Excerpted From: Rebecca Melnitsky, Fighting Hate: Addressing a Wave of Antisemitism and Anti-Asian Violence, 95-OCT New York State Bar Journal 16 (September/October, 2023) (Full Document)


RebeccaMelnitskyAfter former President Donald Trump called COVID-19 the “Chinese virus” in a tweet on March 16, 2020, tweets with anti-Asian hashtags rose dramatically in the week that followed. In 2022, the Anti-Defamation League reported the highest number of antisemitic incidents in the U.S. since the organization began tracking them more than 40 years ago: 3,697.

The animosity and hatred directed at Jews and Asians in the United States have propelled President Joe Biden, federal and state legislators and the New York State Bar Association to take action. In May of 2021, Biden signed the COVID-19 Hate Crimes Act into law to get a better handle on the crisis. In the same month, the president established the White House Initiative on Asian Americans, Native Hawaiians and Pacific Islanders to coordinate a federal response to anti-Asian hate crimes and bias.

In May of this year, the president released a National Strategy to Counter Antisemitism to increase awareness and understanding of antisemitism, improve safety and security for Jewish communities and counter hate and discrimination. In July, the New York State Bar Association launched a Task Force on Combating Antisemitism and Anti-Asian Hate to examine the effectiveness of laws in the state and the nation.

Political polarization on social media, the COVID-19 pandemic and the reemergence of anti-Asian and antisemitic falsehoods have spread like a virus, energizing centuries-old hatred against Jews and Asians. And sadly, it is escalating.

“Antisemitic and anti-Asian bias in America is overt and disturbing, and it is increasing exponentially,” said Richard Lewis, president of the New York State Bar Association. “We have launched this task force because we are at a crossroads, and left unchecked, we can only expect that crimes against these two vulnerable groups will continue to spiral out of control.”

It's important to keep in mind the distinction between hate crimes and hate speech, which can often - though not always - be intertwined. Hate crimes are, first of all, crimes included in the criminal code, such as assault, manslaughter and murder. If it can be shown that these crimes were motivated by hate - such as a verbal rant by the perpetrator - then the offense is treated as a hate crime subject to additional penalties. Hate speech, on the other hand, is constitutionally protected, even though it may be highly offensive.

Finding a balance between allowing free speech and banning hate speech can be difficult. Famously, Nazis were allowed to march in Skokie, Illinois, in 1977, because a ban would have been an infringement on their free speech. While many countries, including Germany, ban symbols tied to hate organizations, the United States does not. Supreme Court Justice Anthony Kennedy wrote in his opinion for Matal v. Tam, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government's benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

In Brandenburg v. Ohio, the Supreme Court drew a distinction between advocating for illegal or hateful conduct versus intentionally inciting violence or illegal conduct. The NYSBA Task Force can perform a great service by clarifying the legal boundaries between protected speech and inciteful speech that leads to crimes against targeted groups.

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Actions To Fight Hate

In New York State, Gov. Kathy Hochul signed legislation last November that requires people convicted of hate crimes to go through training and education in hate crime prevention. On that same day, she established a campaign run by the Division of Human Rights to promote acceptance, tolerance and inclusion of the state's diverse population.

In July, the governor announced $51 million in security grant funding to fight hate crimes targeting cultural centers, museums and houses of worship. She also signed legislation to strengthen investigation and reporting requirements for hate crime incidents occurring on college campuses.

There is more that can be done, however. It is still difficult to prove bias in hate crimes against Asians because there is no universally recognized symbol of anti-Asian hate, such as a swastika in the case of crimes against Jews.

The New York State Bar Association's Task Force on Combating Antisemitism and Anti-Asian Hate will examine hate crimes laws and how they are used by law and enforcement and prosecutors. The task force will also look at proposed hate crimes legislation and make recommendations.

Proposed federal legislation lowers the statutory burden of proof for showing intent with respect to a federal hate crime offense. Current law holds a “because of” standard, which requires proof that a person's actual or perceived characteristic was a sole motivating factor in an attack. The proposed bill would change the standard from the sole motivating factor to a contributory motivating factor.

On the state level, a proposed bill would create presumptions that make it easier to prove hate crimes, in part by including if an attacker has an established history of prejudice or made biased or derogatory statements prior to the crime.

One recommendation is to revise Penal Law Section 485.05, which was last codified in the Hate Crimes Act of 2000. Currently, the law says that a person committing a hate crime selects their victim “in whole or in substantial part” because of their background. A proposal to remove the word “substantial” would put the statute in line with federal law and ease the burden of proof and make police and prosecutors more likely to charge biased offenses as hate crimes.

Another proposed revision is expanding all offenses, if motivated by bias, to count as hate crimes. The current law provides a lengthy list, but it leaves out certain offenses like graffiti, criminal obstruction of breathing and rape in the third degree.

Finally, current law only provides “negative guidance” by defining what is not a hate crime. Changing the law to include more examples of what constitutes a hate crime, including the actions of a defendant before and during an attack, would encourage investigators to look more deeply at the motivation behind a criminal act.

Another goal of the task force is to examine how to stop hate before it begins through education, especially in schools. While anti-bias, anti-bullying and diversity programing has been shown to be effective, it is not consistent in schools throughout the state.

“The New York State Bar Association's task force will look for strategies to stop the hate and find justice for those affected by such heinous acts,” said NYSBA President Lewis. “Hate does not belong in our communities.”

Rebecca Melnitsky is a content and communications specialist at NYSBA.