(This is part 1 of a 2-part article.)

Once again, the South Carolina State legislature is close to passing a bill to create a state “hate crimes” law, raising concerns that it could be used down the road by the government to curb free speech. The Clementa C. Pinckney Hate Crimes Act H.3014 passed through a vote in the SC House on March 8, 2023 but has stalled in the Senate. However, it could still be revisited this legislative year in a recently-called special session to deal with several outstanding items, so this topic deserves a closer look.

South Carolina proudly remains one of only two states that have resisted this legislation, thanks only to a small but steadfast core of Republicans in the General Assembly who remain committed to defending citizens’ First Amendment rights. Hate crimes legislation is an example of ongoing efforts to weaken constitutional speech rights in order to chill the messages of ordinary citizens and political dissidents. 

As recently as late 2020, there were said to be three South Carolina cities with hate intimidation ordinances: ColumbiaCharleston, and Greenville. According to an announcement by the Atlanta office of the Anti-Defamation League, “[a]ll three ordinances are derived from ADL’s model hate crime ordinance.”

Here are five things to know about this legislation: 

  1. What are hate crimes laws?
  2. Unintended consequences.
  3. Hate crimes laws negatively impact minorities, homeless, and the mentally ill.
  4. The South Carolina Chamber of Commerce is “spearheading” hate crimes legislation.
  5. Constitutional rights could be impacted. Which GOP elected officials voted for it?

1. What are hate crimes laws? 

Hate crimes or intimidation laws represent an added penalty for offenses against crime victims specially designated to have protected status. The penalties are tacked onto charges already deemed appropriate under our legal system for the actual crime. The purpose of hate crimes laws is to punish criminals for their words and intentions. Since it is impossible to define a person’s hateful thoughts, the text of hate crimes laws is written in such a way that is left open to interpretation. Some believe that the vagueness is intended to give aggressive prosecutors more power and greater flexibility to punish targeted groups of lawbreakers. This leads to legitimate concerns that a perpetrator’s race, political beliefs, opposition to government, or depth of religious conviction could determine how harshly, or if, the laws are applied.

An examination of the text of the South Carolina bill that recently passed through the House shows that it would require that the law determine whether the perpetrator acted out of a “belief or perception” regarding a victim’s “race, color, religion, sex, gender, national origin, sexual orientation, or physical or mental disability.”

2. Unintended consequences. 

There are many unintended consequences, but three significant ones are worth noting. First, hate crimes laws attempt to punish constitutionally-protected speech. If otherwise-protected spoken words or written texts are linked to a crime, in effect those would become punishable speech under this category of law. Most of us have heard the increasingly prevalent but illogical claim that “words are violence.” These laws are one step closer to legal punishments for mean, profane, or reprehensible words and thoughts. This law could become a weapon in the hands of a biased prosecutor to silence expressions of socially unpopular viewpoints. 

Second, we should all be concerned about the inclusion of words like “gender” when specifically defined as unique from sex. Caution should especially greet words like “gender identity,” and “gender expression” when employed to describe legally-protected classes. Their use gives legitimacy to non-binary sex categories (imaginary “sexes” that are neither male nor female), codifying them as legally-protected characteristics. In effect, their inclusion uses the legal system to deny biological reality and normalize the irrational belief in “other genders.” It makes it appear as if our legal system affirms the existence of any number of additional sexes outside of the biological sex binary of male and female. Gender, as a word, used to be interchangeable with sex. But, increasingly, the notions of gender, “gender identity” and “gender expression” are used to stake a claim to a biological sex of choice (or to declare oneself genderless). But these terms more correctly represent a spectrum of behavior commonly associated with being masculine or feminine. Two very simplistic examples might be a “sissy” (boy) or a “tomboy” (girl) neither of which imply new sexes outside of the biological binary. Current law is constructed on the foundation of the biological sex binary and arbitrarily changing that definition is like yanking on the yarn of a knitted sweater which quickly unravels. 

As an example,  one manifestation is in K-12 classrooms where sex “identities” have spawned a menu of “neopronouns” that are unravelling English grammar. By teaching neopronouns to children, we signal a belief that multiple sex “identities” are normal, can be based on a person’s feelings rather than biology, and that we consent to the premise that these might even remain fluid throughout the day. Some neopronouns encompass non-human subjects like “tree” or “fae” (for fairy or fae folk). Clearly, it’s not about “Love is Love” rather it is part of a socio-political agenda to blur the sex binary and infect the law with the notion that multiple, non-biological sexes exist.

Third, opponents of this legislation are convinced that the next steps involve refining language to target even more offenses, potentially making it illegal to express negative views about someone’s religious faith, reaffirming the reality of the biological sex binary, or expressing personal convictions rooted in historical religious doctrine, among others. In the U.S., states with existing hate crimes law, Georgia for example, are subsequently pressured to establish additional legal definitions for specific kinds of “hate,” further entrenching notions of word crimes. In countries where citizens do not enjoy protections like those offered by the U.S. Constitution hate speech laws are used to persecute people for their beliefs. Essentially, the world has ventured into George Orwell’s prediction of penalties for “thought crimes.”

3. Hate crimes laws negatively impact minorities, homeless, and the mentally ill.

It may come as a surprise that citizens swept up in hate crimes legislation are often the most vulnerable among us. Nationally, social justice advocates confirm this and point to the unintended consequences as a reason for rejecting hate crimes laws. 

Glen Ford, Executive Editor of the Black Agenda Report stated his adamant opposition to any form of hate crimes legislation, citing the impact on minorities and poor people:

In the end, these kinds of laws always wind up being turned against the very people that they are supposedly designed to protect. … The people who get arrested the most and get the longest sentences, are still going to be people who are Black and who are poor.

Saida Grundy, an assistant professor of sociology and African American studies at Boston University, confirms that this type of legislation impacts minorities and adds to prison populations:

Instead of preventing future acts of hate and violence, … these laws bolster America’s already-thriving prison system. “We have the most hyper-punishment culture in the world,” [Grundy] said. “Police have been a danger to these communities, and now you’re putting in their hands to say, ‘Oh, well I don’t think that was racist,’” she said.”

Columbia, South Carolina’s “unintended consequences.” Anecdotal evidence from South Carolina supports assertions by Grundy and Ford that citizens of specific races and vulnerable classes are disproportionately charged. 

In 2019, the Columbia Council ordinance passed despite public opposition and added charges and penalties for crimes determined to have coincided with negative attitudes toward protected classes of individuals. Prior to the final vote, astute citizens provided some hypothetical examples of potential infringement on the U.S. Constitution’s first and second Amendments. Nevertheless, the ordinance included the perpetrator’s “intent to intimidate” as well as “actual or perceived” views:

A person who violates Sec. [specific cited legal passages] with the intent to intimidate a person in whole or in part because of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation (as defined in section 11-503)…gender identity, expression or national origin of any person is guilty of the separate offense of hate intimidation….

In the case of the Columbia City Council ordinance, arrests in the 12 months following its passage revealed a disproportionate impact on minorities, homeless, and mentally-impaired individuals and also raised concerns about over-zealous prosecution. Reporter Jessica Holdman, writing for the Post and Courier, studied the initial arrests of those charged under the law and found that it “appears to be sweeping up at-risk populations.” For the time period ending around October, 2020, “[t]he law has been invoked seven times since it was enacted more than a year ago. Analysis showed four of six accused of using racial slurs are people of color, two of them homeless and ‘at risk.’” Scant details about each of the arrests were available and precise evaluation remained difficult because, according to Holdman, some of the judicial records omitted the races of those involved. Councilman Howard Duvall was quoted as saying, “If that is happening, it is an unintended consequence,” although he conceded that only one arrest up to that time “was closest to” the Council’s original intent behind passing the ordinance. 

Holdman’s reporting on the Columbia ordinance further demonstrated lawyers’ alarm over the “overly aggressive” application and potential violations of constitutional speech rights. Despite proponents’ claims that speech remains protected, there persists a real concern about citizens being charged criminally for their unpalatable viewpoints. 

The Greenville ordinance was described as mirroring that of Columbia, but included the possibility of “restitution” to potentially cover “medical bills, counseling or therapy or damage to property.” Furthermore, the transgressor might be required to undergo re-education, counseling or engage in community service, and fines could possibly be turned over to unnamed recipients whose programs “combat biased-based crimes.”