Hate crime charge well explained

Image from LA County DA Hate Crimes unit.

One of the many important observations that David Neiwert, the proprietor of the blog Orcinus, made in his book Death on the Fourth of July was that journalists almost universally fail to describe hate crimes charges in ways that make the legal implications of such prosecutions understandable to the general public. Since reading his book, I've seen this time and again.

So today I want to congratulate John Cote, writing in the San Francisco Chronicle, for getting this just right. A San Jose man, Geary Klamm, has admitted to sending stalking notes to a neighbor that both make threats to her child and express racial venom. (The note writer is white; the recipient is African-American.) In the course of investigating these threats, police turned up other notes from the man to a property manager in the same format and containing the same racial language. But he is not being prosecuted for those notes, because they do not contain any actual threats to do harm. Cote quotes the prosecutor explaining how the law works:

He doesn't face prosecution for the notes to the property manager because they didn't contain threats or other criminal elements, [Jay] Boyarsky said.

"The two letters do not constitute hate crimes because a hate crime is first and foremost a crime," Boyarsky said. "Spewing racial epithets is generally not criminal. It's obnoxious, wrong, impolite, disgusting, offensive -- whatever term you want to use -- but not a crime. And justifiably so, because we have the First Amendment."

Klamm faces one count of felony stalking and a hate crime enhancement for allegedly harassing his neighbor.

[My emphasis.] As this example makes clear, hate crime laws don't and can't prohibit mere speech -- they simply increase the penalties for crimes committed along with expressions of hate. Opponents of hate crimes law, some possibly merely confused, but most seeking to ensure protection for their right to express prejudice, aim to confuse us about what hate crimes do. If there is no crime (in this case making an actual threat of harm), there is no hate speech violation. If Mr. Klamm is convicted for making the threats, the hate crime charge will increase the penalty, but the unlawful act causing prosecution will have been to make the threat.