A recent column by the NY Times’s Bill Keller really bugged me. I have read Mr. Keller’s work in the past, especially the pieces he would occasionally publish when he served as Editor of the Times. So I was especially concerned that such a thoughtful, smart journalist and pillar of the liberal establishment could seem to grasp so little of the essence of civil rights laws. He wrote on April 3, 2012,
“We will punish you for the act, and then we will punish you more or less on top of that depending on what was in your heart. That, to me, strays into a kind of social engineering that I don’t think societies are very good at. Indeed, one lesson of the Tyler Clementi and Trayvon Martin cases is how ready we are to leap to conclusions about what’s in someone else’s head.”
I would happily take him to one triple-decker at 36 Melbourne St. in Dorchester, firebombed three times in 1982, to illustrate why civil rights crimes — also known as hate or bias crimes – are a distinct category of offenses in Americans’ lives and in American law. While there he could read the reporting on the subject from June of that year of the great and heroic former Timesman, Dudley Clendinen.
RACIAL VIOLENCE IN BOSTON FORCING BLACKS TO MOVE
By DUDLEY CLENDINEN, Special to the New York Times
Published: June 2, 1982
BOSTON, June 1— Grace Egypt Walker was born black in Augusta, Ga., 31 years ago, but it was not until the last six months, she says, that she encountered racial epithets, stone-throwing, hard shoves, drawn knives and a gasoline bomb hurled through her window.
Those encounters came here in Boston when she moved to Melbourne Street, in a neighborhood of Dorchester that is steepled with churches and hung with American flags, and has been gradually changing over the last 10 or 15 years from working-class Irish and Roman Catholic to something more ethnically and economically mixed.
But the change was not accepted on Miss Walker’s block, and now, after six months of racial fighting, fear and tension, a gang of white teen-agers has won an ugly little war. The Walkers and two other black families on welfare are moving out.
Mr. Clendinen’s words, “racial fighting…ugly little war” suggest offenses distinct from arson, assault, and assault and battery. One school of thought believed, by the way, that white politicians of the era and other adult stakeholders in the status quo ante had cynically fire up the white male teens to “defend” the community. They sought to maintain power by driving their Black neighbors from their homes.
I think if Mr. Keller read Mr. Clendinen he would get some re-schooling on two fundamental points.
1. As Bill Keller knows better than I, laws profess our common values and priorities. Ideally, they tell us and anyone watching us what we believe is right by seeing what we sanction as being wrong. Of course, as a nation we experience a pretty big gap between our professed aspirations and our behavior. Our 236 year-old (and counting) wrestling match with slavery and race prejudice is one example.
2. A civil rights offense is a distinct crime. Our laws profess that such an act offends “We the people” more deeply than does the setting of the fire per se. As the US Department of Justice defines civil rights offenses on its web page, they are “the violent interference with liberties and rights defined in the Constitution or federal law.”
If someone deliberately sets a fire at the home of a NY Times employee for profit or pleasure, that is an arson. They can have all the most vile notions in their heads, but the crime is arson. Should that person firebomb a NY Times employee’s home because evidence shows that he intended to deprive the NY Times employee of the right to live there, that’s a civil rights violation.
Civil rights laws are concerned with evidence of intent to deprive a victim of his civil rights. A person of one skin color can kick the hell out of one of another. But absent evidence that the kicker intended to deprive the kickee of his rights — the right to use a public place, the right to work free of fear, to live in her house, to go to school and etc. – the act is not a civil rights violation. A crime committed to deprive a person of a right based on that person’s status — skin color, gender, sexual preference, etc. — offends Americans particularly deeply. We have codified in law our belief that these acts are distinct. But the authorities need to show evidence of intent. They may not just assume that an offender had formed intent because he is gay and his victim is straight. Opponents of civil rights laws can relax. As yet, police and prosecutors have no machine for reading minds and hearts. And the First Amendment yet protects what’s in them. Indeed, many significant holdings on free speech by the Supreme Court have come in cases that protected hateful speech.
The misapprehension about evidence of intent in civil rights law is widespread. In today’s Boston Globe the owner of the Washington Capitals urges that racist Bruins fans who transmitted racial epithets on social media should “pay a huge price for their beliefs.” These cowardly haters – and that is the only kind — verbally attacked Joel Ward, who is Black, for scoring the series-winning goal in a Stanley Cup quarter-final. Nine out of 10 Americans find such beliefs abhorrent but under our rules and values the state may not punish the cowards for their beliefs. (I fear if we gave these cowards the thrashing I feel they deserve we would be violating our own values. Damn.)
Should our local haters cross the line to take action on their beliefs, these professions of hatred and bigotry would become evidence of intent in a civil rights crime. The twisted tweets would show intent to deprive Mr. Ward of his civil rights and liberties because he is Black.
In my view, as we continue to evolve as a diverse nation, we need our civil rights laws more than ever.