Gutting the First Amendment will cost us as a society


MEET federal Judge Whittaker J. Stang, who is old, dyspeptic and too good to be true:

"I like my clerks smart, young and pretty. And if anybody doesn't like it, they can sue me for sexual harassment, age discrimination, and -- I don't know -- brains discrimination, how's that? Can they sue me for intelligence discrimination yet? . . . Take note! I've hired black ones five or 10 times at least. They were also smart, young and pretty."

Judge Stang is one of many tangy characters in Richard Dooling's "Brain Storm," a hilarious novel about hate. Set in the near future, it is a serious novel of ideas, including Mr. Dooling's idea that laws mandating enhanced penalties for "hate crimes" create, in effect, thought crimes.

A mundane life

Joe Watson ("Like many lawyers, Mr. Watson originally went to law school because he had been unsettled by the prospect of graduation from college") has an expensive wife and a bland but remunerative job at an establishment law firm. Then Judge Stang assigns him to defend a racist lowlife who killed a deaf black man he found in bed with his -- the lowlife's -- wife. Mr. Watson loses his wife, temporarily, and his job, permanently, because, rather than plead his client guilty, he throws himself into the task of overthrowing the idea of "hate crimes."

In real life, the first U.S. laws criminalizing hatred made it illegal to use hateful speech or commit symbolic acts expressing hatred. These were declared unconstitutional because they were not "content neutral": If you painted a peace symbol on a synagogue, you got a mild sentence for vandalism; if you painted a swastika, you got 10 years for a hate crime. So instead of directly banning hateful speech and acts, legislatures enhanced the penalties for acts that seemed motivated by hate or that seemed to have occurred because of the victim's status or the perpetrator's hatefulness.

This distinction without a difference is, a Dooling character says, a bonanza for lawyers: "Hate could mean more business for them than crack cocaine. After all, hate is everywhere, and it's free!" But proving intent to do something is hard enough, without having to prove it was done with a bad attitude. Imagine the potential for abuse when the law invites prosecutors to prove to juries that a particular motive -- a proscribed hatred of a group accorded special government protection -- caused the killer to pull the trigger.

"Brain Storm" is a crash course in neuroscience, and the possible behavioral implications of neurological disorders. One of Mr. Dooling's characters is a scientist who says that believing in free will is akin to believing in leprechauns. The mind, she says, is "a symphony orchestra with no conductor" -- hundreds of billions of neurons cooperating to produce consciousness, and we have no idea how. But new brain-scanning technologies can produce, in effect, pictures of, say, rage or contentment -- the glucose uptake, oxygen consumption, blood flow and electrical or magnetic activities correlated with particular states of mind. So, is it unreasonable to postulate genetic, biological, environmental or medical causes of violence -- causes that can be removed?

The trouble is, the law holds us responsible for controlling our minds which, presumably, control our bodies. Unfortunately, government increasingly wants to inventory and furnish our minds.

Death of Joe Camel

Today government, although hard pressed to provide basic services, has ever more ambitious plans for fine-tuning citizens' minds. Joe Camel has been killed and Budweiser's frogs and lizards will soon find themselves in the government's gun sights as part of its metastasizing campaign against socially undesirable desires (and not only those of "kids"). Political hygienists bent on "campaign finance reform" are hot to gut the First Amendment to protect the (supposedly) gullible public from overdosing on "too much" political speech. To protect that fragile flower, womanhood (the law enshrines that stereotype), from "hostile work environments" (whatever annoys a particular woman on a particular day), a federal judge has held that use of gender-based terms such as "foreman" or "draftsman" could constitute sexual harassment. Government has found that classified ads for homes with an "ocean view" and with "family rooms" discriminate against the blind and singles, respectively.

So pay attention when Mr. Dooling says, "The day is fast approaching when all speech will be regulated in the interest of civil rights and the prosecution of hate criminals who commit gender crimes through the hostile and abusive use of illegal words." And read "Brain Storm" for a subtle, entertaining depiction of the tangle that results when government undertakes to punish not only crimes but states of mind.

George F. Will is a syndicated columnist.

Pub Date: 6/04/98

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