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Say what you want, hate-crimes bill protects free speech
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

Editor’s note: On Oct. 28, President Obama signed into law the defense-funding bill that included the hate-crimes measure.

After years of heated debate, the Senate gave final approval on Oct. 22 to legislation already passed by the House that expands federal hate-crimes statutes to include sexual orientation and gender identity. President Obama has promised to sign it into law.

Last-ditch efforts by many conservative Christian groups have failed to stop the bill – known as the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, after the gay man murdered in Wyoming in 1998 and the African-American man dragged to his death behind a pickup truck in Texas that same year.

Once it becomes law, the Department of Justice will have broader authority to investigate and prosecute violent crimes “motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim.”

Of the various arguments advanced by some social conservatives against the bill, the one that has gotten the most traction with the public is the charge that the legislation would “criminalize preaching the Gospel and put preachers in the crosshairs,” in the words of a letter sent to senators by 60 conservative leaders in June.

Scary stuff, but is it true?

To illustrate their fears, religious conservatives cite cases in Europe and Canada where a few pastors have been prosecuted in recent years for “hate speech” after they spoke out against homosexuality.  These prosecutions are indeed insidious attacks on free speech and free exercise of religion – but they all occurred in countries without a First Amendment.

In my view, it can’t happen here. Americans have, after all, lived under hate-crimes laws, federal and state, for decades – and some of the state laws already include sexual orientation. In all that time, religious leaders of various stripes have preached controversial beliefs about race, religion and national origin without ever being charged with a hate crime based on the content of their speech.

Thanks to the First Amendment, we enjoy the strongest protection for free expression in the world. In a society where even white supremacists, anti-Semites and anti-gay hatemongers like the Rev. Fred Phelps are free to speak, local pastors need not worry about being prosecuted for preaching the Gospel as they understand it.

But just to be certain that the legislation will not be misused, sponsors of the hate-crimes bill have added language to ensure that “nothing in the Act shall be construed to prohibit any constitutionally protected speech.” Further, “nothing in this Act shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating of espousing such beliefs.”

The only speech affected by this bill is speech that has no constitutional protection now, such as speech that directs people to commit violence, in a manner likely to incite imminent lawless action. Bias-motivated acts of violence are the target of this legislation, not speech protected by the First Amendment.

While Americans remain divided about homosexuality, we are largely united on the question of safety. That’s why surveys show widespread public support for including sexual orientation and gender identity in hate-crimes laws – 68% in favor, according to a 2007 poll.

Since a crime is a crime, argue opponents of the bill, no special legislation is needed to address attacks on gay people. Proponents respond that when people are singled out because of their race, religion, national origin, gender, sexual orientation, or disability, the crime is more than an attack on an individual victim; it is a hate crime that intimidates an entire group of people. In a free society, no one should live in fear because of who they are.

According to the FBI, hate crimes motivated by sexual-orientation bias are a growing problem in the United States. Our challenge is to do everything we can to combat these crimes without in any way undermining constitutional protections for freedom of speech and free exercise of religion.

Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: E-mail:


Charges dropped against anti-gay protesters

'We cannot stifle speech because we don't want to hear it, or we don't want to hear it now,' says Philadelphia judge. 02.18.05

Criminalizing hate shackles everyone's rights

By Douglas Lee Expanding the reach of hate-crime statutes undoubtedly would outlaw more speech and narrow First Amendment protections even further. 10.30.98

Would federal hate-crimes law threaten religious freedom?

By Charles C. Haynes Though new bill sparks fears that preaching against homosexuality could be criminalized, that's a highly unlikely outcome. 06.10.07

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