COVID-19 Hate Crimes Act (2021)

• Law: COVID-19 Hate Crimes Act
• Senate vote: 94–1 (April 22, 2021) — Only Senator Josh Hawley (R-MO) voted NO
• House vote: 364–62 (May 18, 2021) — All 62 NO votes were Republicans
• Signed by: President Biden, May 20, 2021
• Administered by: Department of Justice

The federal government passed a law to track what you say. Not crimes — incidents. Not convictions — expressions. The COVID-19 Hate Crimes Act creates federal infrastructure for reporting and cataloging "hate incidents" — a category that encompasses legally protected speech that the government has decided is offensive. Only one senator had the clarity to vote no. The other 93 senators, including most Republicans, voted to hand the federal government an online hate speech reporting system, in multiple languages, with a DOJ expedited review office standing behind it. They called it fighting anti-Asian discrimination. What they built is a monitoring system for constitutionally protected expression.

How It Passed

The COVID-19 pandemic was accompanied by a documented increase in verbal harassment and physical attacks against Asian Americans, partly fueled by rhetoric around the virus's origin. These were real incidents, some of them violent crimes that prosecutors could and should have charged. The COVID-19 Hate Crimes Act was presented as a federal response to that violence.

The bill passed the Senate 94–1 in April 2021, with Senator Josh Hawley casting the lone NO vote. In the House, 364 members voted YES and 62 voted NO, with all NO votes coming from Republicans. The overwhelming margin reflects the political cost of voting against a bill framed as protecting a minority community from physical violence — regardless of what the bill actually contains.

What the bill actually contains is worth reading carefully.

The law does not meaningfully change what constitutes a hate crime under federal law. Actual hate crimes — violent acts motivated by bias against race, religion, national origin, or other protected characteristics — were already federal crimes. The law's mechanism is different: it creates federal infrastructure for reporting and tracking a broader category called "hate incidents," funds the expansion of that infrastructure, and directs the DOJ to issue guidance making that infrastructure more accessible.

Senator Hawley's stated objection was that the bill's definition of "hate incidents" encompasses protected speech. His was the only vote in the Senate that acknowledged this distinction.

What It Does To You

The Critical Distinction the Law Blurs

Federal law already defines hate crimes as violent criminal acts motivated by bias. The standard is clear: there must be a crime. A person who beats someone while shouting racial slurs is committing a crime plus a hate crime. A person who posts an offensive tweet is engaging in constitutionally protected speech, regardless of how offensive that speech is.

The COVID-19 Hate Crimes Act's reporting and education provisions blur this distinction deliberately. The law directs the DOJ to create guidance on "online hate crime reporting" and supports education campaigns around "hate incidents" — a category that includes speech and expressions that never result in criminal charges because they are constitutionally protected.

When the government builds online reporting systems for "hate incidents" — not crimes, incidents — it is building infrastructure for tracking protected speech. People who feel that something someone said online was a "hate incident" can report it to a government-linked system. That report creates a record. The record is part of a government database. The speech being reported was legal. The person who engaged in it has no idea they are in a government system.

The Online Reporting Mandate

The law specifically requires DOJ to issue guidance to law enforcement on how to:

• Establish online reporting processes for hate crimes and hate incidents — in multiple languages
• Develop "culturally competent" education and training programs
• Expand access to reporting for communities affected by COVID-19-related discrimination

The multi-language online reporting requirement is designed to maximize the volume of reports submitted. More reports means more data. More data means more government tracking of incidents — including incidents that are constitutionally protected speech. The people reporting are exercising their own rights. The people being reported may have their protected speech entered into a government database without their knowledge and without any criminal process.

The "Expedited Review" Office

The law required the DOJ to designate an official to expedite review of COVID-19-related hate crimes. This created a dedicated federal office specifically focused on processing these reports and deciding which ones to pursue. That office also receives the non-criminal "hate incident" reports that flow through the online reporting systems. The official has discretion in determining what gets elevated and what gets filed away.

Rights It Strips

First Amendment — Government Tracking of Legal Speech

The Supreme Court has held consistently that "hate speech" — offensive, bigoted, even viciously racist speech — has full First Amendment protection when it does not constitute a true threat or direct incitement. Matal v. Tam (2017) reaffirmed this unanimously. Snyder v. Phelps (2011) protected even deeply offensive funeral protests. There is no "hate speech exception" to the First Amendment.

The COVID-19 Hate Crimes Act does not create criminal penalties for protected speech. It does something potentially more insidious: it builds the government infrastructure to track, record, and monitor legally protected speech under the label of "hate incidents." The First Amendment's protection means you cannot be prosecuted for offensive speech. It does not mean the government cannot build a database of people who said things it considers offensive.

The chilling effect is real and documented. When people know that their online speech may be reported to a government system — even a non-criminal system — they change what they say. Self-censorship before prosecution is still censorship. The infrastructure for monitoring is built. Future administrations inherit it.

Due Process — No Notice, No Process, No Hearing

If your speech is reported as a "hate incident," you are not notified. You are not given an opportunity to respond or contest the characterization. There is no hearing, no adjudication, no finding. A government-linked system receives a complaint about your legally protected speech, and you have no process to challenge it because no formal action has been taken against you — yet. The record exists. What it is used for depends on who runs the government.

Equal Protection — Unequal Scrutiny of Protected Characteristics

Federal hate crime law covers a list of protected characteristics. The COVID-19 Hate Crimes Act specifically targets COVID-19-related hate — speech and incidents directed against Asian Americans. This specificity is understandable given the documented increase in harassment. But it also means the federal "hate incident" monitoring infrastructure is calibrated around one ethnic community's complaints. Speech that targets other communities through other mechanisms may receive different treatment through the same infrastructure — or the infrastructure's scope may expand over time.

Documented Harms

"Hate Incident" Reporting Systems Track Protected Speech

Stop AAPI Hate, the advocacy organization that collected hate incident reports during the pandemic, documented tens of thousands of "incidents" — the vast majority of which were verbal harassment, not physical violence. Verbal harassment, however offensive, is constitutionally protected speech when it does not constitute a true threat. The federal reporting infrastructure being built under the COVID-19 Hate Crimes Act is designed to handle this same category of protected speech — documenting it, compiling it, and creating a federal record of it.

Proving Bias Motive Is Nearly Impossible

Hate crime prosecution requires proving that the defendant's bias was a motivating factor in the crime. This is a high standard. Prosecutors must typically show that the defendant stated the bias explicitly, had documented prior statements reflecting bias, or that no other motive explains the targeting. The FBI's hate crime statistics consistently show that reported hate crime incidents vastly outnumber prosecutions because the evidentiary standard for motive is extremely difficult to meet.

The COVID-19 Hate Crimes Act funds an expedited review process and expanded reporting infrastructure for incidents that will almost never result in prosecutions — not because the conduct is acceptable, but because the constitutional and evidentiary requirements for hate crime prosecution exist for good reasons. The result is a large, expanding federal database of reported incidents against a backdrop of almost no successful prosecutions.

Scope Creep: From COVID to General Infrastructure

The law was passed as a COVID-specific measure. The infrastructure it creates — online reporting systems, expedited DOJ review office, state and local guidance, education programs — does not disappear when COVID-related harassment declines. The systems built for one purpose become general-purpose monitoring infrastructure. Future administrations will decide what the infrastructure is used for. Building it was the irreversible step.

Who Pushed This

The bill was sponsored in the Senate by Senator Mazie Hirono (D-HI) and Senator Grace Meng (D-NY). It had strong support from Democratic leadership and the Biden administration.

The near-unanimous Senate vote (94–1) reflects the political dynamics: voting against a bill framed as protecting Asian Americans from violence is politically costly, regardless of the bill's actual content. The 62 House NO votes — all Republican — reflect concern about the "hate incidents" language and the federal speech monitoring infrastructure.

Senator Josh Hawley (R-MO) was the lone Senate NO vote. His stated objection was that the bill's "hate incidents" category would capture protected speech and create federal infrastructure for government monitoring of constitutionally protected expression.

Key Votes

Senate — April 22, 2021: 94–1

Senator Josh Hawley (R-MO): the only senator with a clean record on this vote.

The 93 YES votes include virtually all Republican senators. This is one of the most bipartisan surveillance-enabling votes in recent congressional history.

House — May 18, 2021: 364–62

All 62 NO votes were cast by Republicans. Every Democrat voted YES. 62 House Republicans understood or suspected the problem with the "hate incidents" infrastructure. Their records are clean on this vote.

Why This Matters for We The Citizens

The pattern here is not limited to this law. It repeats across the bad laws catalog: create an emergency, attach it to a sympathetic cause, build infrastructure that outlasts the emergency. The COVID-19 Hate Crimes Act was written to address real violence against Asian Americans. What it built is an online federal reporting system for protected speech.

The word "incident" is doing enormous work in this law. A crime is a crime. An incident is whatever the reporting party decides it is. The government is now in the business of cataloging incidents — not crimes — that people consider hateful. That catalog is built on reports about protected speech. It exists. Future administrations will decide what to do with it.

The 62 House Republicans who voted NO understood this. One senator understood it. Every other member of Congress voted to build the infrastructure anyway.

See also: Bad Laws Overview