Criminal laws that punish discriminatory “hate crime” offenses relating to race, religion, ethnicity, sexual orientation, gender, and other status characteristics trace their roots back to the nation’s founding. Unlike today, in early America, status distinctions in law, particularly racial ones, were intended to restrict the exercise of civil rights. Today’s hate crime laws are the refined modern progeny of an important class of remedial post–Civil War laws and constitutional amendments. Although the Supreme Court has vigorously upheld enhanced punishment for hate crimes over the last decade, it has also established restrictions on the government’s authority to punish bigoted conduct and expression. This article examines, through an analysis of historic cases, laws, and constitutional changes, the legal evolution that culminated in the passage of modern hate crime laws.
State and federal hate crime laws punish crimes involving discrimination on the basis of a person's group characteristic, such as race, religion, sexual orientation, national origin, gender, or disability. The Supreme Court has refined the definition of hate crime through decisions which affirmed one type of hate crime law, but rejected another. Punishing hate crimes is consistent with the traditional aims of our criminal justice system. Our criminal laws consistently enhance penalties for seemingly similar conduct based on the risk, severity, and context of a particular crime. Carefully drafted hate crime laws punish conduct that is objectively more dangerous to victims and society.
American extremists have traditionally cultivated technology to enhance efficiency and promote goals. This article concentrates on how domestic right-wing and other extremists have used computer networks to these ends. Although the concept of a guerrilla insurgency through “leaderless resistance” became a factor in right-wing extremist movements before the Internet's advent, cyberspace hastened its popularity. The Internet has been useful to hatemongers and extremists because it is economical and far reaching, and online expression is significantly protected by the First Amendment. Various court decisions have established that not all communication is protected, in cyberspace or elsewhere. Although the government cannot regulate Internet expression because it offends sensibilities, it can regulate expression that constitutes crimes that fall under various unprotected areas of speech. Courts have convicted hatemongers who use the Internet to communicate threats rather than merely ideas. Private service providers and foreign governments have greater latitude to prohibit offensive and hateful expression that does not constitute a threat.
During the last 150 years, New York's remarkable diversity has been both a blessing and a challenge to its police force and its citizens. With the city more populated and diverse than ever, one might expect crime and intergroup conflict to be rampant, when in fact the opposite is true. Although New York is not quite Utopia, the New York Police Department's (NYPD) impressive multiyear effort at combating crime and hate crime in particular has created a noticeably safer and more civil city. Data show that after the state passed new legislation and the NYPD increased support for its Hate Crime Task Force, hate crime in the city dropped dramatically—an important lesson for other cities.
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