Excerpted From: Dillon B. Yang, COVID-19 Hate Crimes: Why Hate Is Rising, and What the United States Can Do About It, 49 Journal of Legislation 166 (2022) (342 Footnotes) (Full Document)


DillonBYang“As much as I want to grieve and process the reality that she is gone, I have a younger brother to take care of and matters to resolve as a result of this tragedy.” This is the new and horrific reality of Randy Park, whose mother, Hyun Jung Grant, was one of the victims of the brutal Atlanta spa shooting. The spa shootings, which involved the hateful killings of six women of Asian descent in Atlanta, Georgia, in March 2021, put the AsianAmerican and PacificIslander (“AAPI”) community in complete shock and fear. Alarmingly, this senseless attack was not sui generis. Just weeks earlier in San Francisco, California, Vichar Ratanapakdee, an eighty-four-year-old Thai man, was violently shoved to the ground and sustained injuries that ultimately led to his death. In New York City, in the same month as the Atlanta spa shootings, seventy-five-year-old Pak Ho was attacked, robbed, and left with brain trauma that led to his death. And in Oakland, California, a sixty-five-year-old Filipino woman was beaten to the ground while a security guard shut the door on her. These are just a few of the hate crimes that have been reported since the beginning of the COVID-19 pandemic. In fact, reported hate crimes against Asians in sixteen of the nation's largest cities and counties are up 164 percent since mid-2020. New York City, for example, saw a spine-chilling spike in reported anti-Asian hate crimes of 223 percent in early 2021. Along similar lines, “anti-Asian hate speech increased by 2,770% in 2020 compared to 2019.”

Researchers linked this rise in anti-Asian hate crimes to the anti-China rhetoric of then-President Donald Trump, who referred to SARS-CoV-2, the virus that causes COVID-19, as the “Chinese Virus” on Twitter. In the days surrounding Trump's usage of these derogatory terms, researchers examined 700,000 tweets containing more than 1.2 million anti-Asian hashtags, which researchers have said are known to be a precipitate of hate crimes and the formation of hate groups. While Trump's remarks may have been a catalyst for the recent drastic rise in hate crimes, Asian- have long been suffering from hate crimes and hate speech. COVID-19 has simply added fuel to the fire, bringing an old issue into new light.

The roots of AsianAmerican bigotry stem back almost two centuries, when people of Asian descent immigrated and built communities within the United States. After the U.S. government formally abolished slavery, Chinese people came to the United States to meet the need for labor in industries such as railroads, sugar plantations, and mining. However, soon after, the Page Act of 1875 was passed. The Act required immigration officials to determine whether women immigrants from “China, Japan, or any Oriental country” had “entered into a contract or agreement for a term of service within the United States, for lewd or immoral purposes.” The Act promoted the “sex worker” stereotype and was used to prevent Chinese women from migrating to the United States. Soon after, in 1882, Congress overwhelmingly passed the Chinese Exclusion Act, which explicitly suspended immigration for all individuals of Chinese descent for ten years. Both of these exclusionary acts were not repealed for over sixty years.

This sort of discrimination continued into the 1900s, as an outbreak of bubonic plague struck San Francisco. While the outbreak likely began with a ship from Australia, the Chinese-American community was blamed for it because the first stateside victim was a Chinese immigrant. Overnight, law enforcement surrounded the Chinatown in San Francisco, preventing any non-white residents from entering or exiting. During the outbreak, Chinese residents were also subjected to home searches and property destruction by force. Progressing to the 1940s, tens of thousands of Japanese immigrants and Japanese Americans had built livelihoods and started families within the United States. But after Japan bombed Pearl Harbor and the United States entered World War II, the U.S. government forced over 110,000 Japanese Americans into internment camps for the duration of the war over suspicions that they might aid the enemy. Conditions in the camps were extreme--blazing hot in the summer and freezing cold in the winter. No spies were ever found either within or outside of the camps. The Japanese immigrants and Japanese Americans that survived and were freed from the internment camps returned to find their homes and businesses completely vandalized and in ruins.

Recognizing America's history of deep-seated oppression is a key starting place for the changes needed to prevent the illogical scapegoating and violence on the Asian population in the United States. The current situation has exposed the insufficient legislation and law on both hate crime and speech. Notably, hate speech receives some of the strongest protections under the Constitution. Sharp rises in hate speech have led to subsequent rises in discrimination and hate crimes against minority populations. While it is true that no single law can solve the deeply-rooted hate in our society, there is no denying that the federal government's and legislature's responses have been largely inadequate in deterring both hate crimes and speech. There is still opportunity for improvement and revision to the hate crime laws that aim to protect against these hateful acts. Further, responses outside of the criminal justice system are also necessary to permanently alter the course of hate crime and hate speech in the United States.

Beyond debating whether the current statutes on hate crimes are effective, some critics ask whether hate crime laws themselves are even necessary. Opponents of hate crime laws rely on the idea that perpetrators have already been tried and convicted for some sort of crime and therefore have already received a punishment. They argue that searching for evidence to establish the bias motivation behind a hate crime puts “an unnecessary burden on the police” and prosecutors. Opponents of hate crime laws also argue that punishing hate speech may inadvertently punish beliefs, which raises First Amendment concerns.

But supporters of hate speech laws respond that hate speech is dangerous because of its potential to legitimize intolerance, which can incite very serious and violent outcomes. They assert that hate crime laws are critical to promote equality and send a strong message rejecting hate, signaling that hatred based on identity and immutable characteristics will be punished with severity. Lastly, the impact of hate crimes and hate speech goes far beyond the act performed on an individual victim. Often, the victim and his or her community are left feeling fearful, isolated, and unprotected by the law. This sentiment was expressed perfectly by Lisa Lu, a new mom in the Bay Area. In an interview with NPR, Lu stated that “[she] felt like during the height of the pandemic it didn't feel safe for [her] to go outside ... [s]o that was especially scary, like the thought of [her] going anywhere and being attacked and anything happening to [her] baby.” These degrading acts fragment our nation's communities and damage the fabric of our society.

This Note uses the recent rise in hate crimes targeting Asians and AsianAmericans as a focal point to analyze the past and current state of hate crime and hate speech legislation in the United States. Part I highlights the history of hate crime legislation and the constitutional precedent on hate speech. Part II traces various reasons why current government action and response have been largely ineffective against hate crimes and speech. And Part III explores the recent passage of new hate crime legislation and offers further recommendations to diffuse the long-standing bigotry and violence towards minorities in the United States.

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The COVID-19 pandemic has negatively affected many, but it has been particularly devastating for the AAPI community. Reported hate crimes and hate speech against Asians have increased at an alarming rate in recent times. This sort of hate is not a new-wave issue--there is a long history in America of hate and bigotry against minority groups. This Note has argued that the government's response to deter hate crimes and hate speech has been largely ineffective. Hate crime legislation has severely lacked a centralized reporting mechanism, and U.S. Attorney's Offices are not incentivized to take cases that are not guaranteed convictions. Further, the Supreme Court, through its precedent, has been clear that hate speech effectively has complete protection under the First Amendment.

However, in response to the rise in hate crimes against the AAPI community, there have been new federal legislative acts that work to support previous federal hate crime legislation and deter the stark rise in hate crimes. While the new legislative efforts are commendable and give rise to hope, this nation's historically ingrained hate must also be resisted on many fronts. Combating hate crime and hate speech requires more than new legislative efforts--there must be action from individuals, communities, states, and organizations. These recent hateful attacks have wreaked incalculable damage to the AAPI community. The pillars that many of us look up to, our elders, have been specifically targeted. While we continue to mourn the loss of many in our community, there is an urgent need to act now (and in many ways) to work towards the herculean goal of disrupting systemic racism and deterring hate crimes in the United States.

J.D. Candidate, Notre Dame Law School, 2023; B.A., University of Illinois Urbana-Champaign, 2020.