A Clumsy Law Out of the Very Best Motives : St. Paul hate-crime ordinance is too broad

At a time when a former grand wizard of the Ku Klux Klan plans to run for President of the United States, it’s important not to be too quick to dismiss the need for laws that penalize “hate crimes.” It’s no coincidence that in the last several years 46 states, including California, have seen a need to codify an American ideal--that this society will not allow people to be terrorized because of their race, ethnicity, religion, sexual orientation or gender.

INTENTION VS. EFFECT: And thus if a law could be measured by its good intentions, the St. Paul, Minn., hate-crime law now being challenged in the U.S. Supreme Court would be unassailable. But it is not the intent of a law that matters most, but its effect. That’s why the St. Paul ordinance has national implications and is pitting civil libertarians against other civil libertarians. One group is arguing for the need to stand up against bigots (correct) versus the need to protect the free-speech guarantees of the First Amendment (also correct).

The only real problem, and potential danger, is that the St. Paul law is poorly written: “Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”

That law is being challenged by Robert A. Viktora. One early morning last year Viktora and several other white youths allegedly ignited a wooden cross on the lawn of Russ and Laura Jones, who, with their five children, were the neighborhood’s only black residents.

There is no question that burning a cross on someone’s lawn is against the law; criminal trespassing and/or vandalism laws would easily cover the offense. The question is whether the bigots who made a cross from legs of a broken chair should be prosecuted based on the obvious crime of trespassing or because of the offensive idea they were expressing.

The principle of free thought, said Justice Oliver Wendell Holmes, is “not free thought for those who agree with us, but freedom for the thought that we hate.”

Of course lofty quotes were not on the minds of Russ and Laura Jones as they looked from their window in horror to see on their front lawn the ultimate fiery sign of racial terrorism. It only seems right, the Joneses say, that there be a special way to punish people who inflict their hate upon others.

There should be, and there is. Many states, including California, provide for “criminal enhancements” in the law as a way of demonstrating the seriousness and particularly cancerous nature of hate crime in a nation of all creeds and colors. Such “enhancements” add jail and/or fines on top of penalties already levied against a criminal if, besides the vandalism, trespassing or assault, there is a hate crime.

POTENTIAL ABUSE: But the St. Paul law, as written, is open to abuse. Could it mean, as some critics suggest, that an artist could not display a painting of a burning cross or a swastika, or that a picture of a fetus could be an illegal symbol in the battle over abortion? All of these could, as the statute says, arouse “anger, alarm, or resentment.”

As in some of the “politically correct” speech codes instituted on many college campuses, the St. Paul ordinance makes clumsy work out of noble intent.

Certainly it’s criminal to burn crosses on lawns; various laws can and should be invoked. But let’s not hand the haters any opportunity to self-righteously paint themselves as “victims” of any law--and make it all the easier for hate promoters like David Duke to exploit the role of the underdog.