Is Hate Speech Protected by Free Speech?

<div class='quotetop'>QUOTE(airportkid @ Dec 3 2006, 07:14 PM) [snapback]357199[/snapback]</div>

I would agree with you, except that the law in all jurisdictions already takes into consideration mens rea ("guily mind," or intent,) and sentencing always takes into consideration mitigating circumstances.

Thus, physical harm caused without intent to harm, will most often be a civil liability, since there is no intent.

Also, in your case above, the mistaken belief of infidelity would be taken into consideration at sentencing, and in most cases the "crime of passion," even where there is an innocent victim, will likely get a comparatively lighter sentence, than the crime of deliberately killing an innocent person.

<div class='quotetop'>QUOTE(fshagan @ Dec 3 2006, 09:52 PM) [snapback]357236[/snapback]</div>

Again, I might agree with you, except that I feel very uneasy about factoring people's "prejudices" in their sentences. Guessing the "moral" reason behind committing a crime, is very different from establishing "intent" to commit a crime. Enhanced punishment for the "nature" of someone's thoughts, beyond the mere establishment of intent, and limiting enhanced punishment for such "bad" thoughts ("prejudices") to only certain classes, is to me too close to restricting free speech for comfort.

I do know that prosecutors often tag on ancillary offences when they are trying to get the accused to plead, or cannot get a conviction for the actual crime (thus, for instance, you see some startling convictions for drug possession, but the real reason for the long sentence is likely that the perpetrator is a gang-banger who killed someone, but the jury will not hear the evidence because witnesses are afraid to testify.) But while drug laws (even if I disagree with them) apply to all equally, "hate" laws make separations among people, which make me uncomfortable.

 

<div class='quotetop'>QUOTE(Black2006 @ Dec 5 2006, 02:58 PM) [snapback]358165[/snapback]</div>

I understand your argument, and you've stated it well. My only quibble with your statement above is that lack of "intent to harm" does not preclude criminal charges (at least in my state). Killing someone without intent (or, "malice and aforethought") does not mean you don't get criminal charges filed; it simply means the possible punishment is less.

First degree murder (with malice and aforethought) is punishable by LWOP or death.
First degree hate crime murder is punishable by LWOP.
Second degree murder is punishable by 15 years to life in prison (parole permitted).

Voluntary Manslaughter is punishable by 3, 6 or 11 years in prison.
Involuntary Manslaughter or "criminally negligent homicide" is punishable by 2, 3 or 4 years in prison.
(Souce: http://caselaw.lp.findlaw.com/cacodes/pen/187-199.html and http://www.california-criminal-defense-law...html#potential)

Of the first three, all include "malice and aforethought" (which is probably closest to our meaning of "intent"). The difference between first and second degree murder is the method used (torture, bombs, poison, "armour piercing bullets") and if its done in the commission of another crime (rape, car jacking, burglery, etc.) All other murders are second degree murders. Hate crime murders have to first qualify as a first degree murder combined with the special qualifications that make it also a hate crime. The punishment is not more severe, but less severe (LWOP instead of the possibility of death).

The last two do not include any kind of intent, and involuntary manslaughter is often the charge levied against DUI drivers and that soccer mom reaching for her cell phone who runs over a child. These are not civil suits, but real live criminal acts that, even without intent, are punishable under the law.