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The big chill

Politics | Critics worry about the effects on free speech of recently expanded hate crime laws

Issue: "Do the math," Nov. 7, 2009

WASHINGTON-Daniel Scot fled his native Pakistan in 1986 after receiving a blasphemy conviction for converting from Islam to Christianity. He settled in Australia, where he started an organization to educate Christians about Islam-only to be prosecuted again for his speech in 2002, this time by an Australian court.

The Australian province of Victoria had religious hate speech laws at the time, providing higher penalties for any conduct that may "incite" hatred of others on religious grounds. On that basis, the Islamic Council of Victoria brought charges against Scot for his lecture on Islam, and in 2004 a judge sided with the Islamic Council, ordering Scot to pay court costs and take out $70,000 in apology ads in newspapers. An appeals court eventually overturned the ruling in 2006, and the laws have since been revised to protect speech more fully.

Newly expanded hate crime laws in the United States don't have the hate speech language that such laws in Europe and Australia have, but the new laws could allow prosecutors to use speech that allegedly incites hate crimes as evidence in hate crime cases. Those who are concerned about the laws' effect on free speech say that a pastor who preaches against homosexuality could be held to account for his speech if one of his listeners committed a hate crime after a sermon.

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The bill, passed by the House on Oct. 8, has protections for speech written in: "Nothing in this division shall be construed to allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs." But there are exceptions, such as cases with a "compelling governmental interest" or if the speech is intended to "incite an imminent act of physical violence."

"Such calculated legislative vagaries have proven time and again to exceed traditional and legal readings, and lead to greater government involvement," wrote Marshall Sana, Islamic expert at the Barnabas Fund, in an email.

Even if speech prosecution doesn't become a reality, the worry persists that these laws could have the effect of chilling speech. Congress passed the laws under the radar, tagging them onto a must-pass defense spending bill in order to avoid inevitable amendments to the bill from the Senate (see sidebar). The bill is a product of three years of attempts to expand laws to include protections for crimes based on sexual orientation.

Gay-rights groups have pushed fervently for the new laws, but they are also likely to be helpful for Muslim groups because they address those who "incite" crimes. Mark Durie, an Australian scholar who testified during Scot's trial, said at a lunch in Washington recently that because Islam does not separate the speech from the person, Muslims tend to believe that others must respect not just them but Islam. "Speech about Islam is a sensitive issue for Muslims and Muslim states," he said.

Anglican bishop Michael Nazir-Ali, a man with a bald pate but white hair ringing his head like unspun wool, has felt the heat of criticism for some of his comments about Islam-though his manner is more lamb than lion. Last year he and his family received death threats after he said that certain Muslim communities in Britain had become "no-go" areas because of threats to non-Muslims. Pakistan-born, he resigned from his position as Anglican Bishop of Rochester earlier this year to work on behalf of persecuted Christians globally.

The British law against inciting religious hatred, he told me, "has had a dampening effect." In Birmingham, England, in 2008, police threatened to arrest two pastors who were passing out pamphlets and talking with youth in a primarily Islamic part of the city, saying they could be charged with a hate crime. "This is a concern about a police state that seems to be emerging more and more-a thought police," he said. "That would be a very regrettable development."

Could the new American laws lead the United States in a similar direction? Alia Malek is a former civil-rights lawyer at the Justice Department and author of A Country Called Amreeka. She doesn't support hate crime laws, but unlike other critics she believes the new laws provide sufficient protections to keep them from being threats to free speech. "We have had hate crimes [laws] for a long time and it hasn't chilled speech. We're not like Europe," she told me. "Jeremiah Wright never got prosecuted, but he got his answer from society." Other critics say that was before the new bill.


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