ER, in his usual inimitable style, reads this story of a man arrested for dangling nooses at a group of blacks protesting the recent events in Jena, LA, and comes out loudly, and profanely, against hate crimes legislation. I disagree, and would like to advise and extend remarks I made in comments there.
You can read of the case of Matthew Shepard here. A young gay man, Shepard was brutally murdered in 1998 for the horrific act of hitting on one of two friends in a bar. With the introduction of a hate crimes legislation, Shepard's murder lighted a fire under the right who insisted that using such laws to prosecute his murderers would have made little difference, either in fact or in law, because he was still dead, and they were still guilty - convicted by their own statements - and, as is oft repeated, the state would have been in the business of "prosecuting thought", in this case, hatred of gays.
Except of course, it is not thought that is punished under hate crimes. Rather, hate crimes legislation punishes acts that are rooted in bigotry toward a group that has a history of social, cultural, economic, and political exclusion. In other words, hate crimes legislation goes to the question of motive, which is at the very heart of criminal law.
Let me give a completely ridiculous scenario, but one which illustrates my point. One night, the police are called to our house and find me holding a gun, powder burns on my fingers, and my wife dead on the carpet from gunshot wounds. I am arrested for first-degree murder. In the course of the prosecution, the state's attorney office discovers that (a) I had recently taken out life insurance for my wife at work; (b) my wife and I had been having a series of arguments over money problems; (c) I had discovered that afternoon that my wife had been having a multi-year relationship with another man; (d) I had purchased a handgun that afternoon (of course, IL law prohibits that kind of thing, but since all of this is fake, just follow along, please).
The prosecution takes all these facts and fits them in to a narrative in which I, enraged by the discovery of infidelity, take the final step of murdering my wife. This entire narrative is what is known as "motive" in criminal law. It is, in a sense, the outward manifestation of the inward thought and emotions of anger, betrayal, and a desire to murder finally manifest.
My defense attorney, on the other hand, takes these same facts, and argues that I was suffering from acute depression. The gun purchase was done because I had decided to kill myself. My wife, entering the room, tried to stop me. The death was completely accidental. The facts are not in dispute. They do not, however, create a narrative of motive for murder, but a narrative for a suicide interrupted by a tragic accident. I am found not guilty of murder, but guilty of illegal discharge of a weapon and attempted suicide (still a law in IL).
In other words, we prosecute people for thoughts all the time. Indeed, it is thought turned to action that lies behind the issue of motive - it is a non-psychologized rendering of the roots of human activity that we need to return to if we are to be clear about this issue.
Matthew Shepard is dead because he found a young man attractive, and hit on him. That's it, and that's all. His assailants were not after money; they were not looking to make a political statement. They were offended by Matthew Shepard's sexual identity, and insulted by the fact that he would actually make an attempt to sexually solicit one of them. Hatred - not some psychological state, but the act of hatred - was the sole reason for this crime.
In the case to which ER takes exception, a young white man drove by a group of African-Americans involved in protests surrounding events in Jena, LA with a couple nooses hanging from his vehicle. Had he driven by them and shouted a racial epithet, I could see fit to agree with ER - while rude, and prompted no less by racial animus than the display of a noose, this would clearly be protected speech. Even driving by with a hood on his head might be protected speech.
Dangling a noose, however, recalls the role of lynching in race relations. As I wrote on Monday, the lynch rope is the real symbol of much of the history of relations between blacks and whites. It was the epicenter around which swirled an entire system of domestic terrorism, social, economic, cultural, and political exclusion, meant to keep African-Americans from enjoying their rightful place as full participants in American society. Violence was at the heart of this entire system - the violence of "the mob" which was the real law in much of the country (not just the south; Tulsa, OK lost its entire African-American community in a "race riot" - whites burning it down, and chasing off the survivors). To imagine that the display of a rope tied in to a noose could be divorced from this reality, or should be, is to live in cloud-cuckoo land.
Furthermore, to reduce the fear and intimidation to psychological states is to play word games. This isn't about a group of people quaking in terror at the site of a noose. It is about a very real fear - the fear not just of one man but an entire group of people perfectly willing and capable to murder a bunch of uppity blacks who have forgotten their place. The dead dangling from trees, telephone poles, and underneath bridges all cry out against pretending the fear is anything other than a very real, very immediate threat to their very lives.
We are talking, of course, about domestic terrorism, an entire system of domestic terrorism, given the blessing of the powers that be because of the race of those who are the target. Prosecuting this as a hate crime puts this kind of act in the same category of incendiary speech as Justice Oliver Wendell Holmes' famous "fire in a theater" test - speech that is a direct threat to the peace is not protected speech. We aren't dealing with some yahoo shouting "Go home, nigger!" We have here the symbol of centuries of racial dehumanization being displayed, with the clear intention of telling these men and women what their fate will be if they don't go home and be quiet.