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Replies to ADL's Brian Marcus on hate speech, censorship, and tolerance

Replies to ADL's Brian Marcus on hate speech, censorship, and tolerance
Replies to ADL's Brian Marcus on hate speech, censorship, and tolerance

Previous Politech message: 

-------- Original Message --------
Subject: Re: [Politech] ADL's Brian Marcus replies to Politech over hate 
crimes, Net-censorship [fs]
Date: Mon, 26 Sep 2005 11:51:41 -0700
From: John Gilmore  
To: Declan McCullagh  

I see.  Despite its support for additional criminal penalties, the ADL
doesn't want to "censor" people who disagree with them.  It's not a
first amendment issue.  It's all an issue of contracts for Internet
service.  They just want the result that there are no channels of
communication available to people who disagree with them.  Now I


-------- Original Message --------
Subject: Re: [Politech] ADL's Brian Marcus replies to Politech over hate 
crimes, Net-censorship [fs]
Date: Mon, 26 Sep 2005 15:41:16 -0400
From: Lizard  
To: Declan McCullagh  
References: <> 

A brief translation:
"Despite our best and continuing efforts, the United States still won't
out-and-out ban speech we don't like. Thus, we concentrate on bullying
and intimidating ISPs which have the temerity to allow people to speak
freely. In addition, we work with European countries with
more...ah...'enlightened' attitudes towards free speech in order to make
sure THEY can seek to impose their rules on US based companies, such as
France trying to force Yahoo into imposing French speech laws on
American servers or face legal liability in France."

Lizard predicts: The next tactic in this battle will be to file lawsuits
against anyone hosting any site which is even tangenitally linked to a
hate crime.

There's more than one way to burn a book, and the ADL knows 'em all...
What you oppose, you become.

Of course, I've been singing this song for years: (Written in 1996 or so...) 

-------- Original Message --------
Subject: RE: [Politech] ADL's Brian Marcus replies to Politech over hate 
crimes, Net-censorship [fs]
Date: Mon, 26 Sep 2005 15:11:44 -0400
From: Matthew Tarpy  
To: Declan McCullagh  

 >Director of Internet Monitoring
 >Civil Rights Division

Does it strike anyone else that these phrases seem 
somehow...incompatible with each other?


-------- Original Message --------
Subject: Re: [Politech] ADL's Brian Marcus replies to Politech over hate 
  crimes, Net-censorship [fs]
Date: Mon, 26 Sep 2005 11:33:26 -0700
From: David Brownell  
References: <> 

> We believe that ISPs have the right to enforce their ToS and AUP when people
> violate them.

Yet if the ToS and/or AUP violate basic civil rights, then surely that
itself must be seen as a big problem.  Likewise when the ToS/AUP/etc is
being selectively enforced, to the effect of penalizing certain points
of view.  (For example, political speech critical of management's positions
may be deemed a violation, while speech supporting them encouraged.)

If the argument is that "corporate rights" must trump those of real people,
many of us fundamentally disagree.  Fundamental human rights are just that;
and systematic efforts to deny such rights are criminal, whether
they come from corporations, governments, or individuals.

- Dave

-------- Original Message --------
Subject: ADL's Brian Marcus replies
Date: Mon, 26 Sep 2005 15:19:14 -0400
From: Lamb, Christopher  
To: Declan McCullagh  

1st)  I know titles don't convey a true understanding of a person's
position, but doesn't "Director of Internet Monitoring" sound a bit
ominous?  Not particularly germane to the debate, but there you have it.
2nd)  How can ADL understand "...the complexities of freedom of speech"
while simultaneously advocating legislation that curtails free speech?
I agree with Mr. Marcus' argument that if a business violates an ISP's
ToS or the AUP, then that company should face the consequences (as with
any business that doesn't abide by agreements with it's partners).
However, what if these companies signed up with an ISP that didn't have
an AUP that banned hate speech?  Would he then go after the company?
What may be offensive to one person is someone else's righteous cause,
and their message is going to reflect that.  You can legislate speech
about as well as morality - you can't.   That's the point I believe Mr.
Marcus is missing - he can't understand the complexities of free speech
yet advocate curtailing anyone's speech (as long as that speech isn't
forced on someone).  It doesn't work that way.

CJ Lamb

-------- Original Message --------
Subject: Re: ADL's Brian Marcus replies to Politech over hate crimes, 
Net Censorship
Date: Mon, 26 Sep 2005 18:29:28 -0400
From: Frank Ney  
Organization: Darwin Prevention Society - We Keep Evolution From Happening


 >Nothing like having one's work misrepresented.

You only think you're being misrepresented because you have more faith in
government than any rational person should have.  It saddens me to have yet
another example of a person failing to learn from the Holocaust.

If your pet law is implemented, I guarantee the first person prosecuted 
going to be the owner of a neo-nazi web site or a "holocaust denier" as 
you so
fervently hope.  It's going to be someone like me, who dared tell Taking
Scissors Away that their proposed passenger screening system was a fraud
designed to punish political dissidents, as well as having to stones to call
George Bush and his drinking buddies Death Eaters (find someone in your
organization who reads Harry Potter if that appellation confuses you).

Your legislation proposes to punish people for thoughtcrime, a concept that
comes right out of _1984_.  How long will it be before anyone who is not a
Democrat or a Republican is investigated, tried, and convicted under your
so-called "hate crime" law?  Will we be sent to insane asylums, as was 
done in
the USSR to anyone who didn't cleave to Communism?  That's the path your 
are taking right now, and it's the reason why folks are up in arms about it.

Free speech includes speech you don't like or don't agree with.  Nothing 
you have to listen to it.  However, passing laws against it is the wrong 
and weakens the entire human rights paradigm.  If you can pass laws 
against one
form of speech, you can ban all speech.  It WILL happen.  BELIEVE IT.

Killin'    Stealin'    Whorin'      And thems the good guys.
"Serenity"  The Movie based on the Fox TV Show "Firefly"
Opens September 30, 2005 at a US theater near you 

-------- Original Message --------
Subject: Re: [IP] ADL's Brian Marcus replies to Politech over hate 
crimes,	Net-censorship [fs]
Date: Mon, 26 Sep 2005 21:02:28 -0400
From: Randall <> 
To: Dave , 
CC: Declan McCullagh  
References: <> 

On Mon, 2005-09-26 at 14:20 -0400, David Farber wrote:

 > I advise your readers to look at these materials so they can better
 > understand that we are not trying to "destroy the First Amendment."
 > And if they can cut through the hyperbole evidenced below and read 
our position
 > they can see we understand the nature of the Internet, the 
complexities of
 > freedom of speech and respect that there are different approaches to
 > online hate across the world.  We do not believe in attempts to 
 > hate out of existence, but do think that when hate motivates a crime 
 > should be enhanced penalties, and that freedom of speech is vital but 
companies   do not
 > have to host hatred.

Precisely where in the US Constitution is the federal government granted
the power to criminalize speech which is disliked by a certain powerful
interest group?  States have laws against threats of violence, but the
federal government?  Criminalizing "Hate speech"?

My aim is to agitate and disturb people. I'm not selling bread, I'm
selling yeast. -Miguel de Unamuno, writer and philosopher (1864-1936)

-------- Original Message --------

I read the ADL pages.  I see nothing there that disproves the claim
that "hate crimes" are essentially "people thinking bad things".

Thought is not, and cannot be, a crime, and anyone who tries to make it
one is an enemy of everything America stands for.

(Don't publish my name or email if you republish this.)

-------- Original Message --------
Subject: Re: [Politech] ADL's Brian Marcus replies to Politech over hate 
crimes, Net-censorship [fs]
Date: Mon, 26 Sep 2005 16:26:06 -0300
From: Stephen Downes  
To: Declan McCullagh , 
References: <> 

Declan McCullagh wrote:

 > By way of background, here's a cogent argument against "hate crime"
 > legislation:

There is no doubt that it is an argument; whether it is cogent is a
matter of opinion.

Let's examine it.

1. "All of the violent acts that would be prohibited under the proposed
bill are already crimes under state law [therefore]  federal legislation
is unnecessary."

Quite so. Violent acts are already prohibited. But the intent of hate
crime legislation is to counter acts or aspects of those acts that are
not violent, and therefore, not covered under existing law. This first
argument therefore misrepresents the nature and purpose of hate crime

2. "The so-called 'Hate Crimes Prevention Act' is not going to prevent
anything. Any thug that is already inclined to hurt another human being
is not going to lay down the gun or knife because of some new law passed
by Congress."

This argument presumes that intent and willingness to commit a violent
act is a static and unchanging characteristic of a person, impermeable
to external influences, which is a dubious assumption at best. Moreover,
it considers only the existing population of thugs and murderers and
concludes (somewhat tautologically) that they would be thugs and murders
no matter what. It does not contemplate the possibility that new thugs
and murderers may be created by the commission of hate crimes, nor even
that this is typically the intent of hate crimes.

One might characterize a hate crime this way: it is an attempt, through
act or deed, to convince someone else to commit a crime of violence.
Even if this attempt has a low probability of success, if exercised on a
large enough population the effect becomes almost certain. Therefore,
such attempts do in fact, in some situations, cause mayhem and violence.

Even if the people convinced to undertake acts of violence would have
done so in any case, it is possible (indeed, likely) that hate crimes
would convince them to commit more acts of violence than they otherwise
would, and to commit more serious crimes of violence. Moreover, there is
ample evidence from around the world - from Nazi Germany, from Rwanda,
from former Yugoslavia - that such attempts will also convince
previously peaceful people to commit their first act of violence.

3. "The whole concept of 'hate crimes' is fraught with definitional
difficulties... If the athletes had been the sole targets of the school
shooting, such a crime would not have been considered a hate crime."

The specific example cited by the author is misleading. No external
agenciy attempted to convince the murderers to target jocks. Moreover,
there is no evidence that the murderers expected their targeting of
jocks to result in other people targeting jocks. Nor is there any
evidence of an organized campaign targeting jocks. Nor, given existing
social beliefs and prejudices, could such a campaign have any reasonable
chance of success.

That said, were any of these conditions fulfilled, then advocacy of
violence against jocks would indeed be a hate crime. What makes the
current list of subjects - people of given race, nationality, sexual
orientation, etc - the subject of hate crime legislation is the
observation that  they have been the targets of organized attempts to
incite violence and that these attempts have been successful in
sufficient numbers so as to warrant especial mention.

There is nothing inherent in the characteristic motivating hate that
makes it the subject of hate crime legislation. You cannot examine the
'state of being a Jew' or 'the state of being black' and conclude
thereby that we should have special laws countering the advocacy of
hatred against these groups. The evidence for the need for such laws is
in the crimes themselves - people target blacks, people target Jews, for
whatever reason: this is empirically observable and measurable. And were
similar observations made with respect to hate against athletes, similar
laws would be required.

4. "Proponents of hate crime legislation believe that such laws will
increase tolerance in our society and reduce intergroup conflict. I
believe hate crime laws may well have the opposite effect. That's
because the men and women who will be administering the hate crime laws
(e.g. police, prosecutors) will likely encounter a never-ending series
of complaints..."

Hate crime legislation already exists in nations around the world, for
example, in Canada. While complaints about the administration of the law
do exist (as they do regarding the administration of any law) there is
no evidence that increased intolerance results. Indeed, most people
regard nations such as Canada, which has hate crime legislation, as more
tolerant than nations that do not. So empirically, there is little or no
support for this contention.

5. "Hate crimes legislation will take our law too close to the notion of
thought crimes. It is, of course, true that the hate crime laws that
presently exist cover acts, not just thoughts. But once hate crime laws
are on the books, the law enforcement apparatus of the state will be
delving into the accused's life and thoughts in order to show that he or
she was motivated by bigotry..."

This argument misrepresents the constitution of a hate crime as being
'Act plus thought'. The suggestion is that, over and above the act, what
is being punished is the thought. The author also suggests in this
argument that we may descend a slippery slope such that only the
thought, even without an attendant act, is punished.

But a hate crime is not merely 'act plus thought'. It is, rather, an act
intended to 'send a message' where the purpose of the message is, on the
one hand, to instil a climate of fear in the target group, and on the
other hand, to convince others to commit the same act. The purpose of
purpose of looking at books, magazines, computer files and the like is
to detect instances of that message.

And it is important to understand part of a hate crime over and above
the act of violence is not merely a thought; indeed, it is not even
merely the expression of a thought. A hate crime is an instance of what
is commonly known as a 'speech act' - that is, the person in question
does not merely hold or express a view, but rather, employs
communication (including voice, print and computer messages) in order to
commit an act (specifically, to convince other people to commit similar

Speech acts are not rare and mysterious; they are everyday events,
easily identified. When a person says 'I do' at a wedding, he is
commiting a speech act - by virtue of uttering some words, he is
entering into a contract. A general who commands his troops to 'Fire!'
is similarly committing a speech act. By virture of uttering the words,
he is causing an event, in this case, the firing of a gun by a soldier.
A person who yells 'Fire!' in a movie theatre is once again not merely
uttering an opinion, he is acting in such a way as to cause people to
rush to the exits.

Speech acts have consequences, and (through jurisprudence and precedent)
people are morally and legally responsible for the consequences of their
speech acts - that is why we have legislation concerning alimony, war
crimes, and criminal negligence.

A hate crime is a speech act where the utterer intends the act to be
successful, that is, to result in crimes of violence against the target
of the hate. In many cases, a hate crime also involves an element of
violence - the utterer is speaking through both words and deeds. That is
why merely punishing the deed is not enough. Part of the act consists of
uttering the words, and the commission of this speech act is an offense
for which the criminal must be held responsible over and above the act
of violence.

To wrap up...

We know that people can cause hate - and therefore, crimes of violence
against target groups - by expressing hate. History is filled with
examples. And we know that some people express such hate with the
specific purpose of causing such violence. To fail to take note of and
address such acts in criminal law is tantemount to taking the point of
view that certain crimes of violence are acceptable in society, and that
the causing of such crimes not against the laws and morals of society.

It has been my observation that nations that do not have, or do not
enforce, hate crime legislation are nations that, both internally and
externally, breed more hate and more violence. We find in such societies
not only an increased level of mistrust and holstility, not only an
increased tendency for violence and strife, but also very commonly a
tendency on the part of that society to export instances of its
prejudices and hate, to too easily allow itself new types of ate and new
expressions of hate.

Such a country, for example, is able very easily to dehumanize the
populations of other nations in which it is involved, to refer to all
inhabitants of such nations, whether freinds or foe, as 'gooks' and to
treat them as less than human, to fail to distinguish between members of
a population, to too easily slide into practices that involve the
indiscriminate torture and killing of those inhabitants.

For legislation, too, constitutes a type of act, and the sort of
behaviour a nation fosters or prohibits in its laws, is the sort of
behaviour it can expect, in the long run, from its citizens.

Stephen Downes  ~  Research Officer  ~  National Research Council Canada ~ __\|/__ Free Learning 

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