Fenster writes:

Steve Sailer describes what he calls the “Sailer Boast”:

Whenever there is some remarkably dumb development flabbergasting the respectable pundits, I’ve no doubt explained the entire phenomenon years ago.

He illustrates the Boast by referencing his coverage of hate hoaxes, dating back to a column he wrote in May 2004 for The American Conservative.  The column detailed a fake hate crime pulled off by a visiting professor at Claremont McKenna College in California.

Or at least it appears to have been faked.  For what it’s worth the police concluded as much.  But the President of the college?  Not so much.  College presidents are expert at what Eric Eisenberg calls “strategic ambiguity”, and this president really pushed it to the edge.  While she was all too willing to profess complete clarity as to the meaning of the events when they were positioned as a true hate crime once the police announced it had been faked she got all fuzzy about it.

One has to learn to perhaps live with ambiguity here, and never know the answer and reach a closure because the likelihood of actual prosecution … is very small.

You can make your own mind up on these things.  I did, and still do.

All by way of presenting the Fenster Boast.  For the record, Fenster covered this same hate hoax at a pre-UR blog in March 2004, two months before Sailer.   Fenster’s various discussions of fake hate crimes are detailed here.

My positions on whether hate crimes are a useful legal category and how fake hate crimes should be treated have been mostly consistent but have wobbled a bit over time.  My current thoughts are as follows.

I resist the notion that hate crimes are to be identified with recourse to the motivation or state of mind of the perpetrator.  Yes there are various legal categories that allude to mental states (wanton or depraved indifference, for example).  But locating a particular motivation related to hate seems quite difficult, especially since there is a better way of looking at the matter.

Rather than attempt to find a hate crime in the psyche of an individual why not attempt to locate it in the circumstances of the crime itself, which are observable and from which reasonable inferences can be made?

We often find the right legal category by examining the circumstances. For instance, the circumstances of a particular murder may suggest a political assassination, something we may fairly wish to consider separately from a crime of passion made in the heat of the moment, judging it more harshly since the effects of the crime can extend way beyond the death of an individual and may negatively affect an entire polity.

And so the circumstances of another murder–a lynching, say–may suggest another kind of murder that goes beyond a crime of passion and is intended to cause damage more widely, creating an atmosphere of fear using the crime as a brutal message.  A separate category and a tougher treatment may be appropriate here as well.

But when we consider a true hate crime like a lynching we confront at least two somewhat separate kinds of violence.  The first is the taking of a life.  That is an underlying crime worthy of punishment irrespective of any social ripple effects intended.  Then there are the ripple effects.

When we consider a fake hate crime most often we are dealing only with the latter bad effects–the negative consequences of the message that the perpetrator hopes to send out via the fake.  Usually there is no actual crime to a person or property.

Of course you can have a situation in which a fake hate crime involves a real crime.  Calling in fake bomb threats is one example.  Or the planting of actual bombs: false flags that take lives have a long lineage.

But in most instances the main characteristic of a fake hate crime is that no first-order damage has been done.  There are only the reverberations.  This is what is likely happening in the Jussie Smollett case.

That creates something of a conundrum.  We do not consider the ripple effects themselves as subject to legal censure in the case of a real hate crime.  They have to be wedded to an actual crime.  Is the sending of a nasty or even brutal message to a societal sub-group actionable on its own?  How is it distinguishable from speech?

It seems very likely that Jussie Smollett was not assaulted.  No crime to the person.  But the social harm aspect is very much present.  Indeed, the social harm is two-fold or even three-fold.

First, there is the message of fear sent out to those who considered the story to be true, and took from it a reason to be fearful.  The facts do not warrant that conclusion but the damage is done nonetheless.

Second, there is the damage done to the categories of persons (whites, Trump supporters) who were cast in a very bad light by the fake act and the media coverage of an unfounded claim.

Third, and perhaps most important, there is the general damage done to the fabric of the polity as irrationality and passion squeeze out reason and civility.

It follows that one cannot fairly argue for fake hate crimes to be prosecuted “in the same way as” true hate crimes, as one often hears.  The two things appear to be symmetrically opposite to one another but, as is often the case with polarities, things that appear to be mirror images of one another are not. Fake hate crimes that are all about the ripple effects–and that constitutes most fake hate crimes–ought to be thought of as phenomena separate from true hate crimes, and as subject to penalties tailored to their unique qualities.

That assumes of course that we can come to a kind of social consensus on how to treat hate hoaxes in law.  I don’t think that is an easy thing.  The “reasonable person” standard at the base of most law is made more difficult when divisiveness is the order of the day, and the reasonable person standard varies by identifiable sub-group.

Black racism is held to be impossible by those who define racism as prejudice plus power.  One might imagine a similar argument being advanced here: a fake hate crime aimed at those with power and privilege should be judged differently than a fake hate crime aimed at allegedly disadvantaged populations.  And I suppose that it can even be argued that a true hate crime against the so-called privileged is not possible for the same reason racism against whites is not possible.

Me, I prefer the flawed, impossible-to-achieve but pragmatically worthwhile goal of blind justice.  Old fashioned that way, I guess.