BY IAN FELS — Halloween has passed. With it’s passing, the ridiculous costumes that people wore are being promulgated throughout social media and permanently imprinted for the world to see. Now is when the backlash begins. One image that has resonated in the South Florida community is an image depicting a white male dressed as recently deceased Trayvon Martin, blood on his shirt, Skittles and Snapple in his hands, and black paint on his face. The instantaneous response was mortification and indignation. But the response should be, how far does the 1st Amendment extend to protect overt racist acts, and when do these acts become hate crimes punishable under the law?
Hate crimes are crimes based on prejudice towards another group. There is actually an unusual opposition to hate crimes because the crimes themselves add additional penalties based on the otherwise crimeless 1st Amendment protections. It is when these prejudiced thoughts are coupled with some overt act that the additional penalties are added. For example, a typical punch on another human being would be battery and potentially assault. The law already criminalizes both battery and assault. When the battery and assault are motivated by prejudice towards another person based on their race, religion, or sexual orientation, for instance, additional penalties are added to the assault and battery because it was motivated by “hate”. The issue is, unfortunately, that it is perfectly legal to be racist, even blatantly racist. Hate crimes criminalize what otherwise is perfectly legal when coupled with something that is already illegal and criminalized.
Furthermore, the dilemma becomes apparent when the overt act isn’t physical. The Federal Statute regarding hate crimes only explicitly mentions physical overt acts. However, many states have amended the law to include verbal assaults, harassment, and bullying. As long as these verbal acts are coupled with some real threat, than the verbal acts are criminalized under hate crimes as well. Moreover, can certain blatantly racist acts be harassment, bullying, or verbal assaults? Of course they can. Burning a white cross on a black person’s lawn is certainly a threatening maneuver intended to harass the black person living there. Aside from the obvious trespass, it would also be a hate crime. With this said, can painting your face black be a hate crime?
Blackface exemplifies racist stereotypes perpetuated over hundreds of years used formerly in theatre and vaudeville shows and more modernly to stereotype and characterize blacks in racially denigrated ways. Blackface today is inherently racist because it carries the same meaning from hundreds of years of racism- blacks are inferior, in fact the reason blackface exists is because they were not allowed to act in shows. However, the law allows racism. The law protects free speech. And the law permits people to paint their faces black, so long as it isn’t done in a threatening way, intended to harass, assault, or bully black people. But isn’t that exactly what blackface, regardless of intent, is doing? Of course it is. The problem is, hate crimes are established by intent, the act was intended to affect a certain group.
Sometimes the law can only go so far. Society must take the steps to police what is clearly racist, clearly repulsive, and clearly wrong.