The 6th Circuit reverses the hate-crime conviction of 15 Old Order Amish for cutting off the beards of Amish men and hair of Amish women.

Marty Lederman criticizes the court:

A critical part of the majority's decision is based upon its conclusion that the evidence did not necessarily prove that the victims' religion was a but-for cause of the assaults. That conclusion strikes me as untenable — indeed, deeply disturbing in its implications....

[T]he assaults... came in the wake of a profound rift within this particular Amish community.  [The Bishop of the Bergholz community, Samuel] Mullett had excommunicated several church members for challenging his leadership.... Mullett was angry.... The series of assaults then followed, under Mullett's direction. The victims were all Amish individuals who were apostates in Mullett's view.... As the court notes, Amish men do not trim their beards, and Amish women do not cut their hair, "as a way of symbolizing their piety, demonstrating righteousness and conveying an Amish identity.

The criminality of the assaults is obvious, but is it a federal crime, a "hate crime" under 18 U.S.C. § 249(a)(2)(A)? It is if it's done "because of the actual or perceived . . . religion . . . of [that] person." The problem is that the trial judge's instructions translated that into a need to find that the victims' religion was "a significant motivating factor," but the appellate court said religion needs to be the "but-for" cause (that is, without this motivation, the act would not have taken place).

Lederman assumes the court is right about that but buys the government's argument that the error was harmless.

Based solely on the undisputed facts described in Judge Sutton's opinion... it appears to be clear that at least some of the victims--those who were excommunicated or who left voluntarily, at a minimum--would not have assaulted but for the fact that Mullett viewed them as heretical.  (Mullet said that beard and hair cuttings would stop people from being “Amish hypocrites.”) And that's true even if the particular assailants were motivated in the first instance by other factors, such as interfamilial disputes or anger about nonreligious actions of the victims....

[And] isn't it plain beyond any doubt that the victims' religion was a but-for cause of the type of bodily injury that occurred here — the cutting of beards and hair?  The assailants obviously chose to use that very unusual form of assault because the hair and beards were of deep religious significance to the victims — indeed, to strike at a fundamental component of their religious identity, by deliberately imparting a tangible, humiliating public sign that the victims were religious outcasts.

Kathy Griffin tweets a graphic, comparing Phil Robertson and Matthew Shepard — not a victim/victim.

pic.twitter.com/5nGDM1FxWb
— Kathy Griffin (@kathygriffin) December 23, 2013

Twitchy decries the comparison mainly on the theory that Robertson committed no act of violence against gay people and also observing that "the murder of Matthew Shepard... might not have had anything to do with Shepard being gay after all, but rather with drugs."

Here's the book that came out last September examining that evidence that the murder wasn't about homosexuality but crystal meth: "The Book of Matt: Hidden Truths About the Murder of Matthew Shepard."

But let's take this a step deeper and compare the repression of free speech and the use of physical violence to control and oppress people. Murder — especially torture murder, like Shepard's — is a terrible crime. Is it even worse if it is a hate crime — that is, if the victim is chosen because he belongs to a group toward which the murderer feels hate? The reason it is considered worse is because of what it does to the minds of other members of the group.

We all fear crime, and if there is a lot of murder going on, it erodes our sense of well-being and may inhibit our freedom to move around town. But when the crime is hate crime, it has a disparate effect on the minds of the people, so that some are constrained and afraid more than others. That matters! In fact, spreading a false belief that a murder is a hate crime also imposes that disparate burden on members of the group that was supposedly targeted.

Hate speech similarly affects the minds of the members of the group against whom hate has been expressed, and it can produce the same kind of fear of violence that is caused by a report of a hate crime. Now, there is hate speech and there is hate speech. Think of the most virulent hate speech, and you should see how powerful it is, how justified and painful the fear is. In extreme cases, members of the targeted group should take alarm and even flee in terror. A purveyor of hate speech need not commit an act of violence to create a fear of violence. He might inspire others to commit those acts of violence, and even if he doesn't, the threat of violence alone has an effect. False reports of hate speech work the same harm.

In the set of statements that could be characterized as hate speech, what Phil Robertson said was not that bad. Many would argue for a narrow definition of hate speech such that what Phil Robertson said would not be in the set at all. Defining the category very broadly is a political and rhetorical move, and it isn't always effective. At some point — and perhaps with Robertson, we've hit that point — you're being too repressive about what can be said on issues about which decent people are still debating, and it would be better to hear each other out and remain on speaking terms.

There is more good to be achieved by talking to each other and not shunning than by treating another human being as toxic. In fact, to treat another person as toxic is to become hateful yourself. It's better to let the conversation flow, and if you really think your ideas are good, why switch to other tactics? What's the emergency? Especially when your cause — like gay rights — is for greater human freedom, you ought to resist becoming a force of repression.

Since making his controversial remark, Phil Robertson has put out the message that as a Christian he loves everyone. Love speech is the opposite of hate speech, and it has so much more to do with Christianity than the reviling of sin in the earlier remark. He wants to speak against sin, but it's a problem when you aim a remark at a kind of person who has, over the years — over the millennia — felt a threat of violence and the burden of ostracism. I think Robertson knows that.

That's what I want to say in this conversation that I think should flow on. The love is in the conversation. The conversation is an independent good, even if we never agree.

Come on, haters. Show the love.

It's Christmas Eve.

"Matthew Shepard's murder in 1998 became a symbol of hate crime that helped to drive anti-hate crime legislation.'

"But 'what if nearly everything you thought you knew about Matthew Shepard’s murder was wrong?'"

IN THE COMMENTS: n.n linked to an item from 2004, "New Details Emerge in Matthew Shepard Murder," which was about an episode of "20/20," which I see that I blogged about this material at the time and said:

Justice demands that we think clearly about criminal responsibility and not let our minds be clouded by evocative stories that mesh with our assumptions about the world and our social policy aspirations. I believe the cause of gay rights is a very good one, and I also think that if the cause is good, truth should serve it. If you think your cause is so important that you must put it ahead of the truth, you are deeply confused.

Then I watched the episode "20/20" and thought it was a murky collection of "interviews with people who had plenty of reason to lie."

Now that the public's strong reaction to the original "gay panic" story is known, the two murderers have every motivation to say it wasn't like that at all. And the people of Laramie can't appreciate having their town associated with bigotry, so they too have a motivation to retell the story. I have no idea what is true here. Since the men weren't convicted of a "hate crime" and, in any event, they pleaded guilty, their convictions are sound whether their motivation was robbery or bigotry.

I haven't looked into the new articles enough to know how much more there is, but Andrew Sullivan is interviewing the author of what is a new book, "The Book of Matt: Hidden Truths About the Murder of Matthew Shepard."