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Those for and against hate crime laws debate each other in the shadow of John Stuart Mill. Both accept the Millian premise that the state is justified in coercing an individual only to prevent harm to others and not to condemn that individual for holding objectionable beliefs, values, or preferences. They purport to disagree only about what that principle – the guiding tenet of modern liberalism – entails. Because hate crime laws distinguish between otherwise identical assaults based solely on offenders’ motives, the opponents of those laws see them as singling out hate criminals for additional punishment solely because of their noxious ideologies. The proponents of hate crime laws, in contrast, disclaim any interest in punishing offenders for their values and insist that such laws are warranted strictly by the greater harms that hate crimes inflict, both on their victims and on third parties. At that point, the debate usually turns empirical. Is the “greater harm” argument factually sound? Do the political sponsors of hate crime laws “really” believe that argument, or is the “greater harms” claim just a pretext for their illiberal desire to use state power to condemn values they abhor? My goal in this essay is to extricate the hate crimes debate from this pattern of argument.
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