Ari Armstrong's Web Log (Main) | Archives | Terms of Use
Libertarian Participates in DU Law School Panel Discussion on Hate Crimes
This article by David Bryant was published in January and March, 1999, through Ari Armstrong's Colorado Freedom Report. It was archived here on August 21, 2025.
The election results were not even a week old when I got the call.
One of the unsung benefits of being a Libertarian candidate for public office is that one attains a certain notoriety merely by losing. Whether the Party itself or the candidates had won recognition was hard to tell. Either way, there it was -- an invitation from the faculty and students of the Denver University School of Law for a Libertarian to participate in a panel discussion of existing and proposed hate crime legislation on Monday, November 23, 1998.
I accepted the invitation immediately. Here were at least three opportunities rolled into one. It was a chance to hone my public speaking skills. It gave me an incentive to study the hate crime legislation already on the books, and to form a more closely reasoned opinion about the current clamor to enact more of it. And if I spoke well enough, I might influence a few nascent attorneys to lean in more libertarian directions.
With nearly two weeks in which to prepare myself for this close encounter with the legal mind, I began by reviewing the Libertarian Party's platform, the two hate crime statutes on the books in Colorado, and a few randomly selected statutes from other jurisdictions. The results of this early research surprised me. While there are some very questionable hate crime laws in other states and in the U.S. Code, and while most of the recent agitation to enact more laws in the wake of Matthew Shepard's murder has been driven more by emotion and less by reason, Colorado's existing ethnic intimidation statutes (CRS 18-9-121 and CRS 13-21-106.5) are carefully drawn and difficult to criticize on purely libertarian grounds.
It soon became clear that I cannot oppose all existing and proposed hate crime laws as a matter of principle. So I decided to concentrate my arguments in two specific areas. First, I would propose standards against which all legislation should be measured to be sure it comports with libertarian principles. Second, I would advocate the repeal of existing laws which serve to promote and encourage unjust and bigoted behavior directed toward specific minority groups.
As the appointed day approached and I learned more about the other panelists, I also realized that the question of hate crimes against gays would be the primary focus of the discussion. Marisa Amin, a student at DU, was my primary contact with the organizers. She gave me a packet of background material. The packet included a list of questions that would be directed to the panel by the moderator, selected figures drawn from the FBI's annual Hate Crime Statistics report, information about two U.S. Supreme Court cases (R.A.V. v. City of St. Paul and Wisconsin v. Mitchell) that tested the constitutionality of hate crime laws in two Midwestern states, and a couple of recent newspaper articles about the Matthew Shepard case.
Over the weekend I used the Œnet to retrieve more data from the FBI's web site. I reviewed the Hate Crime Statistics 1996 report with special care. I also compared the reported incidence of hate crimes against the national statistics on crime in general. The results were generally what I expected, with a few glaring exceptions. 69% of the reported hate crimes were directed against persons; the remaining 31% were defined as crimes against property, and a vanishingly small percentage (0.16%) fell into the special category of "crimes against society." These figures stand in sharp contrast to the statistics for crime in general, where one finds that 5% of all crimes victimize a person directly, and 95% are property offenses. The statistics are not directly comparable, however, as the national figures for crime in general do not include assaults, acts of intimidation, or simple vandalism, while such incidents comprise 96% of the reported hate crimes.
The overall incidence of hate crimes in the study is quite low, averaging about 4 incidents per 100,000 people per year. Comparing this with the overall incidence of crime (5,079 incidents per 100,000 per year), I am led to conclude that hate crimes are not exactly inundating the nation. Comparing only those crimes which are defined the same way in both FBI studies, it appears that 0.0042% of all the incidents of murder, rape, robbery, burglary, larceny, and motor vehicle theft reported in 1996 were classified as hate crimes, implying that 99.9958% of the reported crimes in these categories were not so classified.
Though incomplete, the FBI's figures on hate crimes exhibit some surprising tendencies. For instance, the reported incidence rates are highest in New Jersey, Delaware, Maryland, and Massachusetts, while the lowest rates are found among Louisiana, Mississippi, Arkansas, and Alabama. Standard methods of statistical analysis confirmed what seemed intuitively obvious: the outlying data points are so far out of line with the general trend as to cast doubt on their integrity, and biases inherent in the data collection process have almost certainly colored the final results. In short, these data are lousy. At least the other panelists would be working off the same page.
II
I arrived at the Lowell Thomas Building on DU's Law School campus at 4:15 on the dot. Room C-85 was a lecture hall arranged as a theater. The comfortably padded seats for about 100 students were arranged in six or seven curved rows sloping steeply downward toward the small stage on which the panelists sat. I was seated at the west end of the table. Was my position on the extreme right wing an accident?
Such thoughts faded from my mind as I surveyed my surroundings. There were already some 35 students in the ampitheater, and more were still walking in. I introduced myself to James Rouse, the panelist seated next to me. Jim is president of the Rocky Mountain Family Legal Foundation, a legal services organization which primarily defends the free speech rights of abortion protestors. Seated on the other end of the dais were Mark Silverstein, Director of Legal Services for the ACLU in Denver, and Julie Tolleson, Managing Attorney for the Colorado Legal Initiative Project, a lobbying group which represents Colorado's gay and lesbian community before various legislative bodies.
By the time we started there were 50 or 60 people in the audience. After some brief opening remarks the panelists were introduced and Martha Ertman, a professor at DU who teaches business law, assumed her role as moderator. She gave a quick overview of the statistics cited above, emphasizing the official classifications of hate crimes by "bias motivation" -- 72% motivated by race or ethnicity, 16% motivated by religion (with 80% of these directed against Jews), and 12% motivated by sexual orientation. Ertman also noted that after adjusting for the relative preponderance of white and black people in the U.S. population, it appears that hate crimes by blacks against whites are perpetrated twice as often as those by whites against blacks.
I was the first panelist to speak. I thanked Ertman for her gracious introduction, stressed the fact that while I am a member of the Libertarian Party, any opinions I hold are my own and not the Party's, then emphasized my status as a layman whose approach to legislation is primarily pragmatic. We are here, I said, to evaluate proposed solutions to the problem of hate crimes, and to separate good proposals from bad ones. To that end I will propose six criteria which may be used to weigh any piece of legislation, whether or not it has already been enacted.
Three of these criteria derive from simple legal and practical considerations. First, does the problem we wish to solve fall properly within the province of the law? If not, a legislative solution to the problem is bound to fail. Second, does this particular unit of government possess the requisite constitutional authority to enact the desired legislation? If not, we must either take our proposal to some other unit of government or work for an actual constitutional amendment, for alterations in the plain intent of our written constitutions by either legislative or judicial fiat cannot be condoned. Third, can this law be enforced? Will the benefits outweigh the costs? There's no point in squandering our resources by passing laws nobody will obey. And when we reckon the cost of law enforcement, we should look beyond mere dollars and cents. We must never forget that each expansion of state power involves a corresponding reduction of social power.
The next three criteria, I continued, are drawn from economics. The natural order of things is deeply ingrained in the human psyche, and public policy must take that natural order into account. Since economists have discovered some deep ordering principles which affect many human interactions, the legal profession can learn valuable lessons by analogy.
First, consider the economic principle known as the law of diminishing returns. As businesses grow in size, the incremental yield from additional investment tends first to increase, but ultimately to decrease as the limits of efficiency are approached. The legislative analogy is straightforward. There are already so many laws on the books that new laws are likely to cost more than they are worth. Consideration of this principle inclines me to seek the repeal of some existing laws, not to enact even more. In particular, I said, we must repeal those laws which criminalize homosexual acts between consenting adults, for such laws implicitly sanction acts of bigotry against gays.
A second economic rule is Gresham's law, that bad money tends to drive out the good. Similarly, bad laws tend to increase public disrespect for the law in general. This principle says we should be very careful not to enact bad laws, for they tend to undermine the rule of law itself.
The third applicable economic insight is the very first principle of economics: People seek to satisfy their desires with the least expenditure of effort. The analogy with laws and law-making is again straightforward. When a societal problem confronts us, we may use either social power or state power to resolve it. Perhaps, I suggested, raising the hue and cry for a new law is taking the easy way out. It's always more difficult to do something about the problem personally than to make a new rule and then pretend the problem is gone.
Wrapping up, I said that Libertarians support the concept of equal protection under law. When evaluating legislative proposals we want to be tough, but fair; open-minded but objective. Libertarians challenge the idea that more and bigger government can solve our social problems. In particular, applying these six criteria to proposed and existing hate crime legislation will lead to fewer and better laws.
Jim Rouse of the RMFLF spoke next. Hate crime legislation tends to muzzle free speech, he said. The line between expressions of opinion and acts of intimidation is not easily drawn, and the law should err in favor of protecting the freedom of speech. He cited several Supreme Court cases in which the first amendment's prohibitions have been held to protect "provocative and challenging" speech. It is not necessary to enact laws distinguishing between violent acts directed against random victims and violence directed specifically toward members of hated groups. In either case the damage is the same. If someone is mugged and ends up in the hospital in traction, he feels the same pain as another victim who was beaten because of his race or sexual orientation. The law, therefore, should treat these two victims in the same way, for they have suffered the same actual harm.
Mark Silverstein of the ACLU was the third panelist to speak. While expressing general support for legislation against hate crimes, he said the legislatures and the courts must be especially careful not to infringe our civil liberties. He agreed with Rouse' contention that some hate crime legislation impermissibly encroaches on free speech, and he said the ACLU also opposes laws which attempt to regulate people's thoughts. He gave some examples of anti-discrimination laws concerning housing and employment which have been held constitutional by the courts, and said the ACLU favors the addition of sexual orientation to the list of protected classes in such statutes.
Silverstein discussed existing case law in some detail. In the case of R.A.V. v. City of St. Paul the Supreme Court struck down a city ordinance which criminalized the use of "fighting words" which "one knows or has reasonable grounds to know arouse anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender." In Wisconsin v. Mitchell the same court upheld a statute which provided an enhanced penalty where the victim of a crime was intentionally selected on the basis of race, religion, disability or sexual orientation. Therefore, he said, it is clear that hate crime laws must focus on the process of selecting a victim from these or similar classes if such laws are to pass constitutional muster.
In the ACLU's view, the courts must carefully restrict the evidence admitted in the criminal trial of anyone accused under a hate crime law. Evidence based on prior statements or past associations is inadmissible. The evidence must be directly associated with the crime itself. Proof that the accused chose his victim based on a prohibited categorization must be clear beyond a reasonable doubt. Finally, the ACLU has recently issued a formal policy statement to the effect that the mere utterance of a racial or religious epithet during the commission of a crime does not establish the element of racial or religious selection of a victim beyond a reasonable doubt. In other words, prosecutors have a tough row to hoe when they try to make a hate crime case.
The final panelist, Julie Tolleson of the Colorado Legal Initiative Project, gave a much less technical presentation. She spoke of the difficulties gay and lesbian people face in their daily lives. She said that CLIP is absolutely necessary, for gay and lesbian people need protection from the vicious forces of bigotry and discrimination running amok among us, and only the law can protect them. Without organizations like CLIP the general assembly would never even consider passing such laws.
She took issue with Rouse' comments about like punishments for similar injuries. She insisted that when violence is directed toward gays or lesbians because of bigotry or hatred, both the victim and society itself suffer "a different kind of injury." She challenged the idea that equal protection under the law is already afforded to gays and lesbians. They will not obtain equal protection unless the law recognizes them as a class. She also spoke of the necessity of sending a message to the perpetrators of hate crimes -- of "punishment as a statement of public policy." Crimes against minority groups are crimes against society, and society must deal with them severely so people will learn that we don't tolerate hate and bigotry.
After the four panelists had concluded their opening remarks, Ertman began to address questions to various members of the panel. "Leaving aside the easy case where the perpetrator says, 'I'm assaulting you because you are a _______,' how do we know if a crime is motivated by hate?" she asked Silverstein. He reiterated the ACLU's position on the rules for establishing bias as a motivating factor without elaboration. Rouse volunteered his opinion -- it's not possible, and even if it were, legislation that requires courts to divine this element of bias against a class unconstitutionally infringes on freedom of speech and thought.
Ertman's next question was directed to Julie Tolleson. "How do existing laws protect persons who have been victimized because of their race, religion, or sexual orientation?" Julie responded by talking about Colorado's ethnic intimidation statute. She pointed out that sexual orientation is not included in the list of protected classes, and said it should be added. Silverstein noted the existence of federal laws which define a wide variety of protected classes, including federal employees. I observed that, strictly speaking, the law cannot really protect anyone -- it sets boundaries on people's behavior, but when push comes to shove, it is my responsibility to protect myself from an aggressor. If I am injured, I may seek redress through the courts, but that can only happen after the fact.
The discussion shifted to the role of punishment within our system of laws. Tolleson spoke again of the "different kind" of harm inflicted on society, and of society's need to meet this threat with enhanced punishment. The government must send a message to the hateful among us by punishing them severely. Rouse objected to this idea, saying once again that the law should impose the same punishment on two assailants who have inflicted the same actual physical injuries on their victims. Mr. Silverstein launched into a theoretical discourse on the various purposes of punishment, laying particular stress on the element of retribution. He appeared to sympathize with Tolleson's position, speaking of crimes which strain the very fabric of society, and alluding to some potential purpose of punishment extending beyond the particular crime and the individual victim.
When I got a chance to speak I made three points. The discussion is centering entirely on the criminal law, I said. In fact, there are two ethnic intimidation statutes in Colorado, and one of them creates a private right of action. Private lawsuits are generally preferable to public prosecutions because the cost of the proceeding is borne by the parties and not by the public at large. Secondly, I observed, as a pragmatist I must object to this obsession with punishment as retribution. Libertarians favor restitution to the victim when that is possible. Preventive detention of a criminal has some practical value, but retribution is totally impractical. Finally, this whole notion of a crime against society is nonsense. Real crimes involve real victims. The law should focus attention on the individual victim, not on some specious abstraction.
The discussion continued in this vein for a few more minutes. Suddenly Ertman turned to me with a roguish smile and said, "Bryant, you say that you are responsible for protecting yourself, and that you favor civil suits over criminal prosecutions. Is it every man for himself, then? Are we to have no law and order at all?" The room was silent. Friendly faces turned dark.
Of course not, I replied. The institution of civil government is indispensable. The question is one of emphasis. I think the focus should be on the individuals whose lives and liberties are to be preserved and not on the mechanism created for that purpose. In fact, since government is force, we must be wary of the ways in which that force is applied. The power to coerce is always subject to abuse.
Let's get down to brass tacks, I said. This forum isn't really about hate crimes in general. It's about the murder of Matthew Shepard, and widespread bias against homosexual people. You ask what the government can do about this, and I reply that cleaning up its own act would be a good start. Let me tell you a story. A friend of mine, Wayne White, is openly homosexual. He was the Libertarian Party's candidate for Attorney General this year. A few weeks ago, I met one of Wayne's friends named Lance, who also happens to be an openly gay attorney. In his legal practice Lance often represents homosexual men who have been charged with public indecency under Denver's municipal code.
According to Lance, the Denver police department actively recruits attractive young men to serve on the vice squad. These officers make a practice of hanging out in gay bars. They solicit sexual favors from other young men in the bar. If the invitation is accepted, the pair retires to the "public" restroom. Some of the officers will actually go all the way, allowing the target to perform fellatio on them before pulling up their pants, writing out a summons, and walking off with a cheery, "See you in court, pal."
Now I understand that judges have held this is not entrapment, for the target of the "investigation" was somehow predisposed to break the law. But the way I look at things, the real criminal in such a case is the police officer. There's nothing particularly public about the restroom in a gay bar, and the thought that a policeman can get his rocks off, get paid for doing it, and then prefer a criminal charge against the person who gave him pleasure is absolutely repugnant to me. If we want to end mistreatment of gay men, we must first abolish such abhorrent official misconduct.
I stopped. I had nothing more to say. There was a brief smattering of applause. Darkened faces were smiling again. I had scored a direct hit.
Our time was almost up. Ertman moved the discussion toward consideration of a hypothetical case study. There was little interest in that, so she threw it open for questions from the floor. The first questions were directed toward Silverstein. People wanted him to elaborate on the exact nature of the evidence which might be used to establish that an assailant had selected his victim on the basis of that person's race or religion. Silverstein would not elaborate. The questioners grew somewhat frustrated. I thought of the Oracle at Delphi.
Tolleson fielded a few simple questions about classification by race as opposed to classification by sexual orientation. And then an intense young brunette directed a bombshell at Rouse. You, she said, told us there is no difference between a random assault and an assault motivated by hate directed toward a particular group. You said the injuries suffered in each case are similar, and either kind of victim feels the same pain. Let me tell you about my father. He is homosexual, but he hid this fact from his friends and family for many years. One night he was assaulted outside a gay bar. The injuries he suffered were not only physical -- there was a great deal of emotional damage as well, for his deep dark secret came out as a result of that attack. His marriage was destroyed, and several of his long term business relationships also suffered. How can you know anything about the pain my father feels?
That was a tough question, and Jim answered it as gamely as he could. I'm sorry your father was injured. I hope his assailants were apprehended and punished -- not for their opinions about homosexuality, but for the harm they inflicted on him. I defend everyone's right to speak freely, your father's as well as the next guy's. If your father wishes, he is free to contact the legislature and to seek some modification of the law, such as adding sexual orientation to the list of defined classes in Colorado's ethnic intimidation statute. But I cannot accept the idea that the law should punish people based on the content of their thoughts.
He paused, and was immediately hit with a barrage of questions. Isn't motivation widely accepted as an aggravating factor under existing law? What about the distinction between premeditated murder and murder as a crime of passion? Are we punishing those people for their thoughts or aren't we? How can you pretend to know what the victim of a crime feels? Are you gay? If not, how do you know anything about gay people's feelings?
Rouse did his best to counter these questions, but began to wilt as the onslaught gathered momentum. If fundamentalist Christians were being assaulted because of their beliefs, would you support prosecutions under the existing ethnic intimidation statute? Yes, he replied guardedly. Well, what about assaults against homosexuals? Don't they fall in the same class as assaults against Christians? No, he said. Under what circumstances would you consent to add sexual orientation to a list of classes in a hate crime law? I cannot think of any such circumstances, he replied. Don't you sometimes serve as an attorney for Focus on the Family? Yes. Will you represent their interests in the next session of the legislature? I'm not at liberty to say. And so on.
At a quarter to six the moderator called a halt, inviting everyone to continue the discussion in the atrium just around the corner, where complimentary hors' doeuvres and beverages were available. As the audience drifted out the door I spoke briefly with Ertman, thanking her for her hospitality and telling her how much I had enjoyed the discussion. Rouse left quickly and quietly. I headed toward the atrium myself, gulped down a glass of wine, spoke briefly with a few of the students who had questions about my presentation, then sought out Julie Tolleson to thank her for participating. As I headed home several unanswered questions continued to buzz through my head. My experience that evening had taught me a lot -- it was clear I still needed to improve my understanding of hate crime legislation.
A Libertarian Analysis of Hate Crime Laws
The law students at DU are an inquisitive bunch, especially with wine and cheese in hand. They asked several very telling questions, which gave me plenty to think about in the weeks following my close encounter with the legal mind.
One young lady asked an obvious question right away. "I listened to your opening remarks very carefully," she said, " and though I enjoyed them, and thought they were concise and logical, I didn't hear you take a position on hate crime laws in general."
"You didn't hear me take a position because I had carefully crafted that speech with the precise goal of not taking a position on such laws in general."
"Well, then, now that the panel discussion is over, would you care to take a position?"
"I'm still working that out," I told her. "In general I think that some of the existing laws are very bad, a few are no worse than most laws are, and nearly all the proposals for new or revised legislation in this area are unnecessary. But I always try to reserve judgment for particular cases, so I will do my best to evaluate each new proposed hate crime law on its own merits."
Another young woman seemed genuinely interested in the concept of restitution. "I was intrigued," she began, "by your insistence that retribution serves no useful purpose, and that viewing restitution as an essential element of punishment is more logical. I wonder how that would work, though, if the defendant has little money with which to pay his victim."
Perhaps I was a bit too quick with my reply. Restitution need not take a monetary form. If the criminal defaced property, let him restore it to its original condition. If he injured someone, let him learn something about pain and suffering, perhaps by changing bedpans at a hospital. No form of punishment is perfect, for this is an imperfect world. But whenever possible, restitution should be the preferred mode of punishment.
She persisted. "That makes sense enough in a criminal prosecution for a hate crime. The judge can sentence the miscreant to some sort of community service. But what about the civil suits you mentioned? Do you think restitution makes sense in that circumstance?"
"Well, that would be up to the plaintiff, wouldn't it?" I shot back. "If the aggrieved party feels some proposed form of restitution is adequate compensation for his injury, he should be free to accept it. I realize that the traditional role of judges and juries might need some revision to make this idea work, but isn't it worth a try?"
Deftly she sprang her trap. "But how is the plaintiff to pay for his legal representation if he can't get money from the defendant? My client might be happy seeing the criminal scrubbing the graffiti off a few garage doors, but that's not going to pay my fee!"
There was a certain note of triumph in her voice, which was met with a quiet sadness in my own as I phrased a delicate reply. "I see what you mean. Unless the victim of the crime can afford to take the case to court himself, this type of prosecution and settlement will probably never happen. But what if we abandon the principle of restitution? Who will pay your fee in that case? The defendant? Aren't most of the perpetrators of hate crimes relatively poor anyway?"
We were at an impasse. She regarded me coolly, then tossed her head back and said, "You sound just like my husband. He tells me he's beginning to think like a libertarian." I had to laugh at this. "Tell your husband he has remarkably good taste in politics -- and in women."
I drifted through the dissipating crowd. There was Julie Tolleson, talking with a small group of friends who had circled the armchairs. Spying an empty chair I took a seat, and soon had a chance to thank Julie for her presentation. "Although I didn't agree with all the points you made, I felt you presented your side of the argument honestly and forcefully," I told her. "The one thing I can't understand is how a law which regulates the behavior of individuals can be justified in the name of the greater good of society. Shouldn't we think in terms of justice for each individual member of society?"
She responded enthusiastically. "You Libertarians have some interesting ideas. But why are you so concerned about the individual members of society? Can't you see that the good of the whole is more important than the good of any one of its parts? Isn't it clear to you that social justice is the end toward which the law must strive?" Sensing that this might easily develop into another lengthy debate, I mumbled something noncommittal, then shifted the discussion in the direction of what Julie and her friends at the Colorado Legal Initiative Project hoped to accomplish during the next session of the general assembly.
We parted amicably -- and with our irreconcilable opinions intact. So it went throughout the evening. Several students acknowledged the logical force of the arguments I had advanced, but most seemed eager to have the government intervene, somehow, to reduce the already small number of hate crimes even closer to zero.
II
So what position vis-a-vis hate crimes should a principled Libertarian take, anyway? I've been turning this question over in my mind ever since the panel discussion last November, and have arrived at a number of conclusions. These conclusions are of course my own -- so far as I'm aware, the Libertarian Party has not yet taken a definitive official position on hate crime legislation in general.
First, I see no proper place in a system of civil government for laws that attempt to regulate the content of people's thoughts. Not only are such attempts doomed to fail -- in my opinion they are also anathema to the principles on which a free society must be based.
Let us consider a few relevant provisions from the current Libertarian Party Platform. In the Preamble we read that "... respect for individual rights is the essential precondition for a free and prosperous world, ... force and fraud must be banished from human relationships, and ... only through freedom can peace and prosperity be realized."
This constitutes a general limitation on the laws Libertarians can accept. Laws serving only to banish force and fraud from human relationships are acceptable. Laws doing more than that are not. Clearly any law which regulates the contents of people's thoughts goes too far. Thus we must reject on principle any hate crime laws which punish people's thoughts or their peaceful, non-aggressive actions. Only when an individual's behavior infringes by force or fraud on another's right to seek his own happiness can government intervention be justified. This is made clear in the Platform plank on Freedom and Responsibility:
"We believe that individuals should be free to make choices for themselves and to accept responsibility for the consequences of the choices they make. We must accept the right of others to choose for themselves if we are to have the same right."
What about a second type of hate crime law, which seeks not to regulate people's thoughts per se, but only to prohibit certain types of behavior deemed offensive to the protected group? Here we may obtain some guidance from the Platform plank entitled Individual Sovereignty:
"The only legitimate use of force is in defense of individual rights -- life, liberty, and justly acquired property -- against aggression, whether by force or fraud. This right inheres in the individual, who -- with his or her consent -- may be aided by any other individual or group."
Since this right of self-defense inheres in the individual, and since government derives its authority from the consent of the governed, it is clear that government's power to defend individuals from acts of aggression extends no farther than the individual's right to defend himself. In the absence of a statutory law, would we hold that a black man is justified in using force to prevent the Ku Klux Klan from burning a cross on his front lawn? Yes, because he is defending his own property. What if the KKK burned the cross on their own property, across the street from his house? No, because they have not actually trespassed on his life, or liberty, or property. If a purported "victim" has no inherent authority to defend himself from another's action which offends but does not threaten him, neither does the government possess the constitutional authority to ban such offensive actions. In our hypothetical example, the dividing line between offensive conduct and criminal conduct is the point at which the target fears for his own safety, or the safety of his family and his property.
What about demonstrations against gays? Should the laws allow a religious ministry to picket a gay bar with signs that say "God will punish you"? Yes, so long as the picketers stay off the gay bar's premises and do not constitute a hazard to the bar's patrons or employees, or to the general public. No, if their conduct causes anyone to feel a reasonable fear for his own safety, or the safety of his property.
Finally, let us consider a third class of hate crime laws -- laws similar to Colorado's ethnic intimidation statute, which define a new crime in terms of the perpetrator's demonstrated bias against a person because of that person's race, or religion, or sexual orientation in connection with aggressive behavior, such as assault and battery, or vandalism, which in itself clearly constitutes criminal force. Should Libertarians support laws which criminalize the intent to victimize members of particular classes in such cases? If so, why? If not, why not?
In this instance I can find no clear-cut guidance in the Party's Platform, so I am forced to reason indirectly from the plank on Individual Sovereignty, and by analogy with well-accepted principles of the common law. The example which springs immediately to mind is the crime of murder. The common law (and the statutory law in every American jurisdiction I ever heard of) recognizes three kinds of homicide: first-degree murder, committed with pre-meditated intent; second-degree murder, committed in the heat of passion; and third-degree murder, or manslaughter, defined as a crime of negligence, or lack of due care. In this third case, intent is entirely missing.
We are all familiar with these distinctions, and most of us accept them without question. But have we ever stopped to consider why the law makes these distinctions? In particular, if the state derives its power to punish the criminal from the individual right of self-defense, how can we justify punishing one kind of murderer more severely than another?
Think for a moment not of an actual, completed murder, but of an attempt upon your own life. Suppose you were able, somehow, to stop the murderer before he actually killed you. Would you feel personally justified in basing the punishment you would mete out upon the specific intent of your assailant? Do the three classes of murder established by law make sense to you, personally?
When I think this through I can see a clear-cut reason for punishing the would-be murderer who pursued me with a specific intent very severely indeed. I would feel justified in taking his life because of my own personal right of self-defense, even after I had managed to render him temporarily harmless. Since he has formed the specific intent to kill me and has acted upon that intent for some extended period of time, I cannot be safe unless he is rendered incapable of doing what he wants to do. And I would expect my neighbors to support me in this determination since they might reasonably fear that this individual, should he succeed in killing me, might one day very well constitute a threat to their lives too.
What about the person who loses his self-control in the heat of passion and attempts to take my life? If I somehow managed to render him temporarily harmless, would I feel justified in dealing with him as severely as if he had deliberately pursued me with the intent to kill? Almost certainly not. In the first place, if the heat of passion were really present, I myself might have been somehow at fault in the whole altercation. In the second place, my own anger usually cools rather quickly. If I truly recognized what had driven my assailant to lose his cool, I would incline toward mercy. Finally, my neighbors would hardly consider this person a terrible threat to their own safety. He didn't set out to harm anyone intentionally -- he snapped under stress. Clearly he is less of a threat to my health and safety-- and to my neighbors' -- than the man who stalked me relentlessly.
OK, what about the fool who negligently cut down a tree that fell across the fence into my yard? If I were away from home at the time, this would damage my property, but it would not endanger my life. If I had been home at the time, I might have been forced to jump out of the way to avoid being squashed like a bug. No doubt I would have been hot. But since my negligent neighbor would probably be apologizing profusely at just this moment, or since he might even have hollered "Look out!" when he saw the tree falling in my direction, I could not possibly feel justified in actually killing him afterwards and then calling it self-defense. In fact, if the incident merely frightened me, and if I thought there were extenuating circumstances, I might eventually come to believe that my neighbor hadn't even been negligent. I might decide to chalk it all up to simple bad luck instead.
From this line of reasoning it is clear that the common law distinction between three classes of murder is indeed consistent with the Libertarian ideal of the right of self-defense and with the general principle that government derives its just powers from the rights which people surrender when they transfer some of their personal authority to it. Can we carry this argument over to the third category of hate crime laws? Is there an analogous element of intent present in some cases of assault and battery, or of vandalism?
At first blush the answer appears to be yes. Consider a hypothetical case in which an individual, because of an unreasoning hatred toward Libertarians, deliberately seeks me out, threatens me, and then beats me. This is a case of assault and battery. How far should I go to defend myself from my assailant? What punishment would be justified? In particular, would I be justified in meting out a greater punishment to this assailant than if he had somehow chosen me entirely at random?
This hypothetical example bears some superficial resemblance to the case of first-degree murder we have already analyzed. My assailant did not commit his crime in the heat of passion. He did not attack me negligently. He did form a specific intent to harm me because I am a Libertarian. I might reasonably conclude that the probability this particular person will seek to harm me again is heightened because there aren't very many Libertarians in my neighborhood. I might even feel (irrationally) that his hatred of Libertarians merits some special punishment.
So yes, there are some similarities between this hypothetical example and the case of murder with specific intent. But there are also some important differences. My assailant's evil intent did not fasten directly on me. Initially he intended only to harm a Libertarian. In the end, mere circumstance made me his victim, and in this sense he selected me at random. Moreover, most people would not consider his hatred of Libertarians to be more dangerous than some less specific form of misanthropy. My neighbors would think of my assailant as a garden-variety thug -- unless they also happened to be Libertarians.
And this, I think, is the sticking point for Libertarians when it comes to hate crime laws which criminalize the element of bias toward a particular group. As Libertarians we all agree that rights inhere in the individual. We deny the existence of collective rights which are not drawn from the rights of each individual composing the group. On this ground alone Libertarians ought to oppose the passage of laws which criminalize the element of intent based on bias toward or hatred of a particular class of people. Let the law prohibit force and fraud, and there make an end of it.
III
If we cannot use the laws to eliminate hatred from society, how shall we abolish it? All of us can agree that hatred is an ugly thing, and that each of us would benefit personally if it disappeared. As Libertarians we do not wish to compromise our principles by basing some laws on faulty premises. How shall we proceed?
This consideration brings us back to the first criterion I proposed to the students at DU last November. Does the problem we wish to solve fall properly within the province of the law? We have already seen that this particular problem, the existence of hate and bias within human society, does not. Logically, then, any proposed solution to this problem must be pursued outside the courts if it is to succeed.
The very first step in this process is obvious. We must eliminate every form of institutionalized bias from the laws, from the courts, and from the police departments of America. Fifty years ago racial segregation was written into the law. All those laws have now been overturned. Yet many statutes which express bias toward homosexual people still remain in full force and effect. We cannot eliminate hatred from society at large until the law becomes as blind toward race, and religion, and sexual orientation, as Justice herself is supposed to be.
But there is a larger battlefield than the halls of justice -- it is the hearts and minds of our fellow men. Hatred lives within the minds of individuals, and it is there and there alone that it can be defeated. Let us begin by examining our own attitudes toward our neighbors. Am I as tolerant of my neighbor's quirks and peculiarities as I ought to be? If not, I must change myself. That is the only real and lasting change within my power to make.
And what of those others who will not immediately consent to examine their own minds? What can I do to help them? Let me first make them aware that there are standards of civil conduct, and that I am willing to enforce those standards when necessary. Force and fraud are prohibited. But beyond that, let me be an example to them with my own words and deeds. Let me show them by my life there is a better way.
This method for achieving greater love and understanding is not quick, and it is not easy. But it is the only one that can ever possibly work.