Terrorism and hate crimes as speech acts

I used to be a bit puzzled at the ideas of terrorism and hate crimes as specific criminal offences. After all, weren’t acts of violence already illegal? Why did we need additional charges on top of whatever criminal act was committed? Just because someone’s motive is political and not financial or personal or delusional shouldn’t magically transform something into terrorism, and as for hate crimes, is it better to kill someone you don’t hate? It didn’t make a lot of sense to me. Until I thought about it.

But first, let’s talk about an important limit to freedom of speech. If I tell you to give me your money or I’ll shoot you, that’s certainly a speech act, but it’s also a use of violence, even if I never actually shoot you. Indeed, if my threat persuades you to give me your money and I don’t need to follow through, it’s a successful use of violence. This is why we have laws against such behaviour, and why these laws pass constitutional muster even though they put a constraint on what you can and can’t say.

I don’t think laws against uttering threats are terribly controversial. Even strong advocates for freedom of speech usually accept that this kind speech is quite rightly criminalized. And that makes sense from a liberty perspective; after all, coercive violence or the threat thereof is antithetical to actual liberty, whether that coercion is coming from the state or some random thug. If you want people to be as free as possible, then you should be willing to accept constraints on the freedom to coerce people.

And that, ultimately, is why terrorism and hate crimes are and should be separate charges above and beyond any criminal charges for the actual acts of violence themselves. The thing to understand about terrorism is that it’s not just an act of violence; it’s also a speech act, in the sense that it’s meant to send a message, and that message is one of coercive violence. I mean, it’s right there in the name: terrorism. The people killed or hurt in a terror attack are victims of the attack, but they’re not the primary targets of the terrorism itself. The terrorist doesn’t care if the direct victims are terrified or not; the goal is to terrorize people who weren’t victims of the initial attack. In other words, terrorism is a coercive threat of (further) violence. It’s like if I shoot the person next to you before demanding your wallet, just to make sure you know I’m serious with my threat. Yes, they’re the victim of the shooting, but you’re the victim of the coercive threat. So there are two separate and distinct crimes here, the act of violence and the implied/explicit threat of further violence.

Hate crimes follow the same basic principle. The only real difference is that terrorism’s coercive threat is typically aimed at the population at large, whereas a hate crime is aimed at an identifiable subset of the community. Beating up someone you hate as an individual doesn’t really send a coercive message to anyone else; beating up someone because they’re a member of a particular group does. 

Against Presidential Immunity

    Some years ago I wrote a piece, on my oooold personal web page, discussing the case of a farmer who had killed his severely disabled daughter with carbon monoxide. There was ample reason to believe that he considered this an act of mercy, and that he believed she was suffering greatly. There was little reason to doubt that he loved his daughter. And yet there was no doubt that he had killed her, in clear violation of the Criminal Code of Canada. 

    In that piece, I expressed some sympathy for the man's predicament, but concluded that it was legally appropriate that he be found guilty. Indeed, because he clearly intended her to die and was not merely indifferent as to whether or not she survived his efforts, it definitely met the criteria for first degree murder, but because even the prosecutor thought a life sentence with no possibility for parole for 25 years seemed harsh for someone in his situation, he was only charged with second degree. I thought, and still think, that the appropriate way to address this kind of tragic case, if we feel a need for leniency, is through a pardon rather than a not guilty verdict.

    And yes, I know that a pardon is a risky thing to gamble on, because not everyone thinks his crime should be pardoned, and that might include the pardoning authority. Fine, so be it. But the point here is that taking a life is a very, very serious decision, and really ought to be taken seriously. If you do not think ending your child's suffering is at least important enough to warrant serving a life sentence, then maybe it's unrealistic to expect someone else to think you deserve to be pardoned. 

    So the recent U.S. Supreme Court decision granting immunity from criminal prosecution to the President for "official acts" strikes me as exactly the opposite of this kind of reasoning. I certainly would never say that the President might not be called upon to make extremely challenging and perhaps even criminal decisions. Ordering F-16s to shoot down a hijacked passenger jet, for example, is something we would all hope never becomes necessary, but is within the realm of possibility, and if there's any reason to doubt the extenuating circumstances, a pretty heinous crime.

    But here's the thing: I don't want someone to approach this question lightly. I don't want them to be "nimble" in deciding. I want them to only undertake such a fateful decision if they are willing to throw themselves at the mercy of the court and accept whatever judgment comes. Giving blanket immunity for "official acts" might be fine if we could trust that the decision-maker had a strong moral compass and character, but that's not something we can ever rely upon, especially if we offer them immunity up front. 

    This is a recipe for dictatorship, and not a benevolent one. Any leader who wants this kind of immunity absolutely should not be given it, and anyone who deserves it will not want it.