The 2016 election unleashed a flood of racist and nativist invective in America, and hate crimes across the country have skyrocketed. So you’d think that hate crime laws would be even more important than ever, and you might worry that the Trump administration’s apparent desire to cut government regulation in general, as well as Mr. Trump’s repeated derision of “political correctness” in particular, would lead to repeal or tepid enforcement of these laws. But that’s not the problem.
Hate crime and hate speech laws have always been problematic. Their constitutionality is questionable, and they’re ineffective at reducing hate crime. But because it’s important, activists and legislatures have struggled to draft effective and constitutional hate crime laws.
In the Trump era, though, it’s an outright surreal exercise to discuss what types of laws would be best at fighting bigotry and hate crime. When it’s the highest level of government itself, including the president and his chief strategist, that are the leading enablers—and sometimes disseminators—of bigoted speech and threats of discrimination, what kind of legislation (never mind its constitutionality) does anyone expect could beat back the predictable, even inevitable, increase in hate crimes and
hate speech?
Perpetrators of hate crimes now act with what they perceive as a newfound—and perhaps long-desired—government-issued license to air their hatred and commit their offenses. When you make anti-Muslim sentiment the coin of the current realm, you’re inviting people to invest in it. Any attempt to craft policies deterring hate crime goes beyond the proverbial rearrangement of deck chairs on the Titanic. It’s trying to decide what kind of decorative cushions to put on those seats while the ship is already sinking.
But this is worse, actually—more akin to taking the seats from the lifeboats.
Approaching the issue as per usual belittles the crisis of increased bigotry and hate crime. Ignoring that the rules of the game have changed by the very people entrusted with protecting us normalizes the bigotry-friendly climate and legitimizes the actions that have created it.
No constitutional scholar or practitioner can, in good conscience, act as an enabler in that way. We as lawyers, too, are officers of the court who have taken an oath to defend and protect the Constitution.
Parents struggle with what to tell their children about lying and bullying when they see their president do it without consequence. Likewise, it’s asking an awful lot of some little statute to deter people from acting out their bigotry and hatred when a president who encouraged it during his campaign elevates someone like Steve Bannon, proud legitimiser of and provider of the leading platform for the racist, anti-Semitic, anti-Islamist, anti-immigrant, misogynistic, hatred-peddling “alt-right,” to a position of power and influence. President Trump’s disavowal of even the worst of the crimes and invective his campaign unleashed has been far too few, far too late, and far too feeble.
Or entirely absent: when a reporter asked Mr. Trump—first explicitly acknowledging that he saw no evidence that Mr. Trump is himself anti-Semitic—about the recent rash of anti-Semitic incidents, including bomb threats to dozens of Jewish community centers, and what plans the administration had to address it, the president’s response was, “Number one, I am the least anti-Semitic person that you’ve ever seen in your entire life. Number two, racism. The least racist person. In fact, we did very well relative to other people running as a Republican.” He accused the reporter of insulting him and lying, told him to sit down, and added that bigoted harassment was actually the work of “the other side,” designed to foment anger among “people like you” against “people that love or live Donald Trump.” Unsurprisingly, there was not a word condemning or even commenting on the rise of anti-Semitism to its highest levels since the 1930s, let alone any plans to combat it.
Criminal laws are ham-handed tools for effecting social change, even in the best of times. But no law intended to curb hate has a chance when the president himself winks at it and encourages it daily.
