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Editorial: Hate, speech and the law

New legislation poses a dilemma

Monday, December 02, 2002

We have mixed feelings about a bill now before Gov. Schweiker that would expand the state's Ethnic Intimidation Act to cover crimes motivated by the victim's sexual orientation or disability.

It isn't that perpetrators of "hate crimes" should go unpunished. The problem with so-called "piggyback" laws like Pennsylvania's Ethnic Intimidation Act is that the same act of violence or intimidation can be punished more severely depending on whether the victim belongs to one of several enumerated groups.

Assault a fellow human being while saying nothing brings one sentence; assault him while mouthing an ethnic or religious slur might bring another. The difference is that the second assault is driven by a "malicious intention" toward a minority group. The danger of this "enhanced penalty" approach is that people will be punished not for their acts but for their opinions.

Under the Pennsylvania law, one of the underlying crimes that would trigger the Ethnic Intimidation Act's extra penalties is "harassment by communication." Traditionally "harassment by communication" has referred to crank or repetitive telephone calls or the sending of threatening letters. The danger of using a conviction on this charge as a springboard for an ethnic intimidation charge is that, through a kind of legal double bookkeeping, speech will be deemed "harassment" because of the opinion it expresses.

After the state House approved extending the Ethnic Intimidation Act to include sexual orientation, one critic worried that an evangelist who publicly argued that the Bible condemns homosexuality could run afoul of the law. The practical danger of such a prosecution might be slim, but the possibility is certainly there.

The Post-Gazette long has supported legislation to outlaw discrimination on the basis of sexual orientation in housing and employment. We also have supported a federal program under which hate crimes against homosexuals are logged separately, so that investigators can better track where and when such attacks occur.

However, we have questioned the idea of "hate crime" legislation that allows the same crime to be punished more or less severely depending on the characteristics of the victim. Not only do such laws have the effect of blurring the common humanity of all victims of crime; they also pose practical problems.

If a mugger of one race uses a racial epithet while snatching the purse of someone of another race, is that a "hate crime"? Better for the criminal-justice system to punish the act -- harshly -- and not speculate about the motive.

The dilemma posed by the latest amendments to the Ethnic Intimidation Act is that they tinker with a flawed concept rather than re-examine the concept itself. So the question is whether a law that provides special solicitude for some minorities that have experienced discrimination should be expanded to others.

Framed that way, we can see why Gov. Schweiker would sign the bill. "Gay bashing" -- attacks on homosexuals because of their sexual orientation -- is a reality in this society. ("Hate crimes" against the disabled seem to be less of a problem.) If the state provides additional penalties for bias-motivated crimes, it arguably should be consistent.

But even if Gov. Schweiker signs this bill, the larger question of enhanced penalties for "hate crimes" should be revisited by the next Legislature and governor. The goal should be to punish acts, not thoughts.

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