“Jews, Blacks and lesbians will be leaving America if Trump gets elected—and he’s happy about it. This alone is enough reason to put your entire heart and soul into supporting this man.”
— Andrew Anglin founder and editor of the neo-Nazi Daily Stormer website: “Get Em Outta Here: Glorious Leader Calls for Kike Lena Dunham to Leave America,” April 26, 2016
 
“Fear. Now is the time for it … We want these people to feel unwanted. We want them to feel that everything around them is against them. And we want them to be afraid.”
— Andrew Anglin “Female Hajis Fear to Wear the Headtowel in Public After Trump Win—You Should Yell at Them”


Perhaps the most important thing to clarify about “hate speech” prosecution is that “hate” nor “speech”  by themselves are illegal or unconstitutional.  Rather, the context of both the hate and the speech combined must be examined.  The FBI has defined a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

On October 28, 2009, President Barack Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law, as Division E of the National Defense Authorization Act for Fiscal Year 2010 (P.L. 111-84; H.R. 2647). This law broadens federal jurisdiction over hate crimes by authorizing the Attorney General to provide assistance, when requested by a state, local, or tribal official, for crimes that (1) would constitute a violent crime under federal law or a felony under state or tribal law, and (2) are motivated by the victim’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. In other words, hate crimes are traditional crimes during which the offender is motivated by one or more biases considered to be particularly reprehensible and damaging to society as a whole. Prior to enactment, however, hate crimes were not separate and distinct offenses under federal law. Furthermore, federal jurisdiction over hate crime was limited to certain civil rights offenses.  The birth of this form of legislation can be traced to 1981 when the Anti-Defamation League of B’nai B’rith (ADL) had developed proposed model hate crime legislation, and advocates for tougher laws targeting “hate crime” began lobbying state and federal legislators.  Valerie Jenness and Kendal Broad, Hate Crimes: New Social Movements and the Politics of Violence (New York: Aldine De Gruyter, 1997) p. 32.

Likewise, Wisconsin defines hate crime as committing a crime against certain people or property by selecting them in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor's belief or perception was correct.  Wis. Stat. 935.645.  See WI JI Crim 996.  The statute was created by 1987 Wisconsin Act 348, effective date: May 3, 1988. It was amended by 1991 Wisconsin Act 291. In Wisconsin, crimes that may qualify as hate crimes are: Murder, Forcible Rape, Robbery, Aggravated Assault, Burglary, Larceny/Theft, Motor Vehicle Theft, Arson, Simple Assault, Intimidation, and Destruction/Damage/Vandalism.  However, crimes such as vandalism and simple assault were more frequently reported than more violent crimes such as murder and robbery.

It is critical to understand that a Wisconsin prosecution for a hate crime requires a prosecutor to convince a jury beyond a reasonable doubt that a defendant had an impermissible motive in selecting the victim.  The Southern Poverty Law Center, an Alabama-based nonprofit that tracks hate crimes and hate groups nationwide, said it has seen a rise in the number of hate groups operating in the country for the second consecutive year, up from 892 in 2015 to 917 in 2016. Nine of them operate in Wisconsin.
 
The importance of the increase in hate crimes is important.  The sponsor, State Representative David E Clarenbach, stated, "[T]here has been an alarming increase in crimes that seem to have been motivated by bigotry."'  Shirley S. Abrahamson, Susan Craighead, and Daniel N. Abrahamson, Words and Sentences: Penalty Enhancement for Hate Crimes, 16 U. Ark. Little Rock L. Rev. 515, 520 n. 19 (1994).  It should be noted the Wisconsin Supreme Court struck down the hate crime enhancer but Justice Shirley S. Abrahamson dissented from that opinion despite her personal belief the statute was unwise.  The Wisconsin decision was reversed by the US Supreme Court.

The 2016 increase in hate crimes is a reaction to Trump’s presidential victory.  As pointed out by the SPLC in 2016, In the immediate aftermath of Election Day, a wave of hate crimes and lesser hate incidents swept the country — 1,094 bias incidents in the first 34 days, according to a count by the Southern Poverty Law Center (SPLC). The hate was clearly tied directly to Trump’s victory. The highest count came on the first day after the election, with the numbers diminishing steadily after that. And more than a third of the incidents directly referenced either Trump, his “Make America Great Again” slogan, or his infamous remarks about grabbing women by the genitals.  In fact, “2016 was an unprecedented year for hate,” said Mark Potok, senior fellow and editor of the Intelligence Report. “The country saw a resurgence of white nationalism that imperils the racial progress we’ve made, along with the rise of a president whose policies reflect the values of white nationalists.”  Just as Trump’s promises to build a wall on the U.S.-Mexico border, block Muslim immigration, and restore “law and order” have emboldened nativists and racists, so has his history of casual misogyny and alleged sexual assault (“grab them by the pussy”) energized an explicitly sexist element within the noxious “Alt-Right” movement.

“Our Glorious Leader has ascended to God Emperor,” wrote Andrew Anglin, who runs the neo-Nazi Daily Stormer website. “Make no mistake about it: we did this. If it were not for us, it wouldn’t have been possible.”  Jared Taylor, white nationalist  founder of the New Century Foundation former editor of the racist journal, American Renaissance said that “overwhelmingly white Americans” had shown they were not “obedient zombies” by choosing to vote “for America as a distinct nation with a distinct people who deserve a government devoted to that people.”  In 2005 he said, “Blacks and whites are different. When blacks are left entirely to their own devices, Western civilization — any kind of civilization — disappears.”

Despite these problems, hate crime prosecutions cause concern that a criminal prosecution is being sought for what someone thinks.  Indeed, Democratic Senator Lynn Adelman opposed the bill for Wis. Stat. 935.645, asserting that it came perilously close to penalizing thought.  Senator Adelman, a practicing attorney, filed an amicus brief in Wisconsin v. Mitchell, 508 U.S. 476 (1993) case in the Wisconsin Supreme Court and appeared before the United States Supreme Court arguing that the law was unconstitutional.  See also, e.g., Susan Gellman, Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. REV. 333 (1991); James Weinstein, Hate Crime and Punishment: A Comment on Wisconsin v. Mitchell, 73 OR. L. REV. 345 (1994); Thomas D. Brooks, First Amendment Penalty Enhancements for Hate Crimes: Content Regulation, Questionable State Interests and Non-Traditional Sentencing, 84 J. CRIM. L. & CRIMINOLOGY 703 (1994); William J. Burnett, Wisconsin v. Mitchell: First Amendment Fast-Food Style, 4 TEMP. POL. & CIV. RTS. L. REV. 385 (1995); Gregory R. Nearpass, Comment, The Overlooked Constitutional Objection and Practical Concerns to Penalty-Enhancement Provisions of Hate Crime Legislation, 66 ALB. L. REV. 547 (2003).

The American Civil Liberties Union has explained that hate crime prosecution raises a number of concerns. First, they argued that penalty enhancement laws created unconstitutional ‘‘thought crimes’’ in violation of the First Amendment—that is, that the laws violated a defendant’s right to freedom of expression by punishing racist speech, mental processes, or opinions based upon the state’s disagreement with their ideological content. Critics also argued that the laws would have a ‘‘chilling effect’’ on free speech, because people would be fearful of exercising the right to attend racist talks or read racist literature because their activities might be brought into trial as evidence against them should they one day be charged with committing a hate crime. Challenges to the legitimacy and wisdom of the laws included the arguments that penalty enhancement is not warranted because bias crimes are no different from any other criminal act committed for an unpopular reason or that hate crimes are viewed as different only if one attributes some heightened sensitivity or weakness to the victims, who in most cases are members of minority social groups. Based on the latter argument, bias crime laws were sometimes characterized as stigmatizing or insulting to minority groups. Conversely, they also were viewed as insulting to other crime victims, because they were said to send the message that these individuals’ lives and well-being are not ‘‘worth’’ as much as the lives and well-being of minorities.  Critics also contended that hate crime laws would exacerbate rather than reduce tensions between groups, because they draw attention to the perpetrator’s group-based animus.  These arguments seemed valid in light of R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) in which the Supreme Court unanimously struck down St. Paul's Bias-Motivated Crime Ordinance and reversed the conviction of a teenager for burning a cross on the lawn of an African-American family for violating the First Amendment's protections for freedom of speech.

In Wisconsin v. Mitchell, 508 U.S. 476 (1993) (unanimous opinion) reversed 169 Wis.2d 153, 485 N.W.2d 807 (Wis. 1992).  A synopsis of the facts show that Mitchell and others, all African-Americans, were discussing a scene from the movie Mississippi Burning, in which an African-American child is beaten by a white man. Apparently inspired, Mitchell asked the group, "Do you all feel hyped up to move on some white people?" and directed the group to attack a young white boy who happened to pass on the other side of the street. Id. at 158-59, 485 N.W.2d at 809.  The Wisconsin Supreme Court held that "[t]he statute is directed solely at the subjective motivation of the actor-his or her prejudice. Punishment of one's thought, however repugnant the thought, is unconstitutional."  Id. at 170, 485 N.W.2d at 814.
In reversing, the US Supreme Court held that since such statutes remain tied to prohibited conduct, they do not chill free speech and are thus constitutional:

The sort of chill envisioned here is far more attenuated and unlikely than that
contemplated in traditional "over-breadth" cases. We must conjure up a vision of
a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that if he
later commits an offense covered by the statute, these opinions will be offered at
trial to establish that he selected his victim on account of the victim's protected
status, thus qualifying him for penalty enhancement. Id at 488-89

The Court found a state has a legitimate reason for singling out bias-inspired conduct for enhanced sentencing: “bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims and incite community unrest.” Id.  Moreover, the First Amendment “does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.  Id at 489. 
 
The United States Supreme Court’s opinon is an adoption of Justice Shirley S. Abrahamson’s dissent in the lower state decision where she explained the statute that "[t]he statute does nothing more than assign consequences to invidiously discriminatory acts." and I that "[t]he only chilling effect" [of the statute] is not on speech but on "lawless conduct."  Mitchell, 485 N.W.2d at 819.  Following Mitchell, states have defended the constitutionality of bias crime laws by arguing that their statutes do not interfere with the expression of prejudicial ideas, and are addressed solely to the implementation of those views in conduct. States have asserted their ability to differentiate speech from conduct, and to protect the former while punishing the latter.
​
As noted by the ACLU, in addition to the constitutional issues, hate crime laws raise important policy questions. Chief among these has been the question of which categories of social group membership to include among the punishable biases. The categories that have inspired the greatest controversy have been gender and sexual orientation. As a result, many states do not yet include gender or sexual orientation in their penalty enhancement statutes.

 

So long as authority inspires awe, confusion and absurdity enhance conservative tendencies in society. Firstly, because clear and logical thinking leads to a cumulation of knowledge (of which the progress of the natural sciences provides the best example) and the advance of knowledge sooner or later undermines the traditional order. Confused thinking, on the other hand, leads nowhere in particular and can be indulged indefinitely without producing any impact upon the world. --Stanislav Andreski, Social Sciences as Sorcery (1972, p. 90

The United States Supreme Court decided two landmark cases that were supposed to change how a court admits scientific evidence: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999.  These decisions were to transform the role of judges from passive rubber-stampers of accepted scientific processes to vigilant gatekeepers, passing on the validity and relevance of the science itself.  Gloriously, forensic evidence was proclaimed to free the wrongly accused and catch the guilty.  Somehow judges, most of which are not scientists, are provided evidence, frequently in the form of academic journals, by the lawyers about a legal dispute at trial.

Daubert and Kumho Tire have thus acquired a reputation as the antidote to a perceived indulgence for junk science in the courtroom: “Most of the state trial court judges surveyed believed that a purpose of Daubert is to guard against junk science.”  C. Welch, Flexible Standards, Deferential Review: Daubert’s Legacy Of Confusion, 29 Harvard J. Of Law & Public Policy 1085, 1101 (2005-06).  “Daubert was part of a three case trilogy that “dramatically tightened the rules for the admissibility of expert evidence in federal courts” to “crackdown on ‘junk’ expert testimony in federal courts.”  D. Bernstein, Disinterested in Daubert:  State Courts Lag Behind In Opposing ‘Junk’ Science, Legal Opinion Letter of the Washington Legal Foundation (June 21, 2002)  Judges are believed to be charged with the duty to understand and act as a gatekeeper (most attorneys do not know that term appears but three times in Daubert) about scientific principles.  Daubert even thought on occasion a jury will be prevented from learning of authentic insights and innovations because they were not.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S at 597.

In contrast to Daubert, Kumho Tire referred to something akin to the expression “junk science,” but not in the majority opinion. It appeared in Justice Scalia’s concurring opinion and only once. Referring to the trial judge’s discretion to choose the “manner of testing expert reliability,” Justice Scalia said that a judge has “discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.” Kumho Tire, 526 U.S. at 159 (emphasis in opinion). In all of Daubert and Kumho Tire, there is no other reference to any concern about “junk science.”

Kumho Tire, like Daubert, lacks any language barring expert testimony. In neither case did the Court worry that trial judges were allowing juries to hear too many unreliable opinions or that the standard for admitting opinion testimony had been tightened or even needed tightening. The Court offered this simple explanation of the gatekeeping function: “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152.

I am amazed at the naivety expressed by the Court in these decisions.  It assumes intellectual rigor on the part of academics and scientists.  That is a dangerous assumption.

As much as it is uncomfortable to admit, science is not always the dispassionate search for the truth.  As detailed by a book by William Broad and Nicholas Wade in Betrayers of the Truth: Fraud and Deceit in Science (Oxford University 1985) science is not a strictly logical process, with objectivity the essence of scientist's attitudes and errors being speedily corrected by rigorous peer scrutiny and experiment replication:

Our conclusion, in brief, is that science bears little resemblance to its conventional portrait. We believe that the logical structure discernible in scientific knowledge says nothing about the process by which the structure was built or the mentality of the builders. In the acquisition of knowledge, scientists are not guided by logic and objectivity alone, but also by such nonrational factors as rhetoric, propaganda, and personal prejudice. Scientists do not depend solely on rational thought, and have no monopoly on it.  Id. at 8-9.  Emphasis added

The Broad and Wade present a series of case studies associated with the conduct of scientific research, from the manipulation of results to the total fabrication of whole experiments  An example of how nonrational factors can come into play has been called the “Sokol affair.”  Social Text is an academic journal published by Duke University Press. Since its inception by an independent editorial collective in 1979, Social Text has addressed a wide range of social and cultural phenomena, covering questions of gender, sexuality, race, and the environment. Since 1992, it is published by Duke University Press. 
Alan Sokal, is a physics professor at New York University and University College London. In the May 1996 Spring/Summer "Science Wars" issue, Sokal had an article published in Social Text. The submission was an experiment to test the journal's intellectual rigor and, specifically, to investigate whether "a leading North American journal of cultural studies – whose editorial collective includes such luminaries as Fredric Jameson and Andrew Ross – [would] publish an article liberally salted with nonsense if (a) it sounded good and (b) it flattered the editors' ideological preconceptions".  Sokal, Alan D. "A Physicist Experiments with Cultural Studies", Lingua Franca, (June 5, 1996).

The article, entitled "Transgressing the Boundaries: Toward a Transformative Hermeneutics of Quantum Gravity", is absurd.  The article proposed that quantum gravity has progressive political implications, and that the "morphogenetic field" could be a cutting-edge theory of quantum gravity (a morphogenetic field is a concept adapted by Rupert Sheldrake in a way that Sokal characterized in the affair's aftermath as "a bizarre New Age idea").  It mocks the old-fashioned "dogma" that "there exists an external world, whose properties are independent of any individual human being and indeed of humanity as a whole", it proclaims categorically that "physical `reality', no less than social `reality', is at bottom a social and linguistic construct". By a series of stunning leaps of logic, it arrives at the conclusion that "the [Pi] of Euclid and the G of Newton, formerly thought to be constant and universal, are now perceived in their ineluctable historicity; and the putative observer becomes fatally de-centered, disconnected from any epistemic link to a space-time point that can no longer be defined by geometry alone". The rest is in the same vein.

Sokal himself exposed his pseudoscientific hoax article in the journal Lingua Franca.  There are other examples.
A disquieting paper entitled, “The Criminal Justice System Creates Incentives for False Convictions”  indicates that police, prosecutors, and forensic scientists often have an incentive to garner convictions with little incentive to convict the right person.. The authors Roger Koppl and Meghan Sacks, cite as an example one laboratory for which collection of court costs following guilty verdicts is the only stable source of funding. According to the paper, in Washington those found guilty following forensic evidence against them must pay a $100 fee, in Kansas the fee is $400, in North Carolina there is a fee of $600 for those found guilty following DNA evidence, similar rules apply in Alabama, New Mexico, Kentucky, New Jersey, Virginia, Illinois and Michigan.

It's not difficult to see how this situation creates a perverse incentive, but what make this case so incredibly worrying is how intrinsically vulnerable evaluation of forensic evidence is to bias. There is plenty of evidence to suggest that when a forensic scientist is given evidence about a case, their decisions regarding ambiguous fingerprint and DNA evidence can be swayed.

The paper cites a 2009 report by the National Academy of Sciences (NAS) which suggests that "the opinions of bloodstain pattern analysts are more subjective than scientific", other areas of forensic science that were assessed to rely heavily on subjective judgment included fingerprint analysis, handwriting comparisons, traditional hair microscopy, ballistics and impression evidence (e.g. comparisons of shoe and tire tracks).  The report concludes that “[w]ith the exception of nuclear DNA analysis, . . . no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”  Id. at 7.  Soon after the report was published, the United States Supreme Court acknowledged that many forensic sciences are subject to “[s]erious deficiencies.”  Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 (2009).

Thousands of cases are under investigation due to the lack of intellectual rigor by forensic scientists. 800 rape cases are under review due to one technician's poor work, another technician from a now closed lab may be responsible for thousands of wrongful drug convictions, hundreds have already been released and the investigation is still incomplete. A Minnesota lab was recently shut down after "a subsequent review by two independent consultants identified major flaws in nearly every aspect of the lab’s operation, including dirty equipment, a lack of standard operating procedures, faulty testing techniques, illegible reports, and a woeful ignorance of basic scientific principles....  (the lab) was run by a police sergeant with no scientific background, had no written operating procedures, didn’t clean instruments between testing, allowed technicians unlimited access to the drug vault, and didn’t have anyone checking anyone else’s work. Analysts didn’t know what a validity study was, used Wikipedia as a technical reference, and in their lab reports referred to “white junk” clogging an instrument.".