Constitutional Law

What If Racism Were A Crime?

No matter where you stand on the social or political spectrum, it is not hard for reasonable people to agree there are some societal issues that are troubling the citizenry.

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I have always been a pretty staunch First Amendment advocate. Everyone should have a right to say or write pretty much anything that can be put into words. And in a free society, citizens should have a right to express themselves in almost unimaginable ways. So long as no one is getting hurt.

As a layperson working in the legal industry for more than two decades, one cannot help but learn about the law. As a fan of our Constitution — and constitutions everywhere — I have learned a few things about fairness, equality, and the general rights of individuals.

Today, I think that no matter where you stand on the social or political spectrum, it is not hard for reasonable people to agree there are some societal issues that are troubling the citizenry. I would not presume to suggest that I have all the answers, but every once in a while a thought enters my mind that I cannot seem to shake.

What if we made it a crime to be racist?

I know, I know, we already have laws designed to deal with racist and discriminatory activities. The Fourteenth Amendment and the statutes legislatures have created, however, do not seem to go far enough. Indeed, we have created so-called immunities to protect violators of the Constitution. It is true that an individual or organization could be charged with violating someone’s civil rights. But how often does that work out?

The sad fact is that it is perfectly legal in the United States for hate groups to exist; to speak, write, and promote hateful ideas and activities. The only limit, according the Supreme Court, is the active promotion of immediate violence.

State and federal legislatures and their administrative agencies have enacted statutes, rules, and regulations designed to prevent or deter racism and other forms of discrimination. We even have circumstances in which prosecutors can designate behavior as a hate crime. But, for the most part, these laws add an aggravating factor to an existing crime. You tell me — have the current laws worked to deter the evil they are intended to eradicate?

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What if we declared that it is a violation of the law for any individual, group, or organization to speak, write, or espouse racist views or opinions. What would be the objections to the crime of racism in the first degree?

I suppose the first and most principled objection to such a law would be on First Amendment free speech grounds. But we already place limitations on free speech, don’t we? The classic example is falsely yelling “Fire!” in a crowded movie theater. We also punish false and misleading speech; you cannot steal another person’s words or ideas; we have limits on obscenity; and you cannot threaten the president.

While I am certainly not the arbiter of what may or may not be constitutional, I’ve searched my conscience, my moral compass, and frankly, I am okay with placing additional limits on free speech in an effort to eradicate racism.

Others might object and argue that we already have laws to deal with this problem. But do we? And how has that worked out to date?

Other countries have laws than ban speech and behavior. In Germany, it is a crime to promote Nazi ideology. Some nations have criminalized denying the Holocaust and other genocides. Prominent nations have outlawed certain writings. In the U.K., it appears they have taken an intermediate step of permitting citizens to report to police a racial or discriminatory incident.

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I was taught in school that laws generally have a foundation in evolving standards of morality. It has been suggested in more than one brief before the courts of civilized nations that the law needs to evolve with changing public opinion, interests, and policies. Given that there are clearly evolving thoughts on this issue, it is time we upgrade the legislation.

America has been dancing around this issue for hundreds of years. Whatever the cause of the reticence, it may be time we tackle the issue head-on. What have we to lose if we try it?

I honestly don’t know if making racism a crime will have an impact on racism in America or prevent or even reduce the wrongs faced by people of color still today, but maybe it is time that lawmakers take some bold steps to seriously attempt to address the issue.

Mike Quartararo

Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), a professional member association providing training and certification in e-discovery. He is also the author of the 2016 book Project Management in Electronic Discovery and a consultant providing e-discovery, project management and legal technology advisory and training services to law firms and Fortune 500 corporations across the globe. You can reach him via email at [email protected]. Follow him on Twitter @mikequartararo.

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