Nicholas Goldberg: We rarely prosecute bigots and racists who spew hate speech. And rightly so, we know that it’s too easy to convict people for such speech, because they don’t have to prove intent or culpability; we’re not going to find the intent or the culpability of white people who make the jokes about the police. (I’m white and make the jokes often about police.) We know that it’s too painful to convict people for jokes, because it’s too easy to convict people for racist speech. But we are often reluctant to prosecute speech that is racist.
So, I’m going to take a moment to ask the question, “Why?” Why aren’t we just going to prosecute racists and bigots who make racist jokes? Why do we have a special, almost special, legal loophole that we allow them to use to avoid having to show an intent, and a particular, and more specific, racist intent? Why? In addition to what I said about intent, why did we not try to prosecute in the first trial that was tried?
It’s a question that many people ask about the Ferguson and Staten Island shootings, and about what makes police officers “justified” in their behavior, in their decision not to intervene. It’s a very interesting question. There is a reason for it, because we have, as a society, decided that we will not prosecute individuals who say things that are racist. We have decided that if we prosecute the people who make the racist speech, people will cry and be angry, and people will not want to look at us in the future and say, “I saw that you prosecuted that person, but I saw that you had no proof that the person was a racist.”
It’s the same way with the Ferguson case. We have decided that, if we prosecute the shooter, we might look like we had no proof, we might