In Hiding from Humanity: Disgust, Shame, and the Law, Martha C. Nussbaum writes:
[O]ne might argue that treating a hate crime based on race or sex or sexual orientation more severely than a similar crime motivated, say, by hatred of one’s brother is a way of penalizing unpopular political opinions. The only difference between the two acts is the nature of the motivation, and the significant difference in the motivation, in this case, is that a political opinion is part of it.
I am not convinced by this retort. In all kinds of ways, the law already expresses a commitment to protecting vulnerable citizens and to penalizing especially severely those who prey on the vulnerable. Blackmailers, for example, get a higher sentence under the Federal Sentencing Guidelines if they prey on an “unusually vulnerable victim.” In a very interesting opinion, Judge Richard Posner argued forcefully that gay men in America are in that category.
The behavior of a person who commits an assault or a homicide motivated by hatred of a vulnerable group is relevantly similar: he chooses to prey, in a criminal manner, on an unusually vulnerable type of victim. A hate crimes statute would simply arrange that he, like the blackmailer under the federal guidelines, would receive an upward departure in sentencing.
We can also add to this the fact that hate crimes are generally serve to make a vulnerable group even more vulnerable. A blackmailer preying upon someone isn’t necessarily trying to make all members of this group more vulnerable, but those who assault blacks or gays aren’t just feeding off this vulnerability, they are helping perpetuate it by increasing levels of fear and anxiety.
The fact that hate crimes legislation is aimed not at punishing speech or ideas, but at protecting especially vulnerable minorities who have had to suffer violence because of their minority status, puts the lie to nonsensical attempts to pretend that anyone motivated by hate is guilty of a hate crime — for example, Eugene Volokh’s idea that a Muslim who drove into a crowd of random people must be guilty of a hate crime because he was seeking to get revenge for how Muslims have been treated.
Eugene doesn’t approve of hate crimes, that much is obvious, but as a lawyer he knows full well how hate crimes are defended and, therefore, must know full well that he is egregiously misrepresenting them here in a petty pique of sarcasm. His criticisms of and disagreement with hate crimes could be taken much more seriously if he had the decency to be honest in what they are about and could accept the legitimate interests behind having them. Such dismissals of what the legislation is about ends up being nothing more than a dismissal of the desire to protect vulnerable minorities — and that puts him in the position of helping make the minorities even more vulnerable.
Nor, I think, should we accept the contention that the penalized motivation is protected political speech. The wish to eradicate someone from the earth does have a cognitive content, to be sure: that this person ought not to exist, or ought to suffer pain. We should not evade the issue by denying that emotions can and do have cognitive content. But there is a huge difference between a person who writes a pamphlet saying that gays ought to suffer, or even that hate crimes should not be curbed (as in the letter I received), and a person who goes out and perpetrates such an offense. This difference informs the cognitive content of the two people’s emotional motivations. ...
The perpetrator of a hate crime has, in addition to his political opinions, a criminal intent, a specific type of hate-based mens rea, intrinsically directed toward conduct, that goes well beyond the content of the protected opinions expressed in the pamphlet. What is being penalized is a specific type of criminal intent, not just a specific type of opinion. Using similar reasoning, the U.S. Supreme Court has upheld enhanced penalties for hate crimes.
Critics of hate crimes sometimes say that all crime is hate crime. This is wrong — indeed, it’s so obviously wrong that one has to wonder if such critics has even the slightest familiarity with crime or the law. Some crimes are motivated not by hate but by other passions, like love. A great many crimes are motivated simply by greed. In fact, there are situations where a crime motivated by greed is punished worse than a crime motivated by passion — murder for money can receive a longer sentence than murder for hate or love.
Nussbaum makes it clear here why the punishment of something as a hate crime is not the same as the punishment of a hateful idea: a person who hates and wants Jews dead does not have the same thoughts as a person who hates and tries substantively advance the cause of killing Jews. There is a difference between the two which is significant and which is more than enough to prevent hate crime legislation from being an attempt to criminalize thoughts or ideas.