New Jersey jury on Friday convicted a Rutgers freshman of “bias intimidation,” among several other charges. Dharum Ravi had set up a webcam in the dorm room he shared with Tyler Clementi, and then posted footage online of Clementi being intimate with another man. Three days later Clementi jumped to his death from the George Washington Bridge. Ravi faces up to ten years in prison or deportation to India.
This verdict promises to have malign effects beyond the problems of hate-speech laws already long recognized. Most important, it will make it easier for Muslim organizations to achieve in the United States what they have in Europe: criminalizing legitimate and fact-based criticism of Islam by disguising it as “hate speech,” thus enlisting our criminal justice system in the enforcement of shari’a-based blasphemy laws.
Ravi’s conviction has dangerously expanded the already over-broad and subjective statutes against “hate crimes,” which are for the most part based on words and attitudes. Such laws are an attempt to criminalize preferences disapproved of by some political ideologies, and they are based on dubious social psychology theories about how “hate speech” creates a “climate of fear” that legitimizes and hence increases physical violence or harassment against protected groups. The problem with such laws, however, is that in practice they are selective, protecting politically favored constituencies while excluding other groups such as Christians, Jews, straight white males, or conservatives. Worse yet, what constitutes “hate speech” is highly subjective and reductive, ignoring the specific contexts and intentions that contribute to any speech act. Finally, under the Constitution, we are free to dislike whomever we wish for whatever reason we wish, no matter how much such dislike disturbs others. And subject to strict “fighting words” constraints, under the First Amendment we have the right to express that dislike in speech, including speech others may find offensive.
In short, “hate crime” laws represent another dangerous government intrusion into social and political life at the expense of freedom, all in an attempt to create some utopian world in which nobody ever feels bad, and social relations are without strife and conflict. Yet this goal is impossible given human nature and the great variety of people and their beliefs, some of which they passionately hold and consider foundational to their identities and the meaning of their lives. In a free society that by law gives people the right to express these beliefs and preferences, there inevitably will be clashes, and these disagreements won’t always be conducted with the decorum of a Jane Austen novel. Thus freedom of speech necessarily entails accepting that occasionally one will be insulted or offended. But that’s the price we pay for that freedom, for the alternative is the creation of legal limitations that inhibit speech by using the coercive power of the state to threaten or silence disagreeable political views.
The more dangerous consequence of such legislation, the illegitimate expansion of the scope of hate crime offenses, is what has taken place in the Ravi case. What Ravi did could be considered mean or boorish, but given he was a freshman in college at the time, such behavior is to be expected of a callow youth. There was no evidence presented that Ravi personally was homophobic, no past record of harassing or intimidating homosexuals. In fact, there was not any “hate speech” at all, just a subjective interpretation of his actions as the fuzzy crime “bias intimidation.” As a result, this verdict has broadened the categories “hate” and “bias” to criminalize immaturity––as long as the victim is a member of a protected group. If the roles were reversed, and Clementi had posted videos of Ravi having sex with a woman, nobody would have cared how humiliated or shamed Ravi became, even if he committed suicide.
As a result of this expansion, this verdict contributes to that “chilling” effect on free speech that the ACLU selectively complains about. People who disagree about the legitimacy of same-sex marriage, for example, or resist the attempt to normalize homosexuality, now face the possibility that their opinions, if expressed in ways subjectively interpreted as “hurtful,” could be construed as “bias intimidation” or a “hate crime” or “bullying,” and hence subject to legal sanctions. After all, if normal freshman boorishness can be criminalized, anything can. Already the threat of such prosecution lurks behind every charge of “sexism” or “racism” or “homophobia.” We saw this tactic in the recent uproar over Rush Limbaugh’s comments about Sandra Fluke, which a Washington Post blogger called “hate speech” that “crossed into the realm of sexual harassment.” That is, as something that the power of the government can punish. Such threats can lead to self-censorship and an environment that is hostile to free speech.