Citing my
comments on last week’s verdict in Dharun Ravi’s “bias
intimidation” trial, Kenneth Jost, Supreme Court editor at CQ
Press,
notes that “libertarian and conservative critics” (progressives
too) complain that hate crime statutes “infringe on freedom of
expression” (as well as freedom of conscience), although such
arguments have been rejected by the Supreme Court. Jost
says Ravi was “found guilty of
anti-gay conduct,” not anti-gay views. That is partly
because he does not seem to have harbored anti-gay views, as I
pointed out last week and will discuss further in my column
tomorrow. In any case, Jost argues that “Ravi was rightly held
responsible for making his roommate feel vulnerable to all the harm
that anti-gay prejudice can bring about” by “singling out Clementi
as different…because of his sexuality.” To my mind, this emphasis
on Clementi’s (presumed) feelings, rather than Ravi’s intent, is
one of the case’s most troubling aspects.

Jost notes that Ravi faces up to of 10 years in prison but seems
to think that would be excessive. Michelangelo Signorile says so
explicitly, while
defending the verdict:

I don’t want to see Ravi deported, nor getting a
ten-year prison term, the maximum sentence for his crimes.

But the bottom line is that Ravi was offered a plea deal in
which he would have avoided jail time as well as deportation.
Instead, he and his legal team put faith in what they thought was a
homophobic judicial system, one that would slough off hate crimes
against gays—as it had so many times in
the past—and once again validate the “gay
panic” defense, which in this case was dressed up as the “teen
prank” defense.

That’s one way of looking at it. Or you could say Ravi refused
to plead guilty, even though it would have kept him out of jail and
(probably) in the country, because he did not think he had
committed a hate crime. As Ravi’s father
told Newark Star-Ledger columnist Mark Di Ionno
right before the verdict:

There is a principle here. My son was not raised to have hate in
his heart. We are not hateful people. My wife and I are not like
that. We have not raised our family to be like that. I know my son,
and he is not a hateful person. Whatever he did to Tyler was not
out of bias toward him.

In a CNN essay, George Washington University law professor Paul
Butler, a former federal prosecutor,
argues that people see Ravi as an anti-gay bigot because
they assume his webcam spying drove Clementi to suicide: 

A lot of people want a pound of flesh from Ravi because they
blame him for Clementi’s death. Tyler’s reaction was tragic, and it
was idiosyncratic. It is possible to deeply mourn Clementi’s death
and also to acknowledge that he probably had issues other than
Ravi. No judge in the country would have allowed a homicide
prosecution, because, legally speaking, Ravi did not cause the
death, nor was it reasonably foreseeable. Of the millions of people
who are bullied or who suffer invasions of privacy, few kill
themselves.

Citing Butler at TechDirt, Mike Masnick
compares Ravi to Lori Drew, a middle-aged woman who was blamed
for driving a 13-year-old girl to suicide by creating a fake
MySpace persona that befriended her before turning on her. Because
Drew had broken no laws, local prosecutors in Missouri declined to
charge her with anything (imagine that!), but that did not stop
federal prosecutors in California from
trying to lock her up for violating MySpace’s terms of service.
“Punishing people based on others’ suicides is a mistake,” Masnick
says, “because whether or not your actions are
seen as criminal depends almost entirely on how someone else
reacts to them.” Furthermore, “the incentive then is
actually for kids to seriously hurt themselves, if someone acts in
a mean way towards them, as that increases the likelihood of the
bully getting punished.”

For more on the constitutional case against hate crime laws, see
my 1992 Reason feature “What’s
Hate Got to Do With it?” and my 2007
column “Looking for Hate in All the Wrong Places.” 

[Thanks to Hans Bader for the Jost link.]