Diversity vs. Freedom (contd.): What First Amendment?

The state of Idaho seems an unlikely place for totalitarian government to pop up, but in recent months that's exactly what has begun to emerge there. Under the state's "hate crime" statute, a perfectly law-abiding citizen is being prosecuted for using a racial slur—and faces a ruinous five-year term in the state prison.

"Hate crimes" have always consisted of acts that are already criminal—acts of assault, murder, robbery, etc. — but are supposedly aggravated by the use of racial or other kinds of slurs or expressions held to indicate "bias" or "hate" as motivating the crime. Critics of the concept of "hate crimes"—most especially yours truly—have always argued that it was only a matter of time before authorities sought to separate the expression of thought from the criminal act and try to criminalize the expression and the thought themselves. That's exactly what's happening in Idaho.

The case concerns a man named Lonny Rae, whose wife, Kimberly, worked as a staff reporter and photographer for their local newspaper in Council, Idaho. Last October, after a particularly heated high school football game, Mrs. Rae took a few photographs of the referees as they left the field.

An official ordered her not to take the pictures, so she didn't, and turned to leave with her husband. Then, Mrs. Rae found herself grabbed from behind and dragged backward by a black official who also grabbed for her camera. Mrs. Rae was pulled by the strap on the camera around her neck, and she screamed for her husband to help her.

Mr. Rae ran to her aid as her attacker, more than six feet in height and 250 pounds in weight, was still trying to grab the camera. Mr. Rae pushed him back and in a rage yelled to the other officials, "Tell that nigger to get out of here, 'cause I'm gonna kick his butt."

Mrs. Rae had to be treated for her injuries in a local hospital, and two days later the couple went to the city prosecutor to bring charges against the man who had injured her. As it turned out, it wasn't her assailant who had to face legal charges.

It's Mr. Rae himself who now faces charges, because, by uttering the N-word, he supposedly violated a "hate crime" statute outlawing "malicious harassment." Originally brought by the city prosecutor, the charge was turned over to the state and increased to a full felony offense carrying a sentence of five years in the state penitentiary. To date, no charges have been brought against his wife's black assailant. After the usual crusade by the local media to expose the "bigot" and "hate criminal," Mr. Rae and his wife were banned from the grounds of the high school where the attack took place, even though they had children who were students there. Mrs. Rae also lost her job with the local paper because, she was told, local advertisers threatened to pull their ads. When their money ran out, the couple was evicted from their trailer home, and they've lost the equity they'd built up in it. In short, even before Mr. Rae has even been tried, he and his family have been ruined.

Their one supporter is their lawyer, a man named Edgar Steele, who agreed to take their case for no payment. Nobody defends the slur that Mr. Rae yelled in anger when he saw his wife assaulted, but Mr. Steele sees there's more involved in the case than that. His defense is precisely that the state "hate crimes" statute is slyly being converted into a law for the criminalization of speech itself.

Under "hate crime" laws, Mr. Steele says, "some actual criminal act in conjunction with the hate speech is required before one can be charged. We haven't yet reached the point of criminalizing mere speech or thought.” However, the Adams County Thought Police have applied Idaho's little-used Malicious Harassment statute in such a way as to achieve that very result in Lonny Rae's case. Thus, while the statute may be constitutional, its usage today by the Adams County Thought Police is clearly unconstitutional and an affront to all who value the right to speak their mind without fear of government interference."

Mr. Rae may win his case—if he and his lawyer are willing to fight it for the next several years—and Mr. Steele might even be technically right that in this country, "we haven't yet reached the point of criminalizing mere speech or thought." But the mere fact that local and state prosecutors even brought their case against Mr. Rae and that even before he went to trial the defendant had effectively been ruined should tell us something: The tyranny that hate crimes statutes have already planted in this country's laws is blossoming.

August 13, 2001