End thought crimes in Nevada

The Nevada Legislature is hell bent on adding another offensive opinion to the list of enhanced penalties prosecutors can seek when a criminal is motivated by what the lawmakers define as “hate.”

Senate Bill 139, sponsored by Sen. Pat Spearman, provides “an additional penalty for certain crimes motivated by the victim’s gender identity or expression,” the additional penalty being 1-to-20 years in prison.

In other words, assaulting someone because he or she was gay could carry a heavier penalty than merely assaulting someone.

Unfortunately, state law already provides extra protection to victims of crime motivated by dislike of those victims’ “race, color, religion, national origin, physical or mental disability, or sexual orientation.” That raises substantial questions about equal protection under the law. Why are some citizens entitled to greater protection than others? The great civil libertarian Nat Hentoff quoted a woman whose rapist received a lighter sentence than that handed out in a “hate crime” rape case: “Was what happened to me of less importance to the law than what happened to my friend?”

But more important, these thought crime laws serve to punish opinion. And once offensive opinion can be punished, it’s a short hop to punishing unpopular opinion.

In a deplorable incident, Sen. Spearman was once attacked by a group of white men while she served in the military. But that attack was already subject to criminal prosecution. The only thing enhanced penalties would have changed is putting government in charge of establishing what are and are not acceptable thoughts. And acceptable thought has a way of evolving. Fifty-six years ago this week, the federal government indicted Confidential magazine and its distributor on charges of sending obscene material through the mails. The material was information on abortion.

Sen. Spearman quoted Martin Luther King Jr.: “The moral arc of the universe bends toward justice.” So it does, one hopes. But establishment of acceptable opinion and enforcement of state-approved opinion carries us away from justice. In the same speech, Dr. King said, “It’s a dark day in our nation when high-level authorities will seek to use every method to silence dissent.”

Noting that the courts have upheld wide-ranging inquiries into defendants’ opinions years earlier, Hentoff wrote, “Watch what you say, and try to remember what you have said in the past. Other prosecutorial questions also may include magazines or other publications you read, or even which recordings you listen to.”

In addition, once hate crimes are established it becomes easier to suppress other forms of expression. This is not just the “slippery slope” argument. It has happened. In Connecticut and New York, for example, the legislature has moved on from thought crimes to thoughts, by outlawing the display of what they consider hateful symbols—specifically, nooses. These laws move beyond prosecutable violence and instead criminalize pure opinion.

This should be dealt with at the legislative level. Once the laws are on the books, judges are reluctant to hear challenges. Among those not permitted to sue to overturn thought crime laws are the American Family Association, several Michigan ministers, and 16 Ohio Amish residents.

The crimes at issue are already illegal. SB 139 should be defeated and other similar laws repealed.