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Hateful Legislation

Sheila Jackson Lee’s new bill makes a mockery of our constitutional order.

"Expand The Court: Save Our Democracy" Press Conference Live From The U.S. Capitol
Rep. Sheila Jackson Lee (D-TX) speaks at a press conference calling for the expansion of the Supreme Court on July 18, 2022 in Washington, DC. (Photo by Jemal Countess/Getty Images for Take Back the Court Action Fund)

In 2016, as he carried out the heinous massacre at the Pulse Night Club, Omar Mateen held a group of men hostage in one of the club's bathrooms. As he stood outside the door, he asked one of the hostages whether any black people were inside. "You know," Mateen reportedly said, "I don't have a problem with black people."

A man who was in the process of murdering 49 people was concerned about whether he would be thought a racist in the aftermath. It is a testament, of sorts, to the tremendous stigma attached to open displays of racism in the United States. Every American institution, from colleges to employers to churches, is arrayed in formation against "white supremacy," both real and imagined. Racism has never been a more minor feature of American life than it is in 2022, but some legislators see the threat of "white supremacy" as a pressing national crisis that requires unprecedented violations of our constitutional order.

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Earlier this month, Rep. Sheila Jackson Lee introduced the “Leading Against White Supremacy Act of 2023.” The bill would amend the 1968 Civil Rights Act to include crimes motivated by "white supremacy" as federal hate crimes. It would also create criminal exposure for people, deemed conspirators, who "published material advancing white supremacy, white supremacist ideology, antagonism based on 'replacement theory', or hate speech that vilifies or is otherwise directed against any non-White person or group" if their materials "could motivate" a person who is "predisposed" to commit a "white supremacy inspired hate crime."

The bill is unconstitutional on its face. It proposes criminalizing protected speech and prosecuting those who "vilif[y]" non-white people. It certainly would not pass muster with a conservative-controlled Supreme Court. But the fact that it makes a mockery of American legal norms and constitutional protections is almost the least interesting part of the bill.

Lee's bill does not, for example, define "white supremacy." To the progressive base, this is a feature, not a bug. It provides the blank check necessary to transform every aspect of American life, from the way we speak to one another to the types of material we publish online. They are always telling us white supremacy is everywhere, from standardized tests to low-hanging bridges in New York. Creating felony exposure for people who promote what progressives call "white supremacy"—defending gifted education programs, say—would be the most significant expansion of state power in American history.

Another remarkable feature of the bill is its failure to include parallel language that criminalizes the promotion of black supremacy. It would exclusively criminalize speech directed at "non-White person[s] and group[s]," fulfilling the longstanding aim of progressive activists to deny hate-crime protections to white victims. Consider the ACLU, which its amicus brief in the 1993 case Wisconsin v. Mitchell asked the Court to "be vigilant to ensure that [hate crime] penalty enhancement statutes do not themselves become vehicles for discrimination against minority groups." (Mitchell weighed the constitutionality of a 1989 conviction against a group of black men who had assaulted a white teenager.) Jill Tregor, former director of the nonprofit Intergroup Clearinghouse in San Francisco, said white victims were using hate crime laws to increase penalties against minority offenders, and said the number of reported victims of anti-white crimes represented "an abuse of what the hate crime laws were intended to cover." Lee's bill covers only non-white victims, and is a sop to the progressive movement's decades-long attempt to deny white victims hate-crime protections.

The last two pieces of note are both related to progressive bugbears—"replacement theory" and "stochastic terrorism." Lee's bill would criminalize the promotion "replacement theory," which is an electoral strategy promoted by progressives to import future voters from the developing world and dilute the political power of American citizens. That provision would never, if enacted, be used against Dick Durbin, but it would be used against you, and would have the effect of quashing dissent on immigration. And the predicate of the "conspiracy" element of the bill, creating criminal exposure for people who publish "white supremacist" content online, is the concept of "stochastic terrorism," the idea that people who publish "hateful" content online are responsible for the acts of terrorism committed by people who might read their work or engage with their content. By this standard, 19th-century critics of capitalism would be indirectly responsible for later atrocities carried out in the name of Marxism.

The legal philosopher Lawrence Crocker said that someone "who commits a racist assault with some awareness of the history of racism is not merely of worse character than the ordinary assailant," but the act he commits "is itself morally worse." That might be true, but to the person punched in the face, the pain is just the same regardless of your assailant's relative "awareness of the history of racism." The law does, and should, make distinctions based on an offender's motive, culpability, and criminal history. But it's not at all clear that it should carve out a category of crimes motivated by "hate," when it's no more nefarious a motivation than, say, lust, greed, or pride.

"Hate crime" is a dubious category. But if it is to exist, Lee's bill makes a mockery of it, and should be rejected.

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