all Americans.

Such is the danger posed by the Matthew Shepard Act, which was named after a gay college student who was savagely beaten to death in Wyoming in 1998. This Act would expand the 1969 federal hate crime law to include crimes motivated by a person's actual or perceived sexual orientation, gender identity or disability.

The Shepard Act would give federal officials greater authority to engage in hate crime investigations at the local and state level. It would also remove the current prerequisite that the victim be engaging in a federally protected activity like voting or going to school. In other words, it opens the door for federal law enforcement officials to crack down on undesirable behavior wherever it occurs, as well as undesirable thoughts.

Frankly, this legislation is unnecessary. There are already a host of stiff penalties on the books for those who commit acts of unspeakable horror, whether the crimes are based on an individual's race, religion, national origin or sexual orientation. Indeed, most states already have hate crime laws. As Senator Orrin Hatch (R-Utah) has noted, "Those who perpetrated the Shepard murder in Wyoming are already sentenced to death or in prison for their lives under state law. There is no evidence that state governments are incapable of prosecuting these crimes or that they are failing to do so."

Thus, there being no real need for such legislation, one has to wonder why Congress would spend so much political capital on it when there are other, more critical battles to be fought? The answer is obvious. Having failed to make good on their campaign promises, especially in regard to the Iraq war, Democrats are trying to mollify certain private interest groups with this legislation.

It is also another example of how our elected officials are bartering away our freedoms by playing political games. By tacking the Shepard Act onto a defense authorization bill aimed at providing a pay raise and increase in health care spending for U.S. military personnel, Democrats are most likely trying to score points against their Republican opponents who voted against the legislation.

Yet such political pandering and manipulation does a disservice to all and creates a bureaucratic nightmare that poses real threats to our constitutional rights. For instance, the Shepard Act singles homosexuals out for expanded protection from hate crimes yet fails to address the thousands of crimes that occur each year against people who, while not gay, just don't "fit in." As one commentator pointed out, "Why not accord the same enhanced protection to kids who stutter, teenagers with bad acne, or adults who are overweight, homeless, or have unusually large ears?"

Furthermore, by providing millions of dollars in funding to help state and local agencies pay for investigating and prosecuting hate crimes, this legislation incites prosecutors to further intimidate defendants by piling on the charges. Moreover, hatred toward the victim often isn't necessary in order to be charged with the crime. Under New York's hate crime statute, no actual hatred for the victim is necessary for a conviction. As one reporter pointed out, "The law requires only that they have singled out a person for a violent act because of some belief or stereotype about that person's ethnicity, gender, religion, age, disability or sexual orientation."

Finally, and most concerning of all, the Matthew Shepard Act has the potential to further suppress free speech, especially among religious individuals who disagree with homosexuality. Whether or not the law includes a provision exempting free speech, there have already been instances at home and abroad where peaceful religious expression has resulted in hate crime prosecutions. For example, Christians have been prosecuted under a state hate crime law for "singing hymns" and peacefully "carrying signs" while attending a homosexual fair in Pennsylvania. Because the signs challenged the morality of homosexuality, these Christians were charged with three felonies and five misdemeanors and faced 47 years in prison for attempting to preach at a homosexual street fair. Indeed, a state judge determined that the prosecutions could go forward. His rationale was that the Christians' speech constituted so-called "fighting words." The decision was eventually overturned.

Well-meaning though they may seem, hate crime laws that punish not just the act but the motive open the door for a whole new realm of prosecutions, namely thought crimes.
But when all is said and done, a violent crime is still a violent crime, no matter what the motivation, and criminalizing someone's thoughts or speech will never change that.

Unfortunately, this issue is not going away any time soon. Although President Bush has pledged to veto the legislation, the likelihood of an expanded federal hate crime law is a very real eventuality. It is one more sign that politically correct America is moving closer and closer to extinguishing freedom.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at Information about the Institute is available at

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