This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
To whom does society owe a duty?
That question has been discussed by philosophers, politicians, scholars, faith leaders and the general public for hundreds of years. The easy answer is that the vulnerable members of society deserve our greatest protection; on their behalf, we must be vigilant and steadfast. Perhaps this obligation is at its strongest when those vulnerable members of society are harmed simply because of who they are.
Meeting this obligation is not burden-free. It imposes on us the requirement to be sensitive to the frailties of others while recognizing society is rugged and discourse can be rigorous, vigorous and robust. That is legitimate and understandable. As Voltaire famously said: "I disapprove of what you say, but I will defend to the death your right to say it."
However, there is a sharp distinction between the right to free speech as guaranteed in the First Amendment and the right to act on that speech, thereby causing harm to another. One of the most important questions facing contemporary society is the extent to which intolerance must be tolerated.
Re-stated: What is the price of extremism and is the cost justifiable? That cost moves from the intangible and amorphous when harm is its result.
I know about hatred and its consequences. My parents are Holocaust survivors. My mother, while in hiding in Budapest, was taken to be shot by the Arrow Cross. My father survived both a labor camp and death march. Their only crime was being Jewish. Those who intended to kill my mother and work my father to death were motivated by the hate of unmitigated anti-Semitism.
I have faced death threats from neo-Nazis as a result of my writings. That, too, is hatred we must not tolerate.
It is imperative to acknowledge that crimes, when motivated by hate, add an element not present in the underlying crime itself. Acting on hate has terrible consequences and significances extending beyond an actual attack.
It is impossible to ignore the profoundly disturbing tone and tenor of conversation in the U.S. in the past months. We ignore it at our peril. Hate is a reality in present day America. There are a number of reasons for this. While we may disagree as to their cause, we must come together to punish those who attack others because of who and what they are. That must not be tolerated.
This is, tragically, not the first time the vileness of hate has permeated into our national culture and debate. The pages of history are filled with examples. One only has to look at pictures of lynched African Americans to understand the harm posed by hate.
Hate crimes are different from other crimes. Identifying and attacking another human being because of their race, gender, sexual preference, religion and ethnicity endangers not only the attacked individual but also broader society. It undermines our social fabric; it rips at our essence as an inclusive, welcoming culture.
Swastikas in New York City's subways, bomb threats to Jewish Community Centers, including in Salt Lake City, arson in a Texas mosque, reported harassment of people not speaking English on cellphones, attacks because of sexual preference, alleged urinating on a prayer rug at the University of Michigan are but a representative example of hate in America today.
There is, understandably, hesitation in some quarters in aggressively pursuing hate as an enhancement to a punishable felony. Some perceive it as an unwarranted limitation on free speech; others view it as an unjustified imposition on freedom of religion.
Those arguments are interesting but, when it comes to penalty enhancement for crimes motivated by hate, these are but red herrings. The crime has already been committed. The attacker deliberately targeted a particular individual or class of people for a specific trait they possess.
Utah State Sen. Daniel Thatcher (R-Salt Lake, Tooele) has sponsored a bill, Senate Bill 72, that addresses these issues. This is not the first time such a bill has come before the Utah Legislature. Previous efforts ultimately proved ineffective. The reasons are varied. Be that as it may.
In 2017 the incidents mentioned above give lie to the argument that hatred is in abeyance. The opposite is true. It is for that reason that Thatcher's legislation deserves our support. Prosecutors must have the tools to punish those who attack the vulnerable.
History is replete with tragic examples of society turning its back on crimes against its vulnerable members singled out for who they are. Let us not allow haters to win; let us resoundingly answer in the affirmative to the question to whom does society owe a duty.
The Utah Legislature must pass SB72.
Amos N. Guiora, J.D., Ph.D., is a professor at the S.J. Quinney College of Law, University of Utah, and author of the forthcoming book, "The Crime of Complicity: The Bystander in the Holocaust" (Ankerwycke Press, 2017).